B-170296, AUG. 31, 1970

B-170296, AUG. 31, 1970

EMPLOYEES -- TEMPORARY DUTY TRAVEL TOLLS SUSTAINING SETTLEMENT OF CLAIM DISALLOWING V.A. EMPLOYEE REIMBURSEMENT FOR TOLL CHARGES INCIDENT TO TEMPORARY DUTY TRAVEL FROM NORTHAMPTON, MASS., TO CHICAGO AND RETURN. EMPLOYEE WHO WAS AUTHORIZED MILEAGE AND TOLLS FOR TRAVEL CONTRARY TO REGULATIONS WHICH PRECLUDED PAYMENT FOR TOLLS WHEN ROUND TRIP TRAVEL IS IN EXCESS OF 1,500 MILES MAY NOT BE ALLOWED TOLLS SINCE AN UNAUTHORIZED ACT BY A GOVERNMENT EMPLOYEE MAY NOT BE RELIED UPON TO SUBJECT THE GOVERNMENT TO ANY GREATER LIABILITY THAN WOULD HAVE PREVAILED BUT FOR THE UNAUTHORIZED ACT.

TO MR. PAUL LYONS:

WE REFER FURTHER TO YOUR LETTER OF JUNE 2, 1970, WHICH IN EFFECT ASKS FOR RECONSIDERATION OF OUR CLAIM SETTLEMENT ACTION OF MAY 19, 1970, DISALLOWING YOUR CLAIM FOR TOLL CHARGES IN THE AMOUNT OF $24.05 INCIDENT TO TEMPORARY DUTY TRAVEL.

AS STATED IN OUR CLAIM SETTLEMENT ACTION:

"THE ABOVE MENTIONED TRAVEL AUTHORIZATION AUTHORIZED YOU TO TRAVEL FROM NORTHAMPTON TO CHICAGO AND RETURN. IT PROVIDED THAT YOU WOULD BE REIMBURSED FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE (NOT ADVANTAGEOUS TO THE GOVERNMENT) AT THE RATE OF SIX CENTS PER MILE, AND TOLLS WERE AUTHORIZED. HOWEVER, THE PAYMENT OF YOUR CLAIM FOR TRAVEL EXPENSES BY THE ADMINISTRATIVE OFFICE WAS LIMITED TO MILEAGE ALLOWANCE AT SIX CENTS PER MILE, AND NO REIMBURSEMENT WAS ALLOWED FOR THE $24.05 TOLL CHARGES.

"SECTION 3.5B(1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES, IN PART, THAT REIMBURSEMENT FOR THE COST OF AUTOMOBILE BRIDGE, ROAD AND TUNNEL TOLLS WILL BE ALLOWED UNLESS TRAVEL ORDER OR OTHER ADMINISTRATIVE DETERMINATION RESTRICTS THEIR ALLOWANCE. THE VETERANS ADMINISTRATION REGULATIONS, PARAGRAPH 209.03C(1) AND (2) PROVIDES FOR THE PAYMENT OF SUCH TOLL CHARGES FOR ROUND TRIPS OF 1,500 MILES OR LESS, BUT WHERE THE ROUND TRIP IS MORE THAN 1,500 MILES REIMBURSEMENT FOR SUCH TOLLS IS NOT AUTHORIZED.

"SINCE THE ROUND TRIP TRAVEL IN YOUR CASE WAS OVER 1,500 MILES, IT APPEARS THAT THE AUTHORIZATION OF TOLLS IN YOUR TRAVEL AUTHORIZATION WAS IN ERROR IN VIEW OF THE ADMINISTRATIVE REGULATIONS RESTRICTING ALLOWANCE OF TOLLS TO ROUND TRIP TRAVEL OF 1,500 MILES OR LESS."

