B-201654.OM, JAN 12, 1981

B-201654.OM: Jan 12, 1981

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CINCINNATI RO - DALE LEDMAN: THIS MEMORANDUM ANSWERS SEVERAL QUESTIONS YOU HAVE ASKED WITH RESPECT TO THE CONSEQUENCES OF FEDERAL EMPLOYEES BEING ALLOWED TO BE REIMBURSED FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES. QUESTION 1: DOES THE GENERAL SERVICES ADMINISTRATION (GSA) HAVE AUTHORITY UNDER PRESENT LAW TO AMEND ITS REGULATIONS TO ALLOW FEDERAL EMPLOYEES TO RECEIVE A MILEAGE ALLOWANCE FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES? ANSWER: GSA DOES NOT APPEAR TO HAVE AUTHORITY UNDER PRESENT LAW TO AMEND ITS REGULATIONS TO ALLOW FEDERAL EMPLOYEES TO RECEIVE A MILEAGE ALLOWANCE FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES. IT MAY HAVE AUTHORITY TO ALLOW FEDERAL EMPLOYEES TO BE REIMBURSED FOR ACTUAL EXPENSES INCURRED IN THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES.

B-201654.OM, JAN 12, 1981

SUBJECT: USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES BY FEDERAL EMPLOYEES (FILE B-201654; CODE 003485)

GAO EVALUATOR, CINCINNATI RO - DALE LEDMAN:

THIS MEMORANDUM ANSWERS SEVERAL QUESTIONS YOU HAVE ASKED WITH RESPECT TO THE CONSEQUENCES OF FEDERAL EMPLOYEES BEING ALLOWED TO BE REIMBURSED FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES.

QUESTION 1: DOES THE GENERAL SERVICES ADMINISTRATION (GSA) HAVE AUTHORITY UNDER PRESENT LAW TO AMEND ITS REGULATIONS TO ALLOW FEDERAL EMPLOYEES TO RECEIVE A MILEAGE ALLOWANCE FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES?

ANSWER: GSA DOES NOT APPEAR TO HAVE AUTHORITY UNDER PRESENT LAW TO AMEND ITS REGULATIONS TO ALLOW FEDERAL EMPLOYEES TO RECEIVE A MILEAGE ALLOWANCE FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES, BUT IT MAY HAVE AUTHORITY TO ALLOW FEDERAL EMPLOYEES TO BE REIMBURSED FOR ACTUAL EXPENSES INCURRED IN THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES. IN FACT, GSA REGULATIONS ALREADY APPEAR TO COVER SUCH EXPENSES, ALTHOUGH NOT EXPLICITLY.

SECTION 5704(A) OF TITLE 5, U.S.C. IS THE ONLY FEDERAL STATUTE PROVIDING SPECIFIC MILEAGE EXPENSES FOR EMPLOYEES USING PRIVATELY-OWNED VEHICLES WHILE ENGAGED IN TRAVEL ON OFFICIAL BUSINESS. IT SPECIFICALLY PROVIDES MILEAGE AND RELATED ALLOWANCES FOR THE USE OF A PRIVATELY OWNED MOTORCYCLE, AUTOMOBILE, OR AIRPLANE. GSA IS AUTHORIZED BY 5 U.S.C. SEC. 5707(B)(2) (1976) TO ISSUE REGULATIONS PRESCRIBING MILEAGE ALLOWANCES FOR THESE MOTOR VEHICLES NOT IN EXCESS OF THOSE ESTABLISHED IN SECTION 5704(A). THEREFORE, NO STATUTORY BASIS EXISTS FOR MAKING PAYMENT OF A MILEAGE ALLOWANCE TO AN EMPLOYEE FOR THE USE OF HIS PRIVATELY-OWNED BICYCLE ON OFFICIAL TRAVEL. FN1

THE LEGISLATIVE HISTORY OF THE MILEAGE ALLOWANCE INDICATES THAT CONGRESS WAS ONLY INTERESTED IN REIMBURSING A TRAVELER FOR THE EXPENSES OF OPERATING A PRIVATELY-OWNED MOTOR VEHICLE. H. R. REP. NO. 389, 81ST CONG., 1ST SESS. 3 (1949).

