B-214886, JUL 3, 1984

B-214886, JUL 3, 1984

TRAVEL EXPENSES - TEMPORARY DUTY - DEVIATION FOR PERSONAL REASONS DIGEST: AN EMPLOYEE WHO IS STATIONED IN PORTSMOUTH, NEW HAMPSHIRE, AND RESIDES IN PORTLAND, MAINE, WAS ASSIGNED TO TEMPORARY DUTY IN ARLINGTON, VIRGINIA. BASED ON AGENCY OFFICIALS' VERBAL APPROVAL, WHICH WAS LATER CONFIRMED IN WRITING, THE EMPLOYEE TRAVELED TO KANSAS CITY, MISSOURI, ON THE THANKSGIVING HOLIDAY WEEKEND FOR PERSONAL REASONS. THE EMPLOYEE MAY NOT BE REIMBURSED FOR HIS TRANSPORTATION EXPENSES TO AND FROM KANSAS CITY, SINCE SUCH TRAVEL WAS NOT TO THE EMPLOYEE'S HEADQUARTERS OR PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION. FTR PARAGRAPHS 1- 7.5C AND 1-8.4F. FURTHERMORE, THE GOVERNMENT CANNOT BE BOUND BY THE ERRONEOUS ACTS OR ADVICE OF ITS AGENTS.

MICHAEL K. VESSEY - WEEKEND PERSONAL TRAVEL:

THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL NO. 4, REQUESTS OUR DECISION CONCERNING THE CLAIM OF MR. MICHAEL K. VESSEY, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE. THIS CASE WAS SUBMITTED UNDER OUR PROCEDURES FOR CONSIDERATION OF LABOR MANAGEMENT ISSUES INVOLVING APPROPRIATED FUNDS, 4 C.F.R. PART 22 (1984). THE PORTSMOUTH NAVAL SHIPYARD AND OTHER NAVY OFFICES WITHIN THE PENTAGON WERE SERVED WITH COPIES OF THE SUBMISSION, BUT NONE OF THESE OFFICES HAS PROVIDED US WITH THEIR VIEWS.

MR. VESSEY'S CLAIM IS FOR REIMBURSEMENT FOR TRANSPORTATION EXPENSES HE INCURRED DURING A THANKSGIVING HOLIDAY WEEKEND TRIP AWAY FROM HIS TEMPORARY DUTY STATION. THE EMPLOYEE'S CLAIM MAY NOT BE ALLOWED, FOR THERE IS NO AUTHORITY FOR SUCH REIMBURSEMENT. FURTHERMORE, IT IS NOT MATERIAL THAT NAVY OFFICIALS APPROVED MR. VESSEY'S TRAVEL, SINCE THE GOVERNMENT CANNOT BE BOUND BY THE ERRONEOUS ACTS OR ADVICE OF ITS AGENTS.

MR. VESSEY IS OFFICIALLY STATIONED AT THE PORTSMOUTH NAVAL SHIPYARD IN PORTSMOUTH, NEW HAMPSHIRE, AND RESIDES IN PORTLAND, MAINE. DURING THE PERIOD SEPTEMBER 20 TO DECEMBER 18, 1981, HE WAS AUTHORIZED TO PERFORM TEMPORARY DUTY IN ARLINGTON, VIRGINIA. HIS TRAVEL ORDER ORIGINALLY AUTHORIZED HIM TWO ROUND TRIPS TO HIS HOME IN PORTLAND DURING THE PERIOD OF THE TEMPORARY DUTY ASSIGNMENT.

BASED ON THIS TRAVEL ORDER, MR. VESSEY WAS ISSUED TWO GOVERNMENT TRANSPORTATION REQUESTS (GTR) VALUED AT $272 EACH FOR WEEKEND TRAVEL TO PORTLAND. MR. VESSEY REQUESTED THAT THE DESTINATION OF ONE GTR BE CHANGED TO KANSAS CITY, MISSOURI, SINCE HE HAD SUBLET HIS APARTMENT IN PORTLAND AND WISHED TO VISIT RELATIVES IN KANSAS CITY ON THE THANKSGIVING HOLIDAY WEEKEND. ALTHOUGH THE NAVY DECLINED TO ISSUE A NEW GTR, MR. VESSEY STATES THAT AGENCY OFFICIALS VERBALLY APPROVED THE CHANGE IN DESTINATION. MR. VESSEY USED ONE OF THE GTRS TO TRAVEL TO KANSAS CITY ON THE THANKSGIVING HOLIDAY. SUBSEQUENTLY, THE NAVY DID ISSUE A WRITTEN MODIFICATION DATED SEPTEMBER 10, 1982, TO MR. VESSEY'S TRAVEL ORDER WHICH PURPORTED TO AUTHORIZE THE PRIOR TRIP TO KANSAS CITY.