YOU CONTEND, FIRST, THAT YOU SHOULD NOT BE REQUIRED TO BEAR THE BURDEN OF ANY ADMINISTRATIVE ERROR THAT MAY HAVE OCCURRED IN THE AUTHORIZATION OF TOLLS FOR YOUR TRIP. SECOND, YOU IMPLY THAT THERE WAS NO ERROR, AS YOU DISAGREE WITH THE SUGGESTION THAT THE VETERANS ADMINISTRATION REGULATIONS DO NOT AUTHORIZE REIMBURSEMENT OF TOLLS ON ROUND TRIPS OF OVER 1,500 MILES.

SECTIONS 209.03(C)(1) AND (2) OF THE VETERANS ADMINISTRATION REGULATIONS READ:

"(1) FOR ROUND TRIP TRAVEL OF 1,500 MILES OR LESS, REIMBURSEMENT MAY NOT EXCEED 6 CENTS A MILE, PLUS THE NECESSARY COSTS OF FERRY FARES, BRIDGE, ROAD AND TUNNEL TOLLS (SEE PAR. 214.03C(6)). PER DIEM WILL BE LIMITED TO THE AMOUNT ALLOWABLE AS PROVIDED IN SUBPARAGRAPH (4) BELOW. PARKING FEES ARE NOT ALLOWED.

"(2) FOR ROUND TRIP TRAVEL OF MORE THAN 1,500 MILES, REIMBURSEMENT MAY NOT EXCEED CONSTRUCTIVE COMMON CARRIER COSTS AS PRESCRIBED IN SUBPARAGRAPHS (A) THROUGH (C) AND (3) AND (5) BELOW OR 6 CENTS PER MILE, WHICHEVER IS THE LESSER AMOUNT. PER DIEM WILL BE LIMITED TO THE AMOUNT PRESCRIBED IN SUBPARAGRAPH (4) BELOW."

CONSTRUCTIVE COMMON CARRIER COSTS, IN THE CASE OF YOUR TRAVEL IN EXCESS OF 1,500 MILES HAVING EXCEEDED THE COST COMPUTED AT THE RATE OF 6 CENTS PER MILE, THERE CLEARLY WOULD BE NO BASIS CONSISTENT WITH THE PROVISIONS OF SECTION 209.03(C)(2) FOR AUTHORIZING REIMBURSEMENT OF ANY AMOUNT IN EXCESS OF 6 CENTS TIMES THE NUMBER OF MILES TRAVELED.

THE ADMINISTRATIVE ERROR IN STATING THAT REIMBURSEMENT OF TOLLS IN ADDITION TO PAYMENT FOR MILEAGE WAS AUTHORIZED, IS UNFORTUNATE. HOWEVER, SUCH ERROR CANNOT FORM THE BASIS OF A VALID CLAIM. IT IS WELL ESTABLISHED THAT AN UNAUTHORIZED ACT OF A GOVERNMENT EMPLOYEE MAY NOT BE RELIED UPON TO SUBJECT THE GOVERNMENT TO ANY GREATER LIABILITY THAN WOULD HAVE PREVAILED BUT FOR THAT UNAUTHORIZED ACT. MOREOVER, SINCE IT DOES NOT APPEAR THAT YOU INCURRED TOLL EXPENSES IN RELIANCE UPON THE INDICATED AUTHORIZATION THEREFOR, IT IS DIFFICULT TO UNDERSTAND HOW THE FAILURE TO REIMBURSE YOU THE COST INVOLVED OPERATES AS A PENALTY YOU MUST BEAR FOR THE ADMINISTRATIVE ERROR COMMITTED. HAD THE ERROR NOT BEEN COMMITTED YOU WOULD STILL HAVE BEEN REQUIRED TO BEAR THE EXPENSE OF TOLLS WITHOUT REIMBURSEMENT. ONLY IF IT WERE ESTABLISHED THAT YOU WOULD HAVE CHOSEN TO TRAVEL BY COMMON CARRIER UPON NOTICE THAT TOLLS WERE NOT AUTHORIZED--A TENUOUS PROPOSITION AT BEST--MIGHT IT BE REASONABLY CONTENDED THAT THE ERROR IN QUESTION HAS OPERATED TO YOUR DETRIMENT.

UNDER THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.