B-173103, NOV 16, 1971

B-173103, NOV 16, 1971

CIVILIAN EMPLOYEES - TRAVEL TO DUTY LOCATIONS - MILEAGE AND TOLL CHARGES DECISION SUSTAINING THE DENIAL BY CLAIMS DIVISION OF THE CLAIMS OF WINFRED DUNAWAY, JR., ALBERT THOMPSON, HARRY S. LIVELY AND BOOKER T. THOMAS FOR SERVICES AND MILEAGE AS WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE ARMY. MR. DUNAWAY'S CLAIM FOR OVERTIME COMPENSATION FOR TIME SPENT ABOARD A GOVERNMENT VESSEL IN TRANSIT TO HIS DUTY LOCATION IS DISALLOWED ON THE BASIS OF THE RULING IN AHEARN V UNITED STATES, 142 CT. CL. 309 (1958). FURTHER, THE DETERMINATION THAT SUCH TIME SHOULD BE SCHEDULED INTO THE REGULAR WORKING HOURS IS FOR THE ADMINISTRATIVE AGENCY, AND GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY. THE CLAIMS FOR ADDITIONAL MILEAGE AND PAYMENT FOR BRIDGE TOLLS ARE DISALLOWED BECAUSE THEY ARE NOT AUTHORIZED UNDER SECTIONS C6153 AND C8200, VOLUME 2, JTR, RESPECTIVELY. MR. THOMPSON'S CLAIM FOR OVERTIME COMPENSATION IS DISALLOWED IN ACCORDANCE WITH THE RULING IN BIGGS ET AL V UNITED STATES, 152 CT. CL. 545 (1961), AND BECAUSE IT DOES NOT MEET THE REQUIREMENTS OF 5 U.S.C. 5544(A). THE CLAIMS OF MESSRS. THOMAS AND LIVELY ARE DISALLOWED BECAUSE REIMBURSEMENT FOR MILEAGE FOR THE USE OF A PRIVATELY OWNED VEHICLE IS ALLOWED ONLY IF THE USE OF THE VEHICLE IS AUTHORIZED OR APPROVED AS ADVANTAGEOUS TO THE GOVERNMENT. SINCE SUCH A DETERMINATION WAS NOT MADE HEREIN, THERE IS NO BASIS FOR ALLOWING THE CLAIMS.

TO MR. JOHN M. FEARS:

WE REFER TO YOUR LETTER DATED MAY 3, 1971, REQUESTING ON BEHALF OF FOUR MEMBERS OF YOUR UNION, MESSRS. WINFRED DUNAWAY, JR., ALBERT THOMPSON, HARRY S. LIVELY, AND BOOKER T. THOMAS, THAT THE DENIAL OF THE CLAIMS OF THOSE INDIVIDUALS FOR SERVICES AND MILEAGE AS WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE ARMY BE GIVEN RECONSIDERATION. THEIR CLAIMS WERE DENIED BY OUR CLAIMS DIVISION SETTLEMENT CERTIFICATES DATED MARCH 3, 1971.

I

MR. DUNAWAY WAS STATIONED ABOARD DERRICK BOAT NO. 37 WHICH WE UNDERSTAND MOVES WITHIN A CERTAIN GEOGRAPHIC AREA. HE HAS INDICATED IN HIS LETTER OF NOVEMBER 13, 1969, ADDRESSED TO YOU THAT FROM 15 TO 45 MINUTES PRIOR TO THE TIME HE IS SCHEDULED TO REPORT FOR DUTY ABOARD THE DERRICK BOAT HE IS REQUIRED TO REPORT TO A CERTAIN SHORE PICK-UP POINT TO BOARD A GOVERNMENT VESSEL IN ORDER TO BE TRANSPORTED TO HIS DUTY STATION. AFTER THE END OF HIS REGULAR DUTY HOURS, HE AGAIN BOARDS THE GOVERNMENT VESSEL TO BE RETURNED TO SHORE. THE FIRST HALF OF MR. DUNAWAY'S CLAIM IS FOR OVERTIME COMPENSATION FOR THE TIME SPENT ABOARD THE GOVERNMENT VESSEL IN TRANSIT BOTH DIRECTIONS BETWEEN THE PICK-UP POINT AND DERRICK BOAT NO. 37. ASSERTS ALSO THAT THE TIME SPENT IN TRANSIT SHOULD BE INCLUDED IN HIS REGULAR DUTY HOURS.

