B-199074.OM, FEB 23, 1981

B-199074.OM: Feb 23, 1981

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JUDITH CZARSTY: THIS IS IN RESPONSE TO YOUR REQUEST FOR AN OPINION ON WHETHER A CLAIM BY MS. WAS DRIVING DOWN THE RAMP INTO THE UNDERGROUND PARKING LOT ON THE H STREET SIDE OF THE GAO BUILDING WHEN HER CAR STARTED SKIDDING TOWARD THE CONCRETE EMBANKMENT ON THE RIGHT SIDE OF THE RAMP. THE RESPONSIBILITY FOR SNOW REMOVAL AT THE GAO BUILDING WAS THAT OF A CONTRACTOR. CONTRACTORS ARE SPECIFICALLY EXCLUDED FROM THE DEFINITION OF "AGENCY" IN THE FEDERAL TORT CLAIMS ACT (28 U.S.C. CLARK'S EFFORTS TO OBTAIN COMPENSATION FROM THE SNOW REMOVAL CONTRACTOR HAVE BEEN FRUITLESS. THE PRESENT CLAIM IS MADE TO GAO UNDER THE PROVISIONS OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. SEC. 241 ARE CURRENTLY FOUND IN GAO ORDER NO. 0267.1 (AUGUST 26.

B-199074.OM, FEB 23, 1981

SUBJECT: CLAIM OF JOSEPHINE CLARK FOR REIMBURSEMENT FOR DAMAGE TO PERSONAL PROPERTY - B-199074-O.M.

ACTING CHIEF, ADMINISTRATIVE FINANCE SECTION, OBFM - MS. JUDITH CZARSTY:

THIS IS IN RESPONSE TO YOUR REQUEST FOR AN OPINION ON WHETHER A CLAIM BY MS. JOSEPHINE CLARK, A FORMER GENERAL ACCOUNTING OFFICE (GAO) EMPLOYEE, FOR REIMBURSEMENT FOR DAMAGE TO HER AUTOMOBILE INCURRED WHEN SHE SKIDDED ON A RAMP ENTERING THE UNDERGROUND PARKING LOT OF THE GAO BUILDING DURING A HEAVY SNOW STORM, MAY BE ALLOWED UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SECS. 240-243 (1976). FOR THE REASONS THAT FOLLOW, WE CONCLUDE THAT IT MAY NOT.

ACCORDING TO THE RECORD, ON FEBRUARY 7, 1979, AT APPROXIMATELY 6:30 A.M., MS. CLARK, THEN EMPLOYED AT GAO, WAS DRIVING DOWN THE RAMP INTO THE UNDERGROUND PARKING LOT ON THE H STREET SIDE OF THE GAO BUILDING WHEN HER CAR STARTED SKIDDING TOWARD THE CONCRETE EMBANKMENT ON THE RIGHT SIDE OF THE RAMP. IN ORDER TO AVOID HITTING THE SIDE, MS. CLARK CUT THE WHEELS OF HER CAR TO THE LEFT AND THE CAR SLID INTO A LARGE TRUCK PARKED ON THE LEFT SIDE, CAUSING DAMAGE TO MS. CLARK'S CAR IN THE AMOUNT OF $568.83. MS. CLARK STATED THAT, EVEN THOUGH IT HAD BEEN SNOWING HEAVILY MOST OF THE NIGHT, THE RAMP HAD NOT BEEN CLEARED OF SNOW AND ICE BY THE CONTRACTOR THE GENERAL SERVICES ADMINISTRATION (GSA) HAD HIRED FOR SNOW REMOVAL. ACCORDING TO MS. CLARK, RIGHT AFTER THE ACCIDENT, THE GSA CONTRACTOR'S EMPLOYEES STARTED CLEANING OFF THE RAMP.

