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B-131810, SEPTEMBER 18, 1957, 37 COMP. GEN. 197

B-131810 Sep 18, 1957
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1957 MILEAGE PAYMENTS WHICH WERE MADE FOR THE USE OF PRIVATELY-OWNED AUTOMOBILES BY UNITED STATES ATTORNEYS AND MARSHALS WITHIN AND OUTSIDE OF THEIR DESIGNATED POSTS OF DUTY WITHOUT DEDUCTION FROM THE COMPUTATION OF THE DISTANCE OF NORMAL TRAVEL BETWEEN HOME AND HEADQUARTERS FOR TRAVEL PERFORMED DURING THE PERIOD OF AUGUST 27. - WHEN THE MATTER WAS RECONSIDERED AND IT WAS HELD THAT IT WAS WITHIN THE ADMINISTRATIVE DISCRETION TO ALLOW MILEAGE WITHOUT THE DEDUCTIONS. - MAY BE WAIVED AND COLLECTIONS REFUNDED PROVIDED THAT THE RETROACTIVE APPLICATION IS NOT EXTENDED TO TRAVEL FOR DUTY PERFORMED EN ROUTE BETWEEN HOME AND HEADQUARTERS. ANDRETTA SAYS THAT A NUMBER OF PERSONS WHO ARE VITALLY AFFECTED BY THE DECISION OF JUNE 4.

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B-131810, SEPTEMBER 18, 1957, 37 COMP. GEN. 197

MILEAGE - USE OF PRIVATELY-OWNED AUTOMOBILES - UNITED STATES ATTORNEYS AND MARSHALS - PAYMENTS PRIOR TO DECISION OF JUNE 4, 1957 MILEAGE PAYMENTS WHICH WERE MADE FOR THE USE OF PRIVATELY-OWNED AUTOMOBILES BY UNITED STATES ATTORNEYS AND MARSHALS WITHIN AND OUTSIDE OF THEIR DESIGNATED POSTS OF DUTY WITHOUT DEDUCTION FROM THE COMPUTATION OF THE DISTANCE OF NORMAL TRAVEL BETWEEN HOME AND HEADQUARTERS FOR TRAVEL PERFORMED DURING THE PERIOD OF AUGUST 27, 1956, AND JUNE 4, 1957--- WHEN THE MATTER WAS RECONSIDERED AND IT WAS HELD THAT IT WAS WITHIN THE ADMINISTRATIVE DISCRETION TO ALLOW MILEAGE WITHOUT THE DEDUCTIONS--- MAY BE WAIVED AND COLLECTIONS REFUNDED PROVIDED THAT THE RETROACTIVE APPLICATION IS NOT EXTENDED TO TRAVEL FOR DUTY PERFORMED EN ROUTE BETWEEN HOME AND HEADQUARTERS.

TO THE ATTORNEY GENERAL, SEPTEMBER 18, 1957:

BY LETTER OF JULY 25, 1957, REFERENCES A-7, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, MR. ANDRETTA, REQUESTS OUR ADVICE REGARDING THE APPLICATION OF OUR DECISION OF JUNE 4, 1957, B-131810 (36 COMP. GEN. 795), CONTAINING A MODIFICATION OF THE RULE FOR COMPUTATION OF MILEAGE FOR USE OF PRIVATELY-OWNED AUTOMOBILES AND UNDER CERTAIN CIRCUMSTANCES.

ON JULY 17, 1957, THE DEPARTMENT ISSUED REGULATIONS TO THE UNITED STATES ATTORNEYS AND MARSHALS IN LINE WITH THE DECISION OF JUNE 4, 1957, AND MADE THEM EFFECTIVE IN THE FUTURE, AUGUST 1, 1957. MR. ANDRETTA SAYS THAT A NUMBER OF PERSONS WHO ARE VITALLY AFFECTED BY THE DECISION OF JUNE 4, 1957, CONTEND THAT SINCE OUR OFFICE HAS RECEDED FROM THE POSITION TAKEN IN FORMER DECISIONS, THE DEPARTMENT SHOULD TREAT THE NEW POLICY AS RETROACTIVE AND THEREBY OVERLOOK PAYMENTS WHICH WERE ERRONEOUS UNDER THE TERMS OF THE FORMER DECISIONS.

IT APPEARS THAT YOUR EXAMINING STAFF IN THE FIELD IS CONFRONTED WITH THIS PROBLEM EVERY DAY IN THAT THEY MUST KNOW WHETHER IN THE EXAMINATION OF ACCOUNTS THEY ARE TO OVERLOOK ANY CHARGES WHICH WERE MADE CONTRARY TO THE DECISIONS IN EFFECT AT THAT TIME.