YOU REFER TO FEDERAL PERSONNEL MANUAL LETTER NO. 550-52 IMPLEMENTING THE OVERTIME COMPENSATION PROVISIONS OF 5 U.S.C. 5542. THE PERTINENT PART OF THAT STATUTE IS SUBSTANTIALLY SIMILAR TO THE FOLLOWING QUOTED OVERTIME PROVISION OF 5 U.S.C. 5544(A) WHICH IS APPLICABLE TO WAGE BOARD EMPLOYEES:

" *** TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE SUBJECT TO THIS SUBSECTION IS NOT HOURS OF WORK UNLESS 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) ADMINISTRATIVELY."

BY DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL CIRCULAR NO. 11, 1967, THE RULES APPLICABLE TO CIVILIAN PERSONNEL SUBJECT TO 5 U.S.C. 5542 WERE EXTENDED TO EQUALIZE TREATMENT OF WAGE BOARD EMPLOYEES SUBJECT TO THE PROVISIONS OF 5 U.S.C. 5544.

YOU ASSERT THAT THE TRAVEL HERE INVOLVED RESULTED FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, THUS COMING WITHIN THE CRITERION SET FORTH AT SUBSECTION 5544(A), QUOTED ABOVE. IN ADDITION YOU ASSERT THAT THE TRAVEL INVOLVED SHOULD BE DEEMED EMPLOYMENT BECAUSE IT WAS CARRIED OUT UNDER UNUSUAL CONDITIONS MAKING IT INSEPARABLE FROM WORK.

WITH REGARD TO YOUR ASSERTION OF ADMINISTRATIVE UNCONTROLLABILITY, WE POINT OUT THAT THAT CRITERION AS SET FORTH IN THE ABOVE-QUOTED STATUTE IS APPLICABLE ONLY TO "TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE." IT DOES NOT APPLY TO THE SITUATION OF AN EMPLOYEE, LIKE MR. DUNAWAY, WHOSE TRAVEL IS BETWEEN HIS RESIDENCE AND HIS PERMANENT DUTY STATION.

SIMILAR TO THE PROVISIONS OF 5 U.S.C. 5542, THOSE PROVISIONS OF 5 U.S.C. 5544 WHICH ARE LIMITED TO TRAVEL AWAY FROM THE OFFICIAL DUTY STATION, ARE NOT CONTROLLING WHERE THE TRAVEL IS AN INHERENT PART OF AND INSEPARABLE FROM THE WORK ITSELF. FEDERAL PERSONNEL MANUAL LETTER NO. 550-52 PROVIDES AT PAGE 8 AS FOLLOWS:

"THE ABOVE CONDITIONS DO NOT APPLY TO WORK SITUATIONS INVOLVING TRAVEL WHICH IS AN INHERENT PART OF, AND INSEPARABLE FROM, THE WORK ITSELF. SUCH CASES WHEN AN AGENCY DETERMINES THAT THE TRAVEL REPRESENTS AN ADDITIONAL INCIDENTAL DUTY DIRECTLY CONNECTED WITH THE PERFORMANCE OF A GIVEN JOB, AND IS THEREFORE CONSIDERED TO BE AN ASSIGNED DUTY, THE TIME SPENT IN TRAVEL IS WORK TIME AND WILL BE COMPENSABLE AT REGULAR OR OVERTIME RATES, AS APPROPRIATE. (SEE COMPTROLLER GENERAL DECISIONS B- 146389, FEBRUARY 1, 1966 AND B-163042, MAY 22, 1968.)"

YOU ASSERT THAT THE FACT SITUATIONS IN THE DECISIONS CITED IN THE ABOVE QUOTATION ARE SUBSTANTIALLY SIMILAR TO THE TRAVEL SITUATION OF MR. DUNAWAY. THOSE DECISIONS DEALT WITH THE TRAVEL OF PERSONS WHO ARE REQUIRED TO FIRST REPORT TO A PARTICULAR POINT TO RECEIVE ASSIGNMENTS, INSTRUCTIONS, AND TO PICK UP TOOLS BEFORE TRAVELING TO THEIR DUTY ASSIGNMENTS AT ONE OR MORE FACILITIES. IT WAS CONCLUDED IN THOSE SITUATIONS THAT THE NATURE OF THE TRAVEL WAS INSEPARABLE FROM THE WORK OF THE EMPLOYEES. UNLIKE THOSE SITUATIONS, THERE IS NO INDICATION IN THE RECORD THAT THE NECESSITY FOR MR. DUNAWAY'S REPORTING AT A SHORE PICK-UP POINT WAS FOR ANY PURPOSE OTHER THAN TO FACILITATE HIS TRANSPORTATION TO HIS PERMANENT DUTY STATION OR THAT ANY DUTIES WERE PERFORMED BY HIM PRIOR TO REPORTING ABOARD DERRICK BOAT NO. 37.