ON THE SAME DATE THAT THE NAVY ISSUED ITS MODIFICATION TO MR. VESSEY'S TRAVEL ORDER, MR. VESSEY SUBMITTED HIS TRAVEL VOUCHER FOR HIS TEMPORARY DUTY WHICH HE HAD COMPLETED 9 MONTHS EARLIER. UPON REVIEW OF MR. VESSEY'S TRAVEL VOUCHER, THE NAVY DISALLOWED THE TRAVEL EXPENSES ASSOCIATED WITH HIS TRIP TO KANSAS CITY WHICH HAD BEEN TAKEN FOR PERSONAL REASONS. THE AGENCY CITED OUR DECISION IN LEWIS T. MOORE, B-198827, AUGUST 3, 1981. THAT DECISION, WE HELD THAT AN EMPLOYEE COULD NOT BE REIMBURSED FOR THE TRANSPORTATION EXPENSES OF WEEKEND TRAVEL TO A LOCATION OTHER THAN HIS HEADQUARTERS OR PLACE OF ABODE IN ACCORDANCE WITH THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SEPTEMBER 1981) (FTR), PARAGRAPHS 1-7.5C AND 1- 8.4F.

THE UNION ARGUES THAT THE FACTS OF MR. VESSEY'S CASE ARE DISTINGUISHABLE FROM THOSE INVOLVED IN MOORE, CITED ABOVE, BECAUSE AGENCY OFFICIALS APPROVED HIS TRAVEL TO A LOCATION OTHER THAN HIS HEADQUARTERS OR RESIDENCE. IN THIS REGARD, MR. VESSEY CITES PARAGRAPH C4454 OF THE JOINT TRAVEL REGULATIONS, VOL. 2 (CHANGE 185, MARCH 1, 1981), WHICH PROVIDES THAT AN APPROPRIATE OFFICIAL MAY VERBALLY APPROVE A VARIATION IN A TRAVELER'S ITINERARY BEFORE THE TRAVEL IS PERFORMED, AND LATER CONFIRM THE VARIATION IN WRITING.

UNDER THE AUTHORITY OF FTR PARAGRAPHS 1-7.5C AND 1-8.4F, AN EMPLOYEE ON TEMPORARY DUTY MAY VOLUNTARILY RETURN ON NONWORKDAYS TO HIS OFFICIAL STATION OR PLACE OF ABODE AND BE REIMBURSED FOR TRANSPORTATION AND PER DIEM OR ACTUAL EXPENSES NOT TO EXCEED THE SUBSISTENCE AND TRAVEL EXPENSES HE WOULD HAVE BEEN ALLOWED HAD HE REMAINED AT THE TEMPORARY DUTY STATION.