ALTHOUGH A MILEAGE ALLOWANCE CANNOT BE PROVIDED UNDER CURRENT LAW FOR THE USE OF BICYCLES OR OTHER TWO-WHEELED VEHICLES, REIMBURSEMENT FOR ACTUAL EXPENSES INCURRED IN THE USE OF BICYCLES MAY BE AUTHORIZED. SECTION 5706 OF TITLE 5, U.S.C. PROVIDES:

"EXCEPT AS OTHERWISE PERMITTED BY THIS SUBCHAPTER OR BY STATUTES RELATING TO MEMBERS OF THE UNIFORMED SERVICES, ONLY ACTUAL AND NECESSARY TRAVEL EXPENSES MAY BE ALLOWED TO AN INDIVIDUAL HOLDING EMPLOYMENT OR APPOINTMENT UNDER THE UNITED STATES."

IF AN INDIVIDUAL RIDING A BICYCLE CAN DEMONSTRATE ACTUAL TRAVEL EXPENSES, HE MAY BE ENTITLED TO REIMBURSEMENT FOR THOSE EXPENSES UNDER THIS STATUTE.

A BICYCLE IS NOT LISTED AS A METHOD OF TRANSPORTATION AUTHORIZED FOR OFFICIAL TRAVEL IN THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7), PARA. 1 2.2A, BUT THAT REGULATION STATES THAT "OTHER NECESSARY MEANS OF CONVEYANCE" MAY BE AUTHORIZED FOR OFFICIAL TRAVEL. THE METHOD OF TRANSPORTATION TO BE USED IS THAT WHICH WILL RESULT IN THE GREATEST ADVANTAGE TO THE GOVERNMENT. FTR, PARA. 1-2.2B. EVEN IF THE USE OF A PRIVATELY-OWNED CONVEYANCE IS DETERMINED NOT TO BE ADVANTAGEOUS TO THE GOVERNMENT, SEE FTR, PARA. 1-2.2C(3), SUCH USE MAY BE AUTHORIZED OR APPROVED IF DONE AS A MATTER OF PERSONAL PREFERENCE AND IF IT IS COMPATIBLE WITH THE PERFORMANCE OF OFFICIAL BUSINESS. FTR, PARA. 1 2.2D. THESE REGULATIONS SEEM TO INCLUDE BICYCLES AND OTHER TWO-WHEELED VEHICLES AS POSSIBLE MEANS OF TRANSPORTATION.

REIMBURSEMENT FOR TRAVEL IN PRIVATELY-OWNED AUTOMOBILES, MOTORCYCLES OR AIRPLANES IS ON A MILEAGE BASIS EXCEPT WHERE AN ACTUAL EXPENSE METHOD OF REIMBURSEMENT IS AUTHORIZED BY LAW. FTR, PARA. 1-4.6A. REIMBURSEMENT FOR TRAVEL BY ANY OTHER PRIVATELY-OWNED CONVEYANCE, HOWEVER, IS CONTROLLED BY PARA. 1-4.6B, WHICH ALLOWS RECOVERY OF ACTUAL EXPENSES PROVIDED THEY DO NOT EXCEED THE COST OF TRANSPORTATION AVAILABLE BY COMMON CARRIER.

FTR, PARA. 1-4.6C INDICATES WHAT EXPENSES ARE REIMBURSABLE:

"FOR SUCH TRAVEL ON AN ACTUAL EXPENSE BASIS THE EMPLOYEE SHALL BE ENTITLED TO REIMBURSEMENT OF THE COST OF GASOLINE, OIL, FEED OF HORSES, GARAGE OR HANGAR RENT AND STABLING OF HORSES WHILE OFFICIALLY DETAINED EN ROUTE, AND BRIDGE, FERRY, AND OTHER TOLLS. *** CHARGES FOR REPAIRS, DEPRECIATION, REPLACEMENT, GREASE, ANTIFREEZE, TOWAGE, AND SIMILAR SPECULATIVE EXPENSES SHALL NOT BE ALLOWED ***."

THUS, GSA REGULATIONS MAY ALREADY PERMIT THE REIMBURSEMENT OF SOME ACTUAL EXPENSES INCURRED IN THE USE OF A BICYCLE OR OTHER TWO-WHEELED VEHICLE.