MR. ANDRETTA SAYS THAT IF OUR DECISION OF JUNE 4, 1957, IS TO BE APPLIED RETROACTIVELY, THE QUESTION ARISES AS TO THE DATE TO WHICH SUCH RETROACTIVITY EXTENDS. IN MANY INSTANCES REFUND HAS BEEN MADE ON THE BASIS OF THE NOW SUPERSEDED DECISIONS AND THE QUESTION ALSO ARISES WHETHER THE INDIVIDUALS ARE ENTITLED TO RECLAIM SUCH AMOUNTS. MR. ANDRETTA ASKS THE FOLLOWING QUESTIONS:

1. PLEASE ADVISE THE DEPARTMENT SPECIFICALLY WHETHER IN THIS CASE THE DECISION OF JUNE 4, 1957, HAS ANY WORKABLE APPLICATION PRIOR TO JULY 17, 1957, THE DATE OF THE PROMULGATION OF THE DEPARTMENT'S REGULATIONS. 2. IF THE DECISION IS RETROACTIVE SO AS NOT TO DISTURB ANY PAYMENTS CONTRARY TO THE RESCINDED DECISIONS, PLEASE SPECIFY THE DATE TO WHICH THE NEW DECISION EXTENDS RETROACTIVELY, AND 3, IF THE DECISION IS RETROACTIVE, MAY REFUND BE MADE TO THOSE WHO HAVE REPAID AMOUNTS DISAPPROVED ON THE AUTHORITY OF THE RESCINDED DECISIONS? 4. MAY THE DEPARTMENT INITIATE SUCH REFUNDS OR MUST THE INDIVIDUALS FILE CLAIMS THEREFOR?

THE ESSENCE OF OUR DECISION OF JUNE 4, 1957, IS STATED AS FOLLOWS:

UPON RECONSIDERATION OF THE MILEAGE FIELD AS A WHOLE WE NOW CONCLUDE AS A GENERAL RULE THAT WHERE AN OFFICER OR AN EMPLOYEE IS PROPERLY AUTHORIZED TO USE A PRIVATELY-OWNED AUTOMOBILE FOR OFFICIAL BUSINESS, IT IS WITHIN ADMINISTRATIVE DISCRETION TO ALLOW HIM MILEAGE FROM WHATEVER POINT HE BEGINS HIS JOURNEY WITH NO REQUIREMENT THAT THERE BE DEDUCTED FROM THE COMPUTATION OF SUCH MILEAGE THE DISTANCE THAT THE EMPLOYEE WOULD NORMALLY TRAVEL BETWEEN HIS HOME AND HIS HEADQUARTERS, IRRESPECTIVE OF WHETHER HE PERFORMS DUTY ON THAT DAY WITHIN OR WITHOUT THE CORPORATE LIMITS OF HIS HEADQUARTERS CITY OR AT HIS HEADQUARTERS OFFICE. THE ADMINISTRATIVE OFFICIALS, HOWEVER, IN EXERCISING THEIR DISCRETIONARY POWER IN THIS MATTER ARE TO GIVE DUE CONSIDERATION TO THE INTERESTS OF BOTH THE GOVERNMENT AND THE EMPLOYEE. WHERE APPROPRIATE THEY MAY AND SHOULD IN THE EXERCISE OF THIS DISCRETION RESTRICT THE MILEAGE ALLOWABLE, BY WAY OF A REDUCED RATE OR DISTANCE. 36 COMP. GEN. 618; ID. 450; ID. 171; AND OTHER DECISIONS INCONSISTENT WITH THE RULE ANNOUNCED IN THIS DECISION ARE MODIFIED ACCORDINGLY. ( ITALICS ADDED.)

WHILE THE RULE THAT AN EMPLOYEE WHO PERFORMS DUTY EN ROUTE BETWEEN HIS HOME AND HEADQUARTERS OFFICE IS ENTITLED ONLY TO THE MILEAGE IN EXCESS OF THAT NORMALLY TRAVELED IN REPORTING TO HIS HEADQUARTERS OFFICE EACH MORNING AND IN RETURNING HOME AT THE END OF THE DAY WAS GENERALLY UNDERSTOOD AND FOLLOWED ADMINISTRATIVELY, IT APPEARS THAT SOME ADMINISTRATIVE MISUNDERSTANDING EXISTED REGARDING VARIATIONS OF THAT RULE AS ENUNCIATED IN OUR DECISIONS OF AUGUST 27, 1956, B-128764, 36 COMP. GEN. 171; DECEMBER 4, 1956, B-129398, 36 COMP. GEN. 450; AND FEBRUARY 28, 1957, B-128764, B-129398, 36 COMP. GEN. 618. THEREFORE, UNDER THE CIRCUMSTANCES WE WOULD NOT BE REQUIRED TO OBJECT IF YOUR DEPARTMENT IN ITS DISCRETION DETERMINES THAT PAYMENTS OR REFUNDS ARE OTHERWISE PROPER IN ACCORDANCE WITH THE NEW RULE ENUNCIATED IN OUR DECISION OF JUNE 4, 1957, B-131810, FOR TRAVEL PERFORMED ON OR AFTER AUGUST 27, 1956, WITH THE UNDERSTANDING THAT SUCH RETROACTIVITY WOULD NOT BE EXTENDED TO TRAVEL INVOLVING DUTY PERFORMED EN ROUTE BETWEEN HOME AND HEADQUARTERS OFFICE. ALSO, WE WOULD NOT OBJECT TO REFUNDS BEING INITIATED ADMINISTRATIVELY. THE QUESTIONS ARE ANSWERED ACCORDINGLY.

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