MS. CLARK FILED A CLAIM AGAINST GSA UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC. 2672. HOWEVER, THE RESPONSIBILITY FOR SNOW REMOVAL AT THE GAO BUILDING WAS THAT OF A CONTRACTOR, A-Z MAINTENANCE, INC. CONTRACTORS ARE SPECIFICALLY EXCLUDED FROM THE DEFINITION OF "AGENCY" IN THE FEDERAL TORT CLAIMS ACT (28 U.S.C. SEC. 2671) AND THE ACT HAS THEREFORE BEEN VIEWED AS NOT APPLICABLE TO TORTS BY INDEPENDENT CONTRACTORS. SEE LESTER S. JAYSON, HANDLING FEDERAL TORT CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES, SEC. 202.07. AS A RESULT, GSA DENIED THE CLAIM. MS. CLARK'S EFFORTS TO OBTAIN COMPENSATION FROM THE SNOW REMOVAL CONTRACTOR HAVE BEEN FRUITLESS.

THE PRESENT CLAIM IS MADE TO GAO UNDER THE PROVISIONS OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SEC. 241(B)(1), WHICH AUTHORIZES THE HEAD OF A NON-MILITARY AGENCY OR HIS DESIGNEE, UNDER SUCH REGULATIONS AS THE AGENCY HEAD MAY PRESCRIBE, TO SETTLE AND PAY CLAIMS BY AN EMPLOYEE OF THE AGENCY FOR DAMAGE TO, OR LOSS OF PERSONAL PROPERTY INCIDENT TO THE EMPLOYEE'S SERVICE.

GAO'S REGULATIONS IMPLEMENTING 31 U.S.C. SEC. 241 ARE CURRENTLY FOUND IN GAO ORDER NO. 0267.1 (AUGUST 26, 1980). AT THE TIME OF MS. CLARK'S ACCIDENT AND CLAIM, THE REGULATIONS WERE CONTAINED IN COMPTROLLER GENERAL'S ORDER (CGO) NO. 1.39, SUPERSEDED BY GAO ORDER 0267.1. GAO ORDER 0267.1, CHAPTER 2, PARA. 5.E STATES "TRAVEL BETWEEN QUARTERS AND PLACE OF DUTY AND PARKING INCIDENT THERETO DOES NOT CONSTITUTE USE IN THE PERFORMANCE OF DUTY UNDER THIS ORDER." CGO 1.39 DID NOT CONTAIN THIS LANGUAGE. HOWEVER, FOR PURPOSES OF THIS CASE, IT IS IMMATERIAL WHICH VERSION OF THE REGULATIONS WE APPLY SINCE, IN OUR OPINION, THE QUOTED LANGUAGE STATES THE PRINCIPLE THAT WOULD BE APPLICABLE EVEN IF NOT EXPRESSLY STATED IN THE REGULATIONS.

ORDINARY COMMUTING, THAT IS, TRAVEL BETWEEN ONE'S PERMANENT RESIDENCE AND PERMANENT PLACE OF DUTY, IS GENERALLY VIEWED AS PERSONAL TO THE EMPLOYEE AND NOT BUSINESS-RELATED. THUS, FOR EXAMPLE, ORDINARY COMMUTING IS NOT WITHIN AN EMPLOYEE'S "SCOPE OF EMPLOYMENT" FOR PURPOSES OF THE FEDERAL TORT CLAIMS ACT. E.G., PEREZ V. UNITED STATES, 253 F.SUPP. 619 (D. MASS. 1966), AFF'D, 368 F.2D 320 (1ST CIR. 1966). THE UNDERLYING PRINCIPLE IS THAT A SERVANT IS NOT ENGAGED IN HIS MASTER'S BUSINESS WHEN TRAVELLING BETWEEN HOME AND WORK. PEREZ, SUPRA, 368 F.2D AT 321.

SIMILARLY, ORDINARY COMMUTING IS A NON-DEDUCTIBLE PERSONAL EXPENSE FOR PURPOSES OF SECTION 262 OF THE INTERNAL REVENUE CODE (26 U.S.C. SEC. 262). IT IS NOT DEDUCTIBLE AS A BUSINESS EXPENSE UNDER IRC SEC. 162 SINCE IT LACKS "THE NECESSARY DIRECT RELATION TO THE PROSECUTION OF THE BUSINESS." COMMISSIONER V. FLOWERS, 326 U. S. 465 (1946); SANDERS V. COMMISSIONER, 439 F.2D 296 (9TH CIR. 1971).

