B-196851, AUGUST 6, 1981, 60 COMP.GEN. 630

B-196851, AUGUST 6, 1981, 60 COMP.GEN. 630

SUBSISTENCE - PER DIEM - TEMPORARY DUTY - DUAL LODGINGS AN INDIVIDUAL (EMPLOYED AS A PILOT) THROUGH NO FAULT OF HIS OWN AND IN CIRCUMSTANCES BEYOND HIS CONTROL SPENT THE NIGHT AWAY FROM THE TEMPORARY DUTY LOCATION TO WHICH HE EXPECTED TO RETURN. LODGING EXPENSES BOTH AT AND AWAY FROM THAT TEMPORARY DUTY STATION MAY BE PAID. ALSO, LODGING COSTS MAY BE PAID IF THE PILOT UNEXPECTEDLY REMAINS OVERNIGHT AT HIS PERMANENT STATION. PAYMENTS IN THESE CASES MUST BE BASED ON A DETERMINATION BY THE APPROPRIATE AGENCY OFFICIAL THAT THE EMPLOYEE ACTED REASONABLY IN RETAINING THE LODGINGS AT HIS TEMPORARY DUTY STATION. COMP.GEN. 690, B-164228, JUNE 17, 1968, AND SIMILAR CASES ARE OVERRULED; 59 COMP.GEN. 609, 59 ID. 612, AND 51 ID. 12 ARE MODIFIED (EXTENDED).

MATTER OF: MILTON J. OLSEN, AUGUST 6, 1981:

THE ISSUE IN THIS CASE IS WHETHER MR. MILTON J. OLSEN, AN EMPLOYEE OF THE UNITED STATES FOREST SERVICE, IS ENTITLED TO BE REIMBURSED THE LODGING COSTS HE INCURRED AT HIS TEMPORARY DUTY STATION WHEN AS A RESULT OF UNFORESEEN CIRCUMSTANCES HE WAS FORCED TO SPEND THE NIGHT AT HIS PERMANENT DUTY STATION. IN CONNECTION WITH THE STAY AT HIS PERMANENT STATION WE ARE ASKED WHETHER HE WOULD BE ENTITLED TO REIMBURSEMENT FOR ANY MEALS TAKEN AT OR IN THE VICINITY OF HIS PERMANENT STATION. WE ARE ALSO ASKED WHETHER MR. OLSEN IS ENTITLED TO BE REIMBURSED FOR DUAL LODGING COSTS HE INCURRED, ON A DIFFERENT OCCASION WHEN HE UNEXPECTEDLY SPENT THE NIGHT IN A CITY OTHER THAN HIS ORIGINAL TEMPORARY DUTY STATION HAVING RETAINED HIS ACCOMMODATIONS AT THAT STATION. MR. OLSEN IS ENTITLED TO BE REIMBURSED ON AN ACTUAL COST BASIS FOR THE LODGINGS WHICH HE DID NOT OCCUPY AT HIS TEMPORARY DUTY STATION ON BOTH OCCASIONS SINCE IT APPEARS THAT HE ACTED REASONABLY IN RETAINING THE LODGING AT THE ORIGINAL TEMPORARY DUTY STATION.

THESE QUESTIONS WERE PRESENTED BY MR. H. LARRY JORDAN, AN AUTHORIZED CERTIFYING OFFICER, NATIONAL FINANCE CENTER, UNITED STATES DEPARTMENT OF AGRICULTURE.

MR. OLSEN IS EMPLOYED AS A PILOT BY THE FOREST SERVICE. DURING THE FIRE SEASONS HE IS GENERALLY DETAILED FROM HIS PERMANENT DUTY STATION, OGDEN, UTAH, TO A TEMPORARY DUTY STATION TO ENABLE HIM TO BE AVAILABLE TO TRANSPORT PERSONNEL DURING EMERGENCY SITUATIONS. IN THIS CASE, MR. OLSEN WAS DETAILED TO BOISE, IDAHO, AND WHILE THERE HE CLAIMED AND WAS REIMBURSED ACTUAL SUBSISTENCE EXPENSES NOT TO EXCEED $41 PER DAY. THOSE OCCASIONS WHEN MR. OLSEN HAD TO LEAVE BOISE AND THERE WAS A POSSIBILITY HE WOULD NOT RETURN THAT NIGHT, HE WOULD CHECK OUT OF HIS MOTEL. IN TWO INSTANCES, HOWEVER, HE ANTICIPATED RETURNING TO BOISE, BUT DUE TO CONDITIONS BEYOND HIS CONTROL, HE WAS FORCED TO REMAIN AWAY FROM BOISE FOR THE NIGHT. AS A RESULT HE INCURRED EXPENSES FOR THE LODGINGS HE DID NOT USE.