IN AHEARN V UNITED STATES, 142 CT. CL. 309 (1958), THE COURT OF CLAIMS WAS CONFRONTED WITH SUBSTANTIALLY THE SAME FACT SITUATION AND THE PRECISE ISSUE HERE PRESENTED. IT WAS ARGUED BY PLAINTIFFS IN THAT CASE THAT THE TIME SPENT IN TRAVELING BY BOAT TO AND FROM THE ISLAND FIRE STATION, TO WHICH THEY WERE ASSIGNED, BEFORE REPORTING TO WORK AND IN RETURNING TO SHORE AT THE END OF THEIR REGULAR TOURS OF DUTY SHOULD BE COMPENSATED AT OVERTIME RATES. AS IN MR. DUNAWAY'S SITUATION, ALTHOUGH THE TRAVEL BY GOVERNMENT VESSEL WAS NOT REQUIRED, AS A PRACTICAL MATTER IT WAS THE ONLY MEANS FOR THEM TO TRAVEL TO AND FROM THEIR ISLAND DUTY STATION. THE COURT THERE HELD THAT THE TIME SPENT IN TRAVEL WAS NO MORE COMPENSABLE THAN THE TIME SPENT BY ANY EMPLOYEE IN GOING FROM HIS RESIDENCE TO HIS DUTY STATION AND THAT INASMUCH AS NO WORK WAS PERFORMED BY PLAINTIFFS WHILE IN TRANSIT, THERE WAS NO BASIS FOR COMPENSATION AT OVERTIME RATES.

THE COURT OF CLAIMS, MORE RECENTLY, IN AYRES V UNITED STATES, 186 CT. CL. 350 (1968), REACHED A DECISION IN LINE WITH AHEARN IN A SUBSTANTIALLY SIMILAR FACT SITUATION. THERE, PLAINTIFFS, WHO WERE EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ENGAGED IN PLANT OPERATIONS AND MAINTENANCE ON AN ISLAND, BROUGHT SUIT SEEKING IN PART TO RECOVER OVERTIME COMPENSATION FOR THE TIME SPENT ON A GOVERNMENT BOAT PRIOR TO AND AFTER THEIR REGULAR DUTY HOURS IN TRANSIT BETWEEN THE SHORE DEPARTURE AND PICK-UP POINTS AND THEIR ISLAND DUTY STATION. THE COURT, FINDING THAT THEY PERFORMED NO WORK WHILE IN TRANSIT AND FURTHER THAT THE TRAVEL WAS NOT ARDUOUS, FOUND THEIR TRAVEL COMPARABLE TO THE NONCOMPENSABLE TRAVEL IN AHEARN.

IN VIEW OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT MR. DUNAWAY'S TRAVEL TO AND FROM DERRICK BOAT NO. 37 IS ANY DIFFERENT FROM THE ORDINARY NONCOMPENSABLE TRAVEL PERFORMED BY ANY EMPLOYEE FROM HIS RESIDENCE TO HIS PERMANENT DUTY STATION.

WITH REGARD TO MR. DUNAWAY'S SUGGESTION THAT HIS TRAVEL SHOULD BE SCHEDULED WITHIN HIS REGULAR TOUR OF DUTY, WE POINT OUT THAT PURSUANT TO PARAGRAPH S1-5 OF BOOK 610 OF THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS, THE STANDARDS SET FORTH IN THE PROVISIONS OF 5 U.S.C. 6101, IN REGARD TO ESTABLISHING TOURS OF DUTY FOR CERTAIN EMPLOYEES, ARE MADE APPLICABLE TO WAGE BOARD EMPLOYEES. IN OUR DECISION B -157036, JULY 22, 1965, COPY HEREWITH, WE HELD UNDER THE PREDECESSOR SECTION TO 5 U.S.C. 6101 THAT ALTHOUGH THE TRAVEL, WHICH IN THAT CASE WAS OF A TYPE COMPARABLE TO MR. DUNAWAY'S, COULD NOT FORM THE BASIS FOR OVERTIME COMPENSATION, IT MIGHT, IN ACCORDANCE WITH ADMINISTRATIVE DISCRETION, BE INCLUDED WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY. THERE STATED:

"UNDER THE PROVISIONS OF 5 U.S.C. 944(2) WHICH RELATE TO THE ESTABLISHMENT BY THE HEADS OF THE SEVERAL DEPARTMENTS OF THE 40-HOUR BASIC WORKWEEK AND TOURS OF DUTY, HOWEVER, OUR VIEW IS THAT, IN THE EXERCISE OF YOUR DISCRETION AS PROVIDED IN THAT STATUTE, YOU COULD ESTABLISH A 40-HOUR TOUR OF DUTY FOR THE CONSTRUCTION INSPECTORS TO BEGIN AT THE TIME THEY REPORT TO HEADQUARTERS TO PICK UP THE GOVERNMENT CARS TO PROCEED TO THE WORK SITE. IF THIS BE DONE THEN THEY WOULD BE ENTITLED TO OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 PER WEEK COUNTING FROM THE TIME OF REPORTING TO HEADQUARTERS EACH MORNING. HOWEVER, WE DO NOT BELIEVE THAT THE AUTHORITY UNDER 5 U.S.C. 944(2), WHICH IS CONCERNED ONLY WITH THE FIXING OF A DAILY TOUR OF DUTY WITHIN A 40-HOUR WORKWEEK, WOULD EXTEND TO SCHEDULING TRAVEL TIME AT THE END OF THE DAY WHICH WOULD BE TANTAMOUNT TO OVERTIME WHEN THE WORKWEEK IS CONSIDERED AS A WHOLE."