GAO HAS CONSIDERED ONE CASE IN WHICH A FEDERAL EMPLOYEE CLAIMED ENTITLEMENT TO REIMBURSEMENT FOR MILEAGE EXPENSES FOR THE USE OF A PRIVATELY-OWNED BICYCLE. B-184641, SEPTEMBER 11, 1975. THE EMPLOYEE'S CLAIM WAS REJECTED ON THE BASIS THAT THE CONGRESSIONAL INTENT AND LANGUAGE OF 5 U.S.C. SEC. 5704 (1976) AND FTR, PARA. 1-4.1A, MAKE IT CLEAR THAT MILEAGE PAYMENTS MAY NOT BE MADE FOR THE USE OF A BICYCLE. GAO DID NOT CONSIDER WHETHER ACTUAL EXPENSES WERE RECOVERABLE. BUT, IT HAS ALLOWED THE RECOVERY OF ACTUAL EXPENSES FOR TRAVEL BY A PRIVATELY OWNED BOAT, FOR WHICH A MILEAGE ALLOWANCE COULD NOT BE OBTAINED. 47 COMP.GEN. 325 (1967). THIS DECISION WAS GOVERNED BY PARA. 1-4.6 OF THE FTR (THEN PARA. 3.5A).

QUESTION 2: IF GSA COULD ALLOW PAYMENT OF EXPENSES FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES, WHAT WOULD BE THE CONSEQUENCES UNDER THE FEDERAL TORTS CLAIM ACT (FTCA)?

ANSWER: IF A FEDERAL EMPLOYEE RIDING A BICYCLE OR OTHER TWO-WHEELED VEHICLE WHILE IN THE SCOPE OF EMPLOYMENT INJURES AN INDIVIDUAL OR CAUSES PROPERTY DAMAGE, DAMAGES MAY BE RECOVERABLE FROM THE UNITED STATES UNDER FTCA. MOST CASES UNDER FTCA CONCERNING PERSONAL INJURIES AND PROPERTY DAMAGE ARISE FROM THE OPERATION OF MOTOR VEHICLES. WE HAVE FOUND NO CASES INVOLVING THE OPERATION OF BICYCLES OR OTHER TWO WHEELED VEHICLES.

THE PURPOSE OF FTCA, 28 U.S.C. SEC. 1346(B) (1976) IS TO PROVIDE A REMEDY FOR THIRD PERSONS WHO HAVE BEEN DAMAGED -

"*** BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING IN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, UNDER CIRCUMSTANCES WHERE THE UNITED STATES, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED."

THE UNITED STATES IS EXCLUSIVELY LIABLE FOR DAMAGE RESULTING FROM THE NEGLIGENCE OF GOVERNMENT EMPLOYEES OPERATING A MOTOR VEHICLE WHILE ON OFFICIAL BUSINESS, UPTAGRAFFT V. UNITED STATES, 315 F.2D 200 (4TH CIR. 1963), CERT. DENIED 375 U. S. 818 (1963), AND THE EMPLOYEES ARE IMMUNE FROM COMMON LAW TORT ACTIONS. GARRETT V. JEFFCOAT, 483 F.2D 590 (4TH CIR. 1973), CERT. DENIED 414 U. S. 1071 (1973); B-127343, DECEMBER 15, 1976.

AN EMPLOYEE DRIVING HIS OWN AUTOMOBILE MAY BE FOUND TO HAVE BEEN ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF AN ACCIDENT WHEN HE RECEIVES AUTHORIZATION FOR THE OFFICIAL USE OF HIS CAR. THE UNITED STATES IS LIABLE FOR THE EMPLOYEE'S ACTS IF WHEN THE ACCIDENT OCCURRED THE EMPLOYEE WAS SERVING THE BUSINESS OF THE EMPLOYER AND WAS ENGAGED IN THE EMPLOYER'S WORK. UNITED STATES V. ROMITTI, 363 F.2D 662, 667 (9TH CIR. 1966). SEE COURTWRIGHT V. PITTMAN, 264 F.SUPP. 114 (D.COLO. 1967). THE SAME PRINCIPLES APPLY WHEN AN EMPLOYEE IS DRIVING A GOVERNMENT-OWNED VEHICLE, EXCEPT THAT WHEN AN INDIVIDUAL IS DRIVING HIS OWN CAR IT MUST BE ADVANTAGEOUS TO THE GOVERNMENT FOR HIM TO DO SO IN ORDER FOR THE UNITED STATES TO BE LIABLE UNDER FTCA FOR CLAIMS OCCURRING WHILE HE WAS DRIVING. SEE UNITED STATES V. ROMITTI, SUPRA. CF. MROCHINSKI V. TENDELL, 273 F. SUPP. 221 (E. D. WISC. 1967).

