
    JOHN McFARLAND KEYSER v. THE UNITED STATES
    [No. 675-53.
    Decided June 7, 1955.
    Plaintiff’s motion for new trial overruled October 4, 1955]
    
      Mr. Taknadge M. Thorne for the plaintiff.
    
      Mr. Thomas E. MoGrail, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   JoNes, Ghief Judge,

delivered the opinion of the court:

During the years 1950 to 1953, inclusive, plaintiff was in the employ of the United States Bureau of Internal Bevenue. His headquarters were at Jacksonville, Florida, where his duties consisted chiefly of examining income tax returns of individuals and corporations to ascertain whether the returns filed with the Collector of Internal Bevenue at that point correctly reported incomes.

During each of those years, however, for periods ranging from 101 to 177 days he was detailed by the Bureau to the Virgin Islands to perform the duties for which he was ordered there. He was accompanied by his family. For these periods in the Virgin Islands he received a per diem allowance of $11 under the Travel Expense Act of 1949, 5 U. S. C. 836 (1946 Ed. Supp. Ill) (63 Stat. 166).

Plaintiff claims lie is also entitled to the additional cost of living allowance as authorized by section 207 of the Independent Offices Appropriation Act, as amended, 5 U. S. C. 118h (1946 Ed. Supp. Ill) (62 Stat. 194,1196,1205). Section 104 of the Supplemental Independent Offices Appropriation Act of 1949 (62 Stat. 1196, 1205) amended section 207 of the Independent Offices Appropriation Act.

The issue is whether plaintiff is entitled to reimbursement under both acts.

The General Accounting Office has ruled that plaintiff may not have reimbursement under both. Plaintiff received his per diem allowance under section 3 of the Travel Expense Act of 1949, supra, which provides that employees

* * * while traveling on official business and away from their designated posts of duty, shall be allowed, in lieu of their actual expenses for subsistence * * * a per diem allowance to be prescribed by the department or establishment concerned, not to exceed the rate of $9 within the limits of the continental United States and in case of travel beyond the limits of the continental United States not to exceed rates established by the Director of the Bureau of the Budget for the locality in which the travel is performed.

The plaintiff was allowed $11 per day as travel pay while in the Virgin Islands.

The Civil Service regulations governing cost of living allowances do not provide for such payment when an employee is in a travel status.

The plaintiff might well have been placed in the Virgin Islands on assignment, transfer or detail, and had he so requested that arrangement might have been made and then he would have been entitled to the cost of living differential, but in that event he would not have been entitled to travel pay. He sought and obtained travel pay, which was at a higher rate than would have been allowed for travel in the continental United States. Since he was classed and received pay as in a travel status he is not entitled to the additional allowance for one who is stationed outside the continental area.

Plaintiff is not entitled to recover and the petition is dismissed.

Laramore, Judge; Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.

FINDINGS OE FACT

The court, having considered the evidence, the facts as stipulated by the parties, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a citizen of the United States and during the years 1950, 1951,1952, and 1953 resided at Jacksonville, Florida, where he was employed by the United States Bureau of Internal Revenue. His duties consisted chiefly of examining income tax returns filed by individuals and corporations to ascertain whether such returns filed with the Collector of Internal Revenue at Jacksonville, Florida, correctly reported incomes.

2. During the above years plaintiff was from time to time directed to proceed to the Virgin Islands for the purpose of aiding the local officials of the employing agency in the audit of returns and collection of income taxes, spending the following periods there: from January 31 to July 14, 1950; January 31 to May 12, 1951; February 5 to July 31, 1952, and February 11 to June 5,1953. On each occasion he was accompanied by his family.

3. During the time the plaintiff was in the Virgin Islands he was paid a per diem allowance of $11, the rate determined by the Director of the Bureau of the Budget as applicable to the Virgin Islands, pursuant to authority contained in the Travel Expense Act of 1949,63 Stat. 166. (The maximum per diem allowance within the limits of the continental United States was $9.) In addition, for the period of duty in 1951 he was paid $512.29 as cost of living allowance, but this allowance was subsequently disallowed by the General Accounting Office and plaintiff refunded the amount.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is therefore dismissed.  