B-129398, DECEMBER 4, 1956, 36 COMP. GEN. 450

B-129398, DECEMBER 4, 1956, 36 COMP. GEN. 450

MARSHALS - MILEAGE - USE OF PRIVATELY-OWNED AUTOMOBILES - DUTY EN ROUTE FROM RESIDENCE TO HEADQUARTERS UNITED STATES MARSHALS WHO TRAVEL BY PRIVATELY-OWNED AUTOMOBILE FROM THEIR RESIDENCES TO THEIR HEADQUARTERS FOR DUTY ARE REQUIRED TO BEAR THE EXPENSES OF TRAVEL REGARDLESS OF WHETHER THE TRAVEL INVOLVES REGULAR, OVERTIME OR CALL-BACK DUTY AND REGARDLESS OF WHETHER FOR PERSONAL CONVENIENCE THE MARSHAL MAINTAINS TWO RESIDENCES WITHIN AND OUTSIDE OF THE CITY LIMITS OF THE HEADQUARTERS. A UNITED STATES MARSHAL WHO PERFORMS TEMPORARY DUTY EN ROUTE BY PRIVATELY -OWNED AUTOMOBILE FROM HIS RESIDENCE TO HIS HEADQUARTERS WHERE HE PERFORMS DUTY MAY NOT HAVE SUCH TRAVEL CONSIDERED AS ON OFFICIAL BUSINESS AND IS ENTITLED ONLY TO MILEAGE IN EXCESS OF THAT NORMALLY TRAVELED BETWEEN RESIDENCE AND HEADQUARTERS. A UNITED STATES MARSHAL WHO PERFORMS TEMPORARY DUTY TRAVEL BY PRIVATELY- OWNED AUTOMOBILE ON EITHER A WORKDAY OR NONWORKDAY WITHOUT REPORTING TO HEADQUARTERS IS ENTITLED TO MILEAGE WITH DEDUCTION FOR TRAVEL FROM HIS RESIDENCE TO HIS TEMPORARY DUTY STATION AND RETURN.

TO THE ATTORNEY GENERAL, DECEMBER 4, 1956:

REFERENCE IS MADE TO THE LETTERS OF SEPTEMBER 28 AND NOVEMBER 13, 1956 (FILE A3) AND ENCLOSURES FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, MR. ANDRETTA, REQUESTING OUR DECISION AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO CERTAIN PROPOSED RULES TO BE ESTABLISHED BY THE DEPARTMENT GOVERNING THE PAYMENT OF MILEAGE TO U.S. MARSHALS AND MEMBERS OF THEIR STAFFS FOR TRAVEL BY PERSONALLY OWNED AUTOMOBILES AND ASKING FOR ANY SUGGESTIONS OR ALTERNATIVE APPROACH TO THE PROBLEM THAT WE MAY CARE TO MAKE.

MR. ANDRETTA SAYS MARSHALS AND THEIR DEPUTIES, FOR CONVENIENCE HEREINAFTER REFERRED TO AS MARSHALS, MUST SERVE PROCESS IN ALL DIRECTIONS FROM THEIR HEADQUARTERS. MANY TIMES FOR OFFICIAL REASONS TRAVEL STARTS FROM THE HOME OUTSIDE THE METROPOLITAN AREA, OFTEN MANY MILES AWAY FROM THE HEADQUARTERS OFFICE. SOMETIMES TRAVEL MUST BE MADE FIRST TO A JAIL SOME DISTANCE FROM THE HEADQUARTERS FOR THE PURPOSE OF BRINGING THE PRISONER TO THE HEADQUARTERS BUILDING FOR TRIAL. MOST MARSHALS' OFFICES ARE IN THE BUILDING IN WHICH COURTS ARE HELD.