WITH REGARD TO THE ADMINISTRATIVE DETERMINATION TO EXCLUDE TRAVEL FROM THE REGULAR TOUR OF DUTY, WE NOTE THAT THE ARMY ENGINEER DISTRICT, PHILADELPHIA, HAS INDICATED THAT THE AVERAGE LAUNCH TRIP IS OF ONLY A 15 MINUTE DURATION AND THAT THE WORK LOCATIONS ARE AN AVERAGE OF 24 MILES FROM THE RESIDENCES OF THE DERRICK BOAT CREW MEMBERS. IN VIEW OF THESE FINDINGS, IT HAS APPARENTLY BEEN CONCLUDED THAT THE TOTAL TRAVEL TIME INVOLVED IS NO MORE ONEROUS THAN THAT WHICH IS NORMALLY EXPECTED OF ANY EMPLOYEE WHILE COMMUTING TO WORK. THIS OFFICE IS THEREFORE NOT IN A POSITION TO SUBSTITUTE ITS JUDGMENT OR DETERMINATION FOR THAT OF THE AGENCY. FOR THE FOREGOING REASONS THE DENIAL OF MR. DUNAWAY'S CLAIM FOR OVERTIME COMPENSATION BY OUR CLAIMS DIVISION IS AFFIRMED.

THE SECOND HALF OF MR. DUNAWAY'S CLAIM IS FOR ADDITIONAL MILEAGE AND FOR BRIDGE TOLLS IN CONNECTION WITH HIS TEMPORARY DUTY ASSIGNMENTS BETWEEN JULY 1969 AND AUGUST 1969 TO CRYSTAL BEACH AND CROWN POINT, MARYLAND. FOR THE PERIOD INVOLVED, MR. DUNAWAY WAS AUTHORIZED AND RECEIVED REIMBURSEMENT FOR MILEAGE IN EXCESS OF 30 MILES IN ONE DIRECTION. HIS PRESENT CLAIM IS FOR REIMBURSEMENT OF THE 30-MILE DIFFERENTIAL FOR WHICH REIMBURSEMENT WAS NOT AUTHORIZED.

SECTION C 6153, VOLUME 2, JOINT TRAVEL REGULATIONS, AS IN EFFECT DURING THE PERIOD OF MR. DUNAWAY'S DUTY HERE INVOLVED PROVIDED AS FOLLOWS:

" *** REIMBURSEMENT FOR MILEAGE MAY BE LIMITED TO AN AMOUNT REPRESENTING THE DIFFERENCE BETWEEN REPORTING TO THE EMPLOYEE'S PERMANENT DUTY STATION AND THE TEMPORARY DUTY STATION."

WE INDICATED IN 36 COMP. GEN. 795 (1957) THAT ALTHOUGH IT WAS WITHIN ADMINISTRATIVE DISCRETION TO ALLOW AN EMPLOYEE, AUTHORIZED TO USE A PRIVATELY OWNED VEHICLE FOR OFFICIAL BUSINESS, 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 HEADQUARTERS, THE MILEAGE IN APPROPRIATE SITUATIONS SHOULD BE RESTRICTED BY WAY OF A REDUCED RATE OR DISTANCE. LINE WITH THAT DECISION, THIS OFFICE HAS HELD THAT IT IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION TO LIMIT REIMBURSEMENT FOR TRAVEL TO THE AMOUNT BY WHICH SUCH TRAVEL EXCEEDS THE DISTANCE TO AND FROM THE EMPLOYEE'S PERMANENT DUTY STATION. SEE COPIES OF OUR DECISIONS B-170444, OCTOBER 29, 1970, AND B-164891, JUNE 25, 1968, ENCLOSED.