THE FIRST INSTANCE INVOLVED A FLIGHT WHERE, DUE TO ENGINE TROUBLE, HE HAD TO REMAIN IN OGDEN, HIS PERMANENT STATION, OVERNIGHT AND HE STAYED AT HIS OWN HOME, ALTHOUGH HE RETAINED THE MOTEL ROOM IN BOISE.

THE SECOND INSTANCE INVOLVED A FLIGHT WHERE DUE TO REROUTING HE WAS COMPELLED TO STAY IN SALT LAKE CITY, UTAH, SINCE HE HAD EXHAUSTED HIS CREW LIMITATION TIME AND COULD NOT FLY ANY MORE THAT DAY. BOTH BOISE AND SALT LAKE CITY ARE HIGH RATE GEOGRAPHICAL AREAS HAVING LIMITATIONS OF $41 AND $49 RESPECTIVELY, AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED. THE CERTIFYING OFFICER ASKS IF MR. OLSEN IS ENTITLED TO ANY REIMBURSEMENT FOR THE COSTS HE INCURRED AT HIS TEMPORARY DUTY STATION WHILE HE WAS AWAY FROM IT THROUGH CIRCUMSTANCES BEYOND HIS CONTROL.

IN CONNECTION WITH THE FIRST INSTANCE WHEN MR. OLSEN SPENT THE NIGHT AT HIS PERMANENT STATION, THE GENERAL RULE IN SUCH CASES IS THAT THE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS OR OFFICIAL DUTY STATION, REGARDLESS OF ANY UNUSUAL WORKING CONDITIONS. SEE 53 COMP.GEN. 457 (1974); B-185885, NOVEMBER 8, 1976; AND B-185932, MAY 27, 1976.

THUS, HE WOULD NOT BE ENTITLED TO REIMBURSEMENT FOR THE COSTS OF ANY MEALS TAKEN AT HIS OFFICIAL STATION. HOWEVER, IN CERTAIN INSTANCES AN EMPLOYEE MAY BE REIMBURSED ON AN ACTUAL EXPENSE BASIS FOR COSTS (E.G., DEPOSITS ON LODGINGS) INCURRED IN ANTICIPATION OF TEMPORARY DUTY, OR WHEN TEMPORARY DUTY HAS BEEN SHORTENED BY OFFICIAL ORDERS. LODGING COSTS INCURRED IN ANTICIPATION OF THE ORIGINALLY ORDERED TEMPORARY DUTY MAY BE PAID EVEN THROUGH THE EMPLOYEE IS NOT IN A TRAVEL STATUS. SEE 59 COMP.GEN. 609 (1980) AND 59 COMP.GEN. 621 (1980). IN THOSE CASES WE HELD THAT WHEN AN EMPLOYEE HAS ACTED REASONABLY IN INCURRING OTHERWISE ALLOWABLE LODGING EXPENSES PURSUANT TO TEMPORARY DUTY TRAVEL ORDERS BUT THE ORDERS ARE LATER CANCELED FOR THE BENEFIT OF THE GOVERNMENT AND THE EMPLOYEE IS UNABLE TO OBTAIN A REFUND, REIMBURSEMENT OF THE EXPENSES SHOULD BE ALLOWED TO HIM AS A TRAVEL EXPENSE TO THE SAME EXTENT THAT THEY WOULD HAVE BEEN IF THE ORDERS HAD NOT BEEN CANCELED.

IT IS OUR VIEW THAT THIS RULE SHOULD BE APPLIED TO MR. OLSEN'S SITUATION, EVEN THOUGH IT DOES NOT INVOLVE THE CANCELLATION OR AMENDMENT OF ORDERS BY THE GOVERNMENT. THAT IS, IN SITUATIONS WHERE THE EMPLOYEE ACTS REASONABLY, AS DETERMINED BY THE AGENCY, IN INCURRING COSTS FOR LODGING BUT IS UNABLE TO OCCUPY SUCH LODGING BECAUSE OF CONDITIONS BEYOND HIS CONTROL AND THE COSTS ARE INCURRED INCIDENT TO HIS TEMPORARY DUTY, HE MAY BE REIMBURSED ON AN ACTUAL EXPENSE BASIS FOR THE LODGING COSTS TO THE EXTENT THAT THEY WOULD HAVE BEEN PAID HAD THE TEMPORARY DUTY BEEN PERFORMED.