WE THINK THE SAME REASONING APPLIES TO THE QUESTION OF WHETHER ORDINARY COMMUTING "AND PARKING INCIDENT THERETO" CAN BE VIEWED AS "INCIDENT TO SERVICE" FOR PURPOSES OF 31 U.S.C. SEC. 241. PREVIOUS CLAIMS FOR DAMAGE TO PRIVATELY OWNED VEHICLES WHICH HAVE BEEN ALLOWED UNDER 31 U.S.C. SEC. 241 HAVE ALL INVOLVED SITUATIONS WHERE USE OF THE AUTOMOBILE WAS OFFICIALLY AUTHORIZED BY THE AGENCY FOR USE ON OFFICIAL AGENCY BUSINESS, SUCH AS TRAVEL TO A TEMPORARY DUTY SITE. SEE B-190853 O.M., NOVEMBER 6, 1979; B-187262-O.M. JANUARY 25, 1977. WE ARE AWARE OF NO CASE ALLOWING AN EMPLOYEE'S CLAIM UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT FOR DAMAGE TO A PRIVATELY OWNED AUTOMOBILE INCURRED WHILE COMMUTING FROM HOME TO WORK WHERE USE OF THE EMPLOYEE'S AUTOMOBILE WAS BY HIS OWN CHOICE AND FOR HIS OWN PERSONAL CONVENIENCE.

IN B-180994, JUNE 12, 1974, WE WERE ASKED BY THE ENVIRONMENTAL PROTECTION AGENCY (EPA) TO REVIEW A SITUATION SIMILAR TO THE INSTANT CASE. THERE, AN EPA EMPLOYEE FILED A CLAIM UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT FOR LOSS DUE TO THE THEFT OF HIS BICYCLE WHICH HE USED TO COMMUTE FROM HOME TO WORK. THE BICYCLE WAS STOLEN FROM A FEDERALLY OWNED OR LEASED GARAGE WHERE THE EMPLOYEE KEPT IT LOCKED UP DURING THE WORKING DAY. ALTHOUGH WE COULD NOT RENDER A DECISION ON THE MERITS OF THE CLAIMS BECAUSE THE AGENCY'S SETTLEMENT OF A CLAIM UNDER 31 U.S.C. SEC. 241 IS "FINAL AND CONCLUSIVE" (31 U.S.C. SEC. 242), WE DID STATE THAT:

"IT WOULD APPEAR TO US TO BE AT LEAST QUESTIONABLE AS TO WHETHER THE THEFT OF AN EMPLOYEE'S BICYCLE FROM A GARAGE EITHER FEDERALLY OWNED OR LEASED AND IN WHICH HE WAS PERMITTED TO LEAVE HIS BICYCLE, APPARENTLY FOR HIS OWN CONVENIENCE IN COMMUTING TO WORK, IS SUCH A LOSS OF PERSONAL PROPERTY INCIDENT TO HIS SERVICE AS WOULD BE CONTEMPLATED BY THE ACT."

WHILE THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT DOES NOT DEFINE "INCIDENT TO SERVICE" AND WHILE WE HAVE INDICATED IN THE PAST THAT THE TERM SHOULD BE APPLIED LIBERALLY (E.G., B-180778-O.M., APRIL 17, 1974), WE DO NOT THINK CONGRESS INTENDED FOR THE GOVERNMENT TO ASSUME THE COSTS OF DAMAGE OCCURRING WHILE COMMUTING TO AND FROM WORK. ACCORDINGLY, AND CONSISTENT WITH THE TREATMENT GIVEN ORDINARY COMMUTING IN THE OTHER CONTEXTS NOTED ABOVE, WE CONCLUDE THAT THE CLAIM SHOULD NOT BE ALLOWED.

DIGEST

CLAIM BY GAO EMPLOYEE FOR DAMAGE TO PRIVATELY-OWNED VEHICLE, INCURRED WHEN CAR SKIDDED ON ENTRANCE RAMP TO GAO PARKING GARAGE DURING SNOWSTORM, MAY NOT BE ALLOWED UNDER MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SEC. 241, SINCE ORDINARY COMMUTING BETWEEN HOME AND WORK AND PARKING INCIDENT THERETO ARE NOT "INCIDENT TO SERVICE" FOR PURPOSES OF THAT ACT.