WE UNDERSTAND FROM THE ARMY ENGINEER DISTRICT, PHILADELPHIA, THAT THE AVERAGE DISTANCE WHICH CREW MEMBERS MUST TRAVEL TO THE VARIOUS WORK SITES WITHIN THE AREA IN WHICH THE DERRICK BOAT ORDINARILY FUNCTIONS IS 24 MILES. IT IS ON THIS BASIS THAT THE DETERMINATION TO AUTHORIZE REIMBURSEMENT FOR TRAVEL ONLY IN EXCESS OF 30 MILES ONE WAY WAS MADE. THIS APPEARS TO BE A REASONABLE APPLICATION OF THE LANGUAGE OF C 6153, QUOTED ABOVE, TO THE SITUATION OF EMPLOYEES WHO ARE ASSIGNED TO PERMANENT DUTY ABOARD A BOAT OR VESSEL WHICH, IN THE COURSE OF ITS REGULAR SCHEDULE, MOVES WITHIN A GENERAL AREA. WE THEREFORE HAVE NO BASIS FOR OBJECTION TO NOR WOULD WE SUBSTITUTE OUR OPINION OR DETERMINATION FOR THAT OF THE AGENCY.

WE NOTE, HOWEVER, THAT SECTION C 6153 OF VOLUME 2, JOINT TRAVEL REGULATIONS, WAS AMENDED SEPTEMBER 1, 1970, TO REQUIRE PAYMENT OF MILEAGE UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED WHERE THE USE OF AN AUTOMOBILE IS AUTHORIZED OR APPROVED AS ADVANTAGEOUS TO THE GOVERNMENT. THAT CHANGE, HOWEVER, IS PROSPECTIVE IN APPLICATION AND HAS NO EFFECT ON THE CLAIM HERE UNDER CONSIDERATION. FOR THE FOREGOING REASONS, THE DETERMINATION OF OUR CLAIMS DIVISION WITH REGARD TO MILEAGE IS AFFIRMED.

WITH RESPECT TO MR. DUNAWAY'S CLAIM FOR REIMBURSEMENT OF TOLLS, WE REFER YOU TO SECTION C 8200, VOLUME 2, JOINT TRAVEL REGULATIONS. AS IN EFFECT AT THE TIME OF THE TRAVEL HERE INVOLVED, THAT SECTION PROVIDED AND CONTINUES TO SO PROVIDE IN PART THAT AN ALLOWANCE FOR TOLLS IS NOT SEPARATELY REIMBURSABLE EXCEPT WHEN A DETERMINATION OF ADVANTAGE TO THE GOVERNMENT IS MADE. INASMUCH AS THERE APPEARS TO HAVE BEEN NO SUCH DETERMINATION, NOR THE NECESSARY AUTHORIZATION, MR. DUNAWAY'S CLAIM FOR REIMBURSEMENT OF SUCH AMOUNTS IS DENIED.

WE UNDERSTAND THAT THE AGENCY'S DETERMINATION NOT TO AUTHORIZE TOLLS IN MR. DUNAWAY'S CASE WAS MADE UPON A BASIS SIMILAR TO THEIR DETERMINATION TO RESTRICT REIMBURSEMENT FOR MILEAGE TO THAT IN EXCESS OF 30 MILES IN ONE DIRECTION; AND THAT SINCE SUCH COSTS WOULD HAVE BEEN INCURRED BY THE EMPLOYEE IN TRAVELING FROM HIS RESIDENCE TO THE VARIOUS WORK SITES WITHIN THE USUAL SCOPE OF THE DERRICK BOAT'S OPERATIONS, SUCH COSTS WERE NOT ADDITIONAL COSTS ATTRIBUTABLE TO A TEMPORARY DUTY ASSIGNMENT. THIS DETERMINATION IS IN LINE WITH THE LANGUAGE OF C 8200 WHICH PROVIDES THAT "TRAVEL ORDERS MAY INCLUDE AN ADMINISTRATIVE RESTRICTION PRECLUDING OR LIMITING SUCH AMOUNTS."