THUS, IN THE FIRST INSTANCE MR. OLSEN MAY BE REIMBURSED FOR THE LODGING COSTS INCURRED IN BOISE EVEN THOUGH HE SPENT THE NIGHT AT HIS OFFICIAL DUTY STATION, SINCE HE ACTED IN A REASONABLE MANNER IN INCURRING THE COSTS.

WITH REGARD TO THE DUAL LODGING COSTS INCURRED IN BOISE AND SALT LAKE CITY, WE HAVE HELD IN THE PAST THAT IF IT IS DETERMINED BY AN APPROPRIATE AGENCY OFFICIAL THAT AN EMPLOYEE HAD NO ALTERNATIVE BUT TO RETAIN HIS LODGINGS ELSEWHERE, HE COULD BE REIMBURSED UP TO THE MONETARY MAXIMUM ON AN ACTUAL SUBSISTENCE EXPENSE BASIS TO AT LEAST PARTIALLY DEFRAY THE EXPENSES OF MAINTAINING TWO LODGINGS. SEE 55 COMP.GEN. 690 (1976) AND B-164228, JUNE 17, 1968.

HOWEVER, IN 51 COMP.GEN. 12, AS WELL AS IN 59 ID. 609 AND 59 ID. 612, LODGING COSTS INCURRED BY EMPLOYEES FOR LODGINGS THEY COULD NOT USE AS A RESULT OF A CHANGE IN THE GOVERNMENT REQUIREMENTS HAVE BEEN PAID WITHOUT REGARD TO THE FACT THAT PER DIEM COULD NOT BE PAID. IN THIS CASE THE EMPLOYEE REMAINS IN A TEMPORARY DUTY STATUS AND IS ENTITLED TO PER DIEM OR ACTUAL SUBSISTENCE EXPENSE REIMBURSEMENT. BUT HE HAS IN A SIMILAR MANNER INCURRED EXPENSES FOR LODGING WHICH HE COULD NOT USE. IN THE CITED CASES OTHERWISE ALLOWABLE LODGING COSTS HAVE BEEN PAID, NOT AS A PER DIEM OR SUBSISTENCE ALLOWANCE, BUT AS AN ALLOWABLE TRAVEL EXPENSE. SIMILARLY, IN THIS SITUATION BY ANALOGY TO THE RULE IN THOSE CASES WE BELIEVE THAT THE LODGING COSTS MAY BE PAID TO THE EXTENT THAT THEY WOULD HAVE BEEN PAYABLE HAD THE TEMPORARY DUTY NOT BEEN CHANGED. PAYMENT NEED NOT BE LIMITED UNDER THE PREVIOUSLY APPLIED DUAL LODGINGS RULE BUT MAY BE IN ADDITION TO PER DIEM OR ACTUAL SUBSISTENCE EXPENSES PAYABLE FOR THE TRAVEL AS ACTUALLY PERFORMED.

ACCORDINGLY, THOSE DECISIONS INVOLVING DUAL LODGINGS, WHICH RESTRICT THE EMPLOYEE TO THE DAILY ALLOWANCE AUTHORIZED TO PAY FOR BOTH LODGINGS, NEED NO LONGER BE FOLLOWED. IN THE FUTURE THE EMPLOYEE MAY BE REIMBURSED IN ACCORDANCE WITH EITHER THE PER DIEM OR ACTUAL SUBSISTENCE EXPENSE ALLOWANCE AUTHORIZED IN HIS ORDERS BASED UPON THE LODGINGS ACTUALLY OCCUPIED AND MAY ALSO BE REIMBURSED THE ADDITIONAL COST INCURRED FOR THE LODGING HE DOES NOT OCCUPY TO THE EXTENT SUCH COSTS WOULD HAVE BEEN ALLOWED HAD TRAVEL PLANS NOT BEEN CHANGED; IF AN APPROPRIATE DETERMINATION IS MADE BY THE AGENCY.

THE VOUCHERS SUBMITTED ARE RETURNED AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.