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Office of the General Counsel

Date: May 25, 2000
Matter of: [xxx]
File Number: 99-03600

OPM Contact: xxx

The claimant, a [xxx] employed by the [agency], seeks compensation for 1,636 hours spent traveling to various meat and poultry plants during the period from [xxx] to [xxx]. For the reasons discussed herein, the claim is granted in-part and denied in-part.

The statutory provision governing the issue raised in this claim, 5 U.S.C. ' 5542(b)(2), provides as follows:

(2) time spent in a travel status away from the official duty station of an employee is not hours of employment unless -

(A) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or

(B) the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively.

(Emphasis added.)

Congress has affirmatively prohibited payment for travel time unless the conditions of the statutory exception are met. See William C. Boslet, B-196195, February 2, 1981.

As explained by the agency, a veterinary medical officer's travel is compensable only when there is an immediate official necessity; where scheduling the travel is beyond the agency's administrative control; and where the veterinary medical officer's absence would essentially prevent the facility from operating.

As reported by the agency, while the claimant's headquarters plant and official duty station were in [xxx] during the period covered by his claim, the claimant was routinely assigned as a Arelief@ officer to provide temporary inspection coverage at plants throughout a wide geographic area. As concerned the travel for which the claimant sought compensation, the agency described the travel as having been performed in conjunction with covering assignments at plants, covering assignments at multi-inspector red meat/red meat and poultry plants, and covering single-inspector slaughter assignments. The agency explained that a relief officer travel is only compensable when there is an immediate need for veterinary expertise. Where there is not an immediate need, the travel is not compensable because it does not result from an event which could not be scheduled or controlled administratively. 5 U.S.C. ' 5542(b)(2)(B)(iv).

The agency reported that in submitting his claims to the agency, the claimant had initially claimed entitlement to compensation for more than 130 trips, but that he had subsequently excluded the claims for overtime travel performed in conjunction with covering assignments and for most of his travel to multi-inspector red meat slaughter establishments. The agency explained that all of the claimant's poultry assignments were to multi-inspector poultry plants, and that while it is desirable to fill inspector vacancies at multi-inspector facilities, both poultry and red-meat, it is not essential. These facilities are not required to shut down when there is less than the full complement of inspectors, and while agency regulations require, for example, that ante-mortem inspections be performed, these inspections may be performed by non-veterinarian, inspection personnel. We concur with the agency that claims in connection with travel to multi-inspector facilities are not of an immediate necessity and are, therefore, not compensable. See 69 Comp. Gen. 385 (1990).

After denying the claims in connection with travel to what the claimant acknowledged to be multi-inspector facilities, there remained 9 trips for which the claimant sought compensation. In reviewing these claims, the agency determined that the claimant had already been compensated for one of these trips, and after reviewing the other 8 trips, the agency determined that most of the claimant's travel constituted a normal commuting time.@ The agency explained with regard to these determinations, that the claimant was normally expected to travel 147 miles or for 12 hours from his residence to his duty station. See Steve F. Heller, B-175608, June 19, 1972.

While the agency was unable to retrieve all of the documentation relating to the claimant's travel, there is substantial evidence to support the finding that the claimant is entitled to overtime compensation for 29 hours. Accordingly, the claim is granted for 29 hours and denied for 1,607 hours.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court."

Control Panel