HE ALSO SAYS THAT THE RULE STATED IN OUR DECISION OF DECEMBER 3, 1954, B- 120712, WHICH AFFIRMS 22 COMP. GEN. 572, THAT A MARSHAL WHO PERFORMS OFFICIAL DUTY EN ROUTE BETWEEN HIS HEADQUARTERS AND PLACE OF RESIDENCE IS ENTITLED ONLY TO THE MILEAGE IN EXCESS OF THAT NORMALLY TRAVELED IN REPORTING TO AND RETURNING FROM HIS HEADQUARTERS DOES NOT APPEAR TO BE IN LINE WITH SECTION 3.5-B (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH PERMITS THE PAYMENT OF MILEAGE TO EMPLOYEES WHEN ENGAGED ON OFFICIAL BUSINESS WITHIN OR OUTSIDE THEIR DESIGNATED POSTS OF DUTY FROM WHATEVER POINT THEY BEGIN THE JOURNEY. FURTHER, HE POINTS OUT THAT NO WELL-DEFINED DISTINCTION HAS BEEN FOUND BETWEEN THEM.

MR. ANDRETTA SAYS YOUR DEPARTMENT IS VERY MUCH INTERESTED IN ENDEAVORING TO FORMULATE A STATEMENT RECONCILING WHAT IS REGARDED BY SOME AS A CONTRADICTION BETWEEN SECTION 3.5-B (1) AND THE "EXCESS MILEAGE RULE.' THE PROPOSAL WOULD OUTLINE A SET OF RULES DISTINGUISHING BETWEEN THE TWO AND SERVING AS A BASIS FOR SETTLING THE NUMEROUS QUESTIONS WHICH COME UP IN THE MARSHAL'S SERVICE.

THESE RULES WOULD APPLY IN CASES WHERE (1) THE INDIVIDUAL DOES NOT LIVE WITHIN THE CITY LIMITS OF HIS HEADQUARTERS, (2) THE USE OF THE PERSONALLY OWNED AUTOMOBILE IS ESSENTIAL TO HIS WORK AND (3) THAT TRAVEL IS A MAJOR FACTOR IN PERFORMANCE OF HIS DUTIES. IT IS PROPOSED TO DIVIDE ALL SUCH TRAVEL INTO TWO GROUPS, LOCAL AND NONLOCAL. LOCAL TRAVEL WOULD BE DEFINED AS THE NORMAL DAY-TO-DAY TRAVEL BETWEEN HOME, HEADQUARTERS, AND VICINITY IN CARRYING OUT ASSIGNMENTS. NONLOCAL TRAVEL WOULD BE THE MORE EXTENDED TYPE WHICH INVOLVES GREATER DISTANCES AND IS NOT THE USUAL DAY-TO-DAY TYPE WORK, SUCH AS REMOVALS TO OTHER DISTRICTS, TRANSPORTATION OF PRISONERS TO PENAL INSTITUTIONS, ETC. UNDER LOCAL TRAVEL THE DEPARTMENT WOULD PROPOSE TWO GROUPS, THE FIRST DEALING WITH TRAVEL IN THE PERFORMANCE OF ASSIGNMENTS, DEDUCTING THEREFROM ONE ROUND TRIP FROM HOME TO HEADQUARTERS FOR EACH DAY OR WEEKEND ACCORDING TO THE TRAVELER'S PRACTICE IN RETURNING TO HIS HOME. THE SECOND GROUP WOULD DEAL WITH TRAVEL ON NONWORKDAYS, FOR WHICH MILEAGE WOULD BE ALLOWED FOR ALL TRAVEL THAT WOULD HAVE BEEN NECESSARY HAD THE TRAVELER LIVED WITHIN THE CITY LIMITS OF HIS HEADQUARTERS, AND FOR THIS PURPOSE MILEAGE WOULD BE COMPUTED FROM THE HEADQUARTERS BUILDING. NO CONSTRUCTIVE MILEAGE WOULD BE ALLOWED, THAT IS, ASSUMING THE MARSHAL LIVED 20 MILES FROM THE HEADQUARTERS CITY AND THE APPROVED JAIL TO WHICH HE PROCEEDS ON OFFICIAL DUTY WAS ONLY 2 MILES FROM HIS HOME IN A DIRECT LINE BETWEEN THE TWO, UNDER THIS RULE 2 MILES TRAVEL EACH WAY WOULD BE ALLOWED AND NOT THE 18 MILES FROM THE HEADQUARTERS CITY. ON NONLOCAL TRAVEL IT IS PROPOSED TO ALLOW MILEAGE FOR ALL DISTANCE TRAVELED WITH NON DEDUCTIONS FOR DISTANCE FROM HOME TO HEADQUARTERS, SINCE, AS THE DEPARTMENT VIEWS THE MATTER, THE DISTINCTION BETWEEN THE 3.5 -B (1) RULE AND THE EXCESS MILEAGE RULE IS LARGELY THE DISTINCTION BETWEEN EXTENDED TRAVEL AS CONTRASTED WITH DAY TO-DAY LOCAL TRAVEL.