EMPLOYEES ARE FULLY PROTECTED WHEN DRIVING GOVERNMENT OR PRIVATELY OWNED AUTOMOBILES WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE RISK FALLS EXCLUSIVELY ON GOVERNMENT. SEE B-127343, SUPRA. THE FTCA DOES NOT DISTINGUISH BETWEEN AN EMPLOYEE'S USE OF AN AUTOMOBILE OR A BICYCLE OR OTHER TWO-WHEELED VEHICLE AS A MEANS OF TRANSPORTATION. THEREFORE, THE SAME RULES SHOULD APPLY TO THE USE OF A BICYCLE OR OTHER TWO WHEELED VEHICLES.

QUESTION 3: IF GSA COULD ALLOW PAYMENT OF EXPENSES FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES, WHAT ARE THE CONSEQUENCES UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT (FECA)?

ANSWER: IF A FEDERAL EMPLOYEE RIDING A BICYCLE OR OTHER TWO-WHEELED VEHICLE IN THE PERFORMANCE OF DUTY INJURES HIMSELF, HE IS ENTITLED TO BENEFITS UNDER FECA, WHETHER OR NOT THE VEHICLE WAS GOVERNMENT OR PRIVATELY-OWNED.

FECA ENTITLES FEDERAL EMPLOYEES TO RECEIVE COMPENSATION FROM THE UNITED STATES FOR DISABILITY OR DEATH RESULTING FROM PERSONAL INJURY SUSTAINED WHILE IN THE PERFORMANCE OF DUTY. 5 U.S.C. SEC. 8102 (1976). THE TERM "PERFORMANCE OF DUTY" ENCOMPASSES TRAVEL ON OFFICIAL BUSINESS. THUS, FECA WOULD COVER THE INJURIES OF A FEDERAL EMPLOYEE SUSTAINED WHILE RIDING EITHER A GOVERNMENT OR PRIVATELY-OWNED BICYCLE OR OTHER TWO-WHEELED VEHICLE.

IF A FEDERAL EMPLOYEE ON OFFICIAL BUSINESS IS INJURED BY ANOTHER FEDERAL EMPLOYEE DRIVING A MOTOR VEHICLE WITHIN THE SCOPE OF EMPLOYMENT, HIS ACTION IS UNDER FECA, NOT FTCA. THIS WOULD ALSO APPLY TO A SITUATION WHERE THE INJURY WAS CAUSED BY A FEDERAL EMPLOYEE RIDING A BICYCLE OR OTHER TWO-WHEELED VEHICLE, BECAUSE THE COMPENSATION BENEFITS UNDER FECA ARE THE EXCLUSIVE REMEDY OF FEDERAL EMPLOYEES INJURED IN THE COURSE OF EMPLOYMENT. SEE PITTMAN V. UNITED STATES, 312 F. SUPP. 818, 819 (E. D. VA. 1970).

THERE SHOULD BE NO DIFFICULTY INCLUDING INJURIES WHICH OCCUR WHILE RIDING A BICYCLE OR OTHER TWO-WHEELED VEHICLE UNDER FECA SINCE WORKER COMPENSATION ACTS ARE TO BE LIBERALLY CONSTRUED IN ACCORDANCE WITH THE LEGISLATIVE INTENT THAT HUMANE PURPOSES BE ACCOMPLISHED. PITTMAN V. UNITED STATES, SUPRA, AT 819. THE FINAL DETERMINATION OF AWARDS UNDER THIS ACT, HOWEVER, IS TO BE MADE BY THE SECRETARY OF LABOR OR HIS DESIGNEE. 5 U.S.C. SEC. 8128(B) (1976).

ATTACHMENT

THE FOLLOWING LANGUAGE EXPLAINING THE CONSEQUENCES OF THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES ON OFFICIAL BUSINESS MAY BE INCORPORATED IN THE AUDIT REPORT.

THE FEDERAL TORT CLAIMS ACT (FTCA) AND THE FEDERAL EMPLOYEES COMPENSATION ACT (FECA) WILL PROVIDE REMEDIES FOR INJURIES CAUSED OR SUSTAINED BY FEDERAL EMPLOYEES IN THEIR USE OF BICYCLES OR OTHER TWO WHEELED VEHICLES WHILE ON OFFICIAL BUSINESS.