MR. ALBERT THOMPSON'S CLAIM FOR OVERTIME COMPENSATION FOR THE PERIOD BETWEEN APRIL 14, 1969, AND NOVEMBER 7, 1969, IS BASED ON THE TIME SPENT BY HIM IN TRAVEL BETWEEN PEDRICKTOWN, PENNSYLVANIA, AND VARIOUS DISPOSAL AREAS AT WHICH HE AND OTHER EMPLOYEES ASSIGNED TO THE CONSTRUCTION AND LABOR FORCE PROVIDE OPERATIONS SUPPORT FOR HOPPER DREDGE OPERATIONS. HIS REGULAR DUTY HOURS ARE FROM 8 A.M. TO 4:30 P.M. AND, AS IS PROVIDED IN THE COLLECTIVE BARGAINING AGREEMENT ENTERED INTO BETWEEN THE UNITED STATES ARMY ENGINEER DISTRICT, PHILADELPHIA, AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 902, PEDRICKTOWN HAS BEEN DESIGNATED HIS PERMANENT DUTY STATION. FOR THE PERIOD INVOLVED, MR. THOMPSON HAS INDICATED THAT HE WAS "REQUIRED" TO REPORT TO PEDRICKTOWN AT 7:30 A.M., ONE-HALF HOUR BEFORE THE BEGINNING OF HIS REGULAR TOUR OF DUTY TO BE READY "TO LEAVE TO BE ON THE JOB SITE BY 8:00 A.M." WE UNDERSTAND FROM THE ARMY ENGINEER DISTRICT, PHILADELPHIA, THAT MANY OF THE EMPLOYEES WHO, LIKE MR. THOMPSON, ARE ASSIGNED TO THE CONSTRUCTION AND LABOR FORCE, DRIVE THEIR CARS TO PEDRICKTOWN WHERE THEY MAY PARK THEM FOR THE DAY EITHER TO MEET CARPOOLS OR TO AVAIL THEMSELVES, WHEN IT IS PROVIDED, OF TRANSPORTATION PROVIDED BY THE GOVERNMENT TO TRAVEL TO THE VARIOUS WORK SITES TO WHICH THEY ARE ASSIGNED. THEY ADVISE IN ADDITION THAT THERE IS NO REQUIREMENT FOR THE EMPLOYEES TO FIRST REPORT TO PEDRICKTOWN AND THAT IN FACT THEY ARE REQUIRED ONLY TO REPORT TO THE VARIOUS WORK SITES AT THE COMMENCEMENT OF THEIR DUTY HOURS IRRESPECTIVE OF HOW THEY MIGHT CHOOSE TO TRAVEL THERE. THOSE WHO REPORT TO PEDRICKTOWN DO SO ONLY TO FACILITATE THEIR TRANSPORTATION TO THE VARIOUS WORK SITES IN A MANNER WHICH IS MOST CONVENIENT FOR THEM.

YOUR LETTER EXPRESSES DISSATISFACTION WITH THE FACT THAT EMPLOYEES ARE NOT REQUIRED TO REPORT TO PEDRICKTOWN. YOU STATE:

" *** IN REVIEWING THE ANSWERS IN THE DISALLOWED CLAIMS BY THE GENERAL ACCOUNTING OFFICE, DIVISION OF CLAIMS, THE LOCAL COULD NOT UNDERSTAND WHY THE CORPS OF ENGINEERS ADMINISTRATIVE OFFICE WOULD AGREE TO AND INCLUDE IN A COLLECTIVE BARGAINING AGREEMENT A PERMANENT DUTY STATION FOR THESE EMPLOYEES, AND THEN TELL THE GENERAL ACCOUNTING OFFICE THAT THERE IS NO NEED FOR MEN ASSIGNED TO OTHER AREAS TO REPORT TO PEDRICKTOWN DAILY TO ASSEMBLE OR PICK UP TOOLS ETC."

IT APPEARS TO THIS OFFICE THAT THE ARMY ENGINEER DISTRICT DOES IN FACT FULLY RECOGNIZE PEDRICKTOWN AS THE OFFICIAL DUTY STATION OF THE EMPLOYEES COVERED BY THE AGREEMENT, INCLUDING MESSRS. THOMPSON, THOMAS AND LIVELY. WE KNOW OF NO REQUIREMENT, HOWEVER, THAT EMPLOYEES FIRST REPORT TO THEIR DESIGNATED PERMANENT DUTY STATION BEFORE DEPARTING TO THEIR ASSIGNMENT AT VARIOUS WORK SITES.

WITH REGARD TO MR. THOMPSON'S CLAIM FOR OVERTIME COMPENSATION, WE REFER YOU TO THE HOLDING IN BIGGS ET AL. V UNITED STATES, 152 CT. CL. 545 (1961) WHERE THE COURT OF CLAIMS CONSIDERED THE CLAIMS OF EMPLOYEES WHO, SIMILARLY TO MR. THOMPSON, WERE DETAILED TO WORK AT A POINT SOME DISTANCE FROM THEIR PERMANENT DUTY STATION INVOLVING AN HOUR TRAVEL TIME IN EACH DIRECTION. TRAVEL TIME TO THE WORKSITE WAS ADMINISTRATIVELY INCLUDED WITHIN THE REGULAR DUTY HOURS OF THE EMPLOYEES. RETURN TRAVEL, HOWEVER, WAS PERFORMED AFTER DUTY HOURS ON THE EMPLOYEE'S OWN TIME. IN BIGGS, AS HERE, EMPLOYEES COULD USE EITHER PRIVATE TRANSPORTATION OR AVAIL THEMSELVES OF GOVERNMENT TRANSPORTATION TO THE WORK SITES, THE ONLY REQUIREMENT BEING THAT THEY ARRIVE AT THE WORKSITE BY THE APPOINTED TIME. ON THE BASIS OF THOSE FACTS, THE EMPLOYEES SOUGHT TO RECOVER OVERTIME COMPENSATION FOR THEIR RETURN TRAVEL TIME.