WE CONSIDERED THE QUESTION OF WHETHER AN EMPLOYEE MAY BE REIMBURSED FOR TRANSPORTATION EXPENSES ON A COMPARATIVE COST BASIS WHEN TRAVELING TO A LOCATION OTHER THAN HIS DUTY STATION OR PLACE OF ABODE IN COMPTROLLER GENERAL DECISIONS PHILIP J. SULLIVAN, B-205696, JUNE 15, 1982, AND LEWIS T. MOORE, B-198827, AUGUST 3, 1981, AS INDICATED ABOVE. IN THOSE DECISIONS WE NOTED THAT FTR PARAGRAPHS 1-7.5C AND 1 8.4F BY THEIR TERMS ARE LIMITED IN APPLICATION TO INSTANCES IN WHICH THE EMPLOYEE RETURNS TO HIS "OFFICIAL STATION OR HIS PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION." THEIR INCLUSION IN THE TRAVEL REGULATIONS IS ATTRIBUTABLE TO THE LONG-STANDING PRINCIPLE EXPRESSED AT FTR PARAGRAPH 1- 7.6A THAT NEITHER PER DIEM NOR SUBSISTENCE EXPENSES MAY BE ALLOWED AT THE EMPLOYEE'S PERMANENT DUTY STATION OR PLACE OF ABODE FROM WHICH HE OR SHE COMMUTES DAILY TO THE OFFICIAL STATION. WHERE AN EMPLOYEE ON TEMPORARY DUTY TRAVELS ON HIS NONWORKDAYS TO A LOCATION OTHER THAN HIS HEADQUARTERS OR RESIDENCE, THE PROVISIONS IN FTR PARAGRAPHS 1-7.5C AND 1-8.4F FOR REIMBURSEMENT OF ROUND-TRIP TRAVEL DO NOT COME INTO PLAY. SINCE MR. VESSEY'S TRIP TO KANSAS CITY WAS TO A LOCATION OTHER THAN HIS HEADQUARTERS OR PLACE OF ABODE, HE MAY NOT BE REIMBURSED FOR THE TRANSPORTATION COSTS INCURRED.

THE FACT THAT AGENCY OFFICIALS VERBALLY APPROVED MR. VESSEY'S TRAVEL TO KANSAS CITY IN LIEU OF PORTLAND, AND LATER CONFIRMED THIS APPROVAL BY AMENDING HIS TRAVEL ORDER, DOES NOT PROVIDE A BASIS FOR PAYING MR. VESSEY'S TRANSPORTATION EXPENSES. IT IS A WELL-SETTLED RULE THAT THE GOVERNMENT CANNOT BE BOUND BEYOND THE ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR BY REGULATION, AND THIS IS SO EVEN THOUGH THE AGENT MAY HAVE BEEN UNAWARE OF THE LIMITATIONS ON HIS AUTHORITY. SEE M. REZA FASSIHI, 54 COMP.GEN. 747 (1975), AND COURT CASES CITED THEREIN. FURTHERMORE, WE HAVE CONSISTENTLY HELD THAT TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS WHICH HAVE BEEN FIXED UNDER THE APPLICABLE STATUTES AND REGULATIONS. SEE ERWIN E. DROSSEL, B-203009, MAY 17, 1982. THEREFORE, THE RETROACTIVE MODIFICATION OF MR. VESSEY'S TRAVEL ORDER HAS NO LEGAL EFFECT.

MR. VESSEY FURTHER ARGUES THAT HE SHOULD HAVE BEEN REIMBURSED FOR HIS TRAVEL TO KANSAS CITY SINCE HE HAD SUBLET HIS APARTMENT IN PORTLAND. HOWEVER, AS INDICATED PREVIOUSLY, THE GOVERNMENT CANNOT PAY EXPENSES FOR WHICH NO STATUTORY OR REGULATORY AUTHORITY EXISTS, EVEN THOUGH A PARTICULAR CASE MAY INVOLVE UNUSUAL CIRCUMSTANCES. SEE GENERALLY WILLIAM D. FALLIN, B-210468, APRIL 12, 1983.

FURTHERMORE, WE NOTE THAT THE LOCATION AT WHICH AN EMPLOYEE CHOOSES TO SPEND HIS NONWORKDAYS WHILE IN A TRAVEL STATUS IS OF NO PARTICULAR CONCERN TO THE GOVERNMENT, INSOFAR AS IT DOES NOT INTERFERE WITH THE PERFORMANCE OF ASSIGNED DUTIES. THEREFORE, AN EMPLOYEE'S ENTITLEMENT TO PER DIEM OR ACTUAL SUBSISTENCE EXPENSES AS AUTHORIZED CONTINUES, UNLESS OTHERWISE RESTRICTED UNDER FTR PARAGRAPHS 1-7.5C AND 1-8.4F. SEE THOMAS H. HALL, B-209100, MAY 9, 1983. IN THIS CASE, IT APPEARS THAT MR. VESSEY STAYED WITH RELATIVES WHILE IN KANSAS CITY, AND HE HAS NOT CLAIMED REIMBURSEMENT FOR ANY SUBSISTENCE EXPENSES.

FOR THE REASONS STATED ABOVE, MR. VESSEY'S CLAIM FOR TRANSPORTATION EXPENSES MAY NOT BE ALLOWED.