THE FTCA PROVIDES A REMEDY FOR THIRD PARTIES WHO HAVE BEEN DAMAGED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY FEDERAL EMPLOYEE ACTING WITHIN THE SCOPE OF EMPLOYMENT. WHEN A FEDERAL EMPLOYEE ACTING IN THE SCOPE OF EMPLOYMENT INJURES A PERSON OR DAMAGES PROPERTY DUE TO THE NEGLIGENT DRIVING OF A GOVERNMENT OR PRIVATELY-OWNED AUTOMOBILE, THE GOVERNMENT ASSUMES LIABILITY. GENERALLY, AN EMPLOYEE IS WITHIN THE SCOPE OF EMPLOYMENT WHEN PERFORMING SPECIFIC DUTIES ASSIGNED TO HIM, SUCH AS TRAVELING ON OFFICIAL BUSINESS. FTCA DOES NOT DISTINGUISH BETWEEN AN EMPLOYEE'S USE OF AN AUTOMOBILE OR BICYCLE OR OTHER TWO WHEELED VEHICLE AS A MEANS OF TRANSPORTATION. ANY ACCIDENTS THAT OCCUR WHEN A FEDERAL EMPLOYEE IS USING A BICYCLE OR OTHER TWO-WHEELED VEHICLE INSTEAD OF AN AUTOMOBILE MAY RESULT IN LIABILITY OF THE GOVERNMENT FOR DAMAGES CAUSED BY THE EMPLOYEE'S NEGLIGENCE OR WRONGFUL CONDUCT.

A FEDERAL EMPLOYEE INJURED IN THE PERFORMANCE OF DUTY IS ENTITLED TO COMPENSATION BENEFITS UNDER FECA. THE STATUTE WOULD APPEAR TO COVER INJURIES OCCURRING WHILE RIDING A GOVERNMENT OR PRIVATELY-OWNED BICYCLE OR OTHER TWO-WHEELED VEHICLE IN THE PERFORMANCE OF DUTY. SUCH BENEFITS ARE THE EXCLUSIVE REMEDY AVAILABLE TO FEDERAL EMPLOYEES INJURED IN THE COURSE OF EMPLOYMENT.

DIGESTS

GSA DOES NOT APPEAR TO HAVE AUTHORITY UNDER PRESENT LAW TO AMEND ITS REGULATIONS TO ALLOW FEDERAL EMPLOYEES TO RECEIVE A MILEAGE ALLOWANCE FOR USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES, BUT IT MAY HAVE AUTHORITY TO ALLOW FEDERAL EMPLOYEES TO BE REIMBURSED FOR ACTUAL EXPENSES INCURRED IN USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES. FEDERAL TRAVEL REGULATIONS, PARA. 1-4.6 ALREADY APPEARS TO COVER SUCH EXPENSES.

ASSUMING GSA CAN ALLOW PAYMENT OF EXPENSES FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES, DAMAGES MAY BE RECOVERABLE FROM THE UNITED STATES UNDER THE FEDERAL TORTS CLAIMS ACT WHEN A FEDERAL EMPLOYEE RIDING A BICYCLE OR OTHER TWO-WHEELED VEHICLE WHILE IN THE SCOPE OF EMPLOYMENT INJURES AN INDIVIDUAL OR CAUSES PROPERTY DAMAGE. EMPLOYEE IS WITHIN SCOPE OF EMPLOYMENT WHILE SERVING THE BUSINESS OF EMPLOYER AND ENGAGING IN THE EMPLOYER'S WORK.

ASSUMING GSA CAN ALLOW PAYMENT OF EXPENSES FOR THE USE OF BICYCLES AND OTHER TWO-WHEELED VEHICLES, A FEDERAL EMPLOYEE WHO INJURES HIMSELF RIDING A BICYCLE OR OTHER TWO-WHEELED VEHICLE IN PERFORMANCE OF DUTY IS ENTITLED TO BENEFITS UNDER FEDERAL EMPLOYEES COMPENSATION ACT.

FN1 H. R. 6180 WAS INTRODUCED IN THE 96TH CONG., 1ST SESS., TO AMEND 5 U.S.C. SEC. 5704(A) IN ORDER TO PROVIDE FOR THE ALLOWANCE OF 4 CENTS PER MILE TO FEDERAL EMPLOYEES FOR THE USE OF A PRIVATELY-OWNED BICYCLE OR PEDAL ASSISTED VEHICLE WHEN ENGAGED ON OFFICIAL BUSINESS. 123 CONG. REC. 12351 (1979). THE BILL WAS REFERRED TO THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS (SUBCOMMITTEE ON GOVERNMENT ACTIVITIES AND TRANSPORTATION) AND NO FURTHER ACTION WAS TAKEN ON IT BEFORE CONGRESS ADJOURNED.