IN ACCORDANCE WITH THEIR DECISION IN AHEARN, THE FACTS AND HOLDING OF WHICH ARE RECITED IN OUR DISCUSSION OF MR. DUNAWAY'S CLAIM, THE COURT OF CLAIMS FOUND THE PLAINTIFFS NOT ENTITLED TO RECOVER, HOLDING THAT THE TRAVEL DID NOT INVOLVE THE PERFORMANCE OF WORK WHILE EN ROUTE HOME AND THAT IT WAS NEITHER "ARDUOUS" NOR PERFORMED UNDER "EMERGENT" CONDITIONS SO AS TO MEET THE CRITERIA OF THE PROVISIONS OF LAW SIMILAR TO THOSE HERE UNDER CONSIDERATION.

IN ACCORDANCE WITH THE HOLDING OF THE COURT OF CLAIMS IN BIGGS AND WITH THE CRITERIA SET FORTH IN THE HOLDING IN AHEARN, IT CLEARLY APPEARS THAT THE TRAVEL PERFORMED BY MR. THOMPSON WAS NOT SO INSEPARABLE FROM HIS WORK AS TO ITSELF CONSTITUTE WORK.

NEITHER DOES THE TRAVEL COMPLY WITH THE CRITERIA SET FORTH IN 5 U.S.C. 5544(A) FOR THE DETERMINATION OF WHEN TRAVEL WILL BE CONSIDERED AS "HOURS OF EMPLOYMENT" FOR THE PURPOSE OF ENTITLEMENT TO OVERTIME COMPENSATION. THOSE CRITERIA ARE AS FOLLOWS:

" *** 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."

THE FIRST THREE CRITERIA ARE CLEARLY INAPPLICABLE TO THE TRAVEL SITUATION OF MR. THOMPSON. YOU ASSERT THAT THE CIRCUMSTANCES OF MR. THOMPSON'S TRAVEL DO, HOWEVER, MEET THE FOURTH CRITERION; THAT THE TRAVEL RESULTED FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. AS THE BEST EVIDENCE OF THIS YOU CITE THE "CONTINUED EVIDENT INABILITY OF THE AGENCY TO SCHEDULE THE TRAVEL IN QUESTION WITHIN THE WORK TOUR, TOGETHER WITH THE ABSENCE OF ANY AFFIRMATIVE SHOWING OF ADMINISTRATIVE CONTROLLABILITY."

FEDERAL PERSONNEL MANUAL LETTER NO. 550-52, INTERPRETING 5 U.S.C. 5542, TO WHICH YOUR REFER, PROVIDES IN PART AS FOLLOWS:

"TRAVEL WHICH RESULTS FROM AN EVENT WHICH CANNOT BE SCHEDULED OR CONTROLLED ADMINISTRATIELY IS ALSO A NEW CONDITION UNDER WHICH TRAVEL IS CONSIDERED HOURS OF WORK. THE PHRASE 'COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY' REFERS TO THE ABILITY OF THE EXECUTIVE AGENCY *** TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. ***

"ON THE OTHER HAND, TRAVEL WILL BE CONSIDERED HOURS OF WORK WHEN IT RESULTS FROM UNFORESEEN CIRCUMSTANCES (E.G., A BREAKDOWN OF EQUIPMENT), OR FROM AN EVENT WHICH IS SCHEDULED OR CONTROLLED BY SOMEONE OR SOME ORGANIZATION OUTSIDE OF GOVERNMENT. *** "

NO BASIS IS PERCEIVED TO APPLY A DIFFERENT INTERPRETATION TO THE PROVISIONS OF 5 U.S.C. 5544.

THE FACT THAT THE ARMY ENGINEER DISTRICT, PHILADELPHIA, HAS NOT SEEN PROPER TO SCHEDULE MR. THOMPSON'S TRAVEL WITHIN HIS REGULAR DUTY HOURS IS UNRELATED TO THE QUESTION OF WHETHER AN EVENT IS SUSCEPTIBLE OF ADMINISTRATIVE SCHEDULING OR CONTROL. AS WE INDICATED IN OUR DISCUSSION OF MR. DUNAWAY'S CASE IT IS A MATTER OF ADMINISTRATIVE DISCRETION WHETHER TO SCHEDULE DUTY HOURS TO INCLUDE THE TIME OF TRAVEL TO THE WORKSITE. ACCORDINGLY, MR. THOMPSON'S TRAVEL DOES NOT MEET THE CRITERION SET FORTH IN 5 U.S.C. 5544(A)(IV), SUPRA, AND THE DETERMINATION OF OUR CLAIMS DIVISION IS THEREFORE AFFIRMED.

III

THE CLAIM OF MR. BOOKER T. THOMAS FOR EXPENSES INCURRED IN COMMUTING TO WORK SITES FOR THE PERIOD FROM APRIL 1969 TO FEBRUARY 1970, AND THAT OF MR. HARRY S. LIVELY FOR EXPENSES INCURRED IN COMMUTING TO WORK SITES DURING THE PERIOD FROM APRIL 1969 TO OCTOBER 1969 ARE SUBSTANTIALLY SIMILAR. PEDRICKTOWN, PENNSYLVANIA, IS THE DESIGNATED PERMANENT DUTY STATION OF EACH AND EACH HAS INDICATED THAT FOR THE PERIODS INVOLVED HE WAS REQUIRED TO TRAVEL SOME 33 MILES DISTANCE AND TO PAY BRIDGE TOLLS IN ORDER TO REPORT TO THE ASSIGNED WORK SITES. ON THIS BASIS EACH HAS SUBMITTED A CLAIM FOR REIMBURSEMENT OF AN ALLOWANCE FOR MILEAGE AND FOR BRIDGE TOLLS.

SECTION 3.5B OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, EFFECTIVE DURING THE PERIOD HERE INVOLVED, PROVIDED FOR REIMBURSEMENT ON A MILEAGE BASIS ONLY WHEN USE BY THE EMPLOYEE OF HIS PRIVATELY OWNED VEHICLE IS AUTHORIZED OR APPROVED AS ADVANTAGEOUS TO THE GOVERNMENT. THE ARMY ENGINEER DISTRICT, PHILADELPHIA, HAS ADVISED THAT SUCH AUTHORIZATION WAS WITHHELD ON THE BASIS OF THEIR DETERMINATION THAT THE WORK SITES TO WHICH THE EMPLOYEES WERE ASSIGNED FOR THESE PERIODS ARE WITHIN A NORMAL COMMUTING DISTANCE, AND THAT IT THEREFORE IS NOT UNREASONABLE TO EXPECT EMPLOYEES TO TRAVEL TO THOSE SITES AT THEIR OWN EXPENSE. THEIR CONCLUSION IS BASED UPON FINDINGS FOR WHICH THEY HAVE PRESENTED DOCUMENTATION. THESE FINDINGS ARE (1) THAT THE DISPOSAL AREAS WHERE WORK IS NORMALLY PERFORMED ARE LOCATED WITHIN A 13.7-MILE RADIUS AND THAT IT IS POSSIBLE FOR AN INDIVIDUAL ASSIGNED TO THE CONSTRUCTION AND LABOR FORCE TO SO LOCATE HIS RESIDENCE THAT HE NEED COMMUTE NO MORE THAN 14 MILES TO EACH WORKSITE, AND (2) THAT, BASED UPON STUDIES FOR THE PERIOD FROM APRIL 13, 1968, THROUGH APRIL 12, 1970, EMPLOYEES OF THE CONSTRUCTION AND LABOR FORCE COMMUTE ONLY AN AVERAGE OF 16 MILES BETWEEN THEIR RESIDENCES AND THE VARIOUS WORK SITES. IN ADDITION, THEY HAVE ADVISED THAT WHEN INDIVIDUALS ARE REQUIRED TO WORK BEYOND THE PRESENTLY ESTABLISHED DISPOSAL AREA THEY ARE GIVEN TRAVEL EXPENSES OR PLACED ON PER DIEM. INASMUCH AS IT APPEARS THAT THERE ARE FACTS PRESENT WHICH IN LINE WITH THE FACTORS TO BE TAKEN INTO CONSIDERATION IN ARRIVING AT THE DETERMINATION OF ADVANTAGE TO THE GOVERNMENT AS SET FORTH IN THE JOINT TRAVEL REGULATIONS, VOLUME 2, FORM A BASIS FOR A NEGATIVE DETERMINATION, OUR OFFICE WOULD NOT BE IN A POSITION TO SUBSTITUTE ITS JUDGMENT OR DETERMINATION FOR THAT OF THE AGENCY.

AS WE INDICATED IN OUR DISCUSSION OF MR. DUNAWAY'S CLAIM FOR REIMBURSEMENT OF TOLLS, IN THE ABSENCE OF A DETERMINATION OF ADVANTAGE TO THE GOVERNMENT AND THE NECESSARY AUTHORIZATION, THERE IS NO BASIS FOR REIMBURSEMENT OF SUCH EXPENSES. FOR THE FOREGOING REASONS, THE DENIALS BY OUR CLAIMS DIVISION OF THE CLAIMS OF MESSRS. THOMAS AND LIVELY ARE SUSTAINED.