ALSO, IT APPEARS FROM THE PROPOSED OUTLINE THAT WHEN A MARSHAL LIVES WITHIN THE LIMITS OF HIS HEADQUARTERS CITY THE DEPARTMENT WOULD ALLOW MILEAGE FOR A DISTANCE TRAVELED WITHOUT REGARD TO THE EXCESS MILEAGE RULE AND WITHOUT DISTINCTION BETWEEN LOCAL AND NONLOCAL TRAVEL WHETHER PERFORMED ON WORKDAYS, NONWORKDAYS, BEFORE OR AFTER USUAL HOURS, AND CALL- BACK OCCASIONS.

THE ADMINISTRATION ASSISTANT ATTORNEY GENERAL ALSO TRANSMITTED COPIES OF LETTERS RECEIVED BY HIM FROM UNITED STATES MARSHALS REQUESTING ADVICE AS TO WHETHER THE MILEAGE BETWEEN RESIDENCE AND HEADQUARTERS IS REQUIRED TO BE DEDUCTED IN THE FOLLOWING SITUATIONS, AS CONSOLIDATED AND RENUMBERED BY US:

1. MARSHAL RESIDING OUTSIDE HIS HEADQUARTERS CITY PERFORMED OFFICIAL TRAVEL EN ROUTE FROM HEADQUARTERS TO HIS RESIDENCE ON A USUAL WORKING DAY.

2. MARSHAL MAINTAINING HOME OUTSIDE HIS HEADQUARTERS CITY, WHO RESIDED AT HEADQUARTERS CITY DURING WEEKDAYS, TRAVELED FROM HEADQUARTERS TO HOME DURING REGULAR WORKING HOURS ON A WEEKDAY ( WEDNESDAY) AND THE NEXT DAY PERFORMED TRAVEL BY NECESSARY CIRCUITOUS ROUTING EN ROUTE TO HEADQUARTERS DURING USUAL WORKING HOURS.

3. MARSHAL WITH HOME WHICH WAS OUTSIDE HIS HEADQUARTERS AND ON A DIRECT ROUTE BETWEEN HEADQUARTERS AND A TEMPORARY DUTY STATION, ON A SATURDAY, PERFORMED TRAVEL FROM HIS HOME TO THE TEMPORARY DUTY STATION, THENCE TO HIS RESIDENCE CITY FOR FURTHER TEMPORARY DUTY, THENCE TO HEADQUARTERS CITY FOR DUTY AND THEN RETURNED HOME.

4. MARSHAL ON A WORK OR NONWORKDAY PERFORMED TEMPORARY DUTY TRAVEL WITHOUT REPORTING TO HEADQUARTERS.

THE RULE IS WELL ESTABLISHED THAT AN EMPLOYEE MUST BEAR THE COST OF TRANSPORTATION BETWEEN HIS PLACE OF RESIDENCE AND HIS PLACE OF DUTY AT HIS OFFICIAL STATION. 11 COMP. GEN. 417; 15 ID. 342; 19 ID. 836. THE FACT THAT SUCH EXPENSES MAY BE INCREASED BY EMERGENCY CONDITIONS OR THE PERFORMANCE OF OVERTIME WORK DOES NOT CHANGE THE RULE. 16 COMP. GEN. 64; ID. 1; B-117159, OCTOBER 20, 1953. THE RULE IS FOR APPLICATION REGARDLESS OF THE FACT THAT THE EMPLOYEE RESIDES OUTSIDE THE HEADQUARTERS CITY AND REGARDLESS OF WHETHER REGULAR, OVERTIME, OR CALL BACK OVERTIME DUTY IS PERFORMED. B-128764, AUGUST 27, 1956. THUS, AS SUCH EXPENSES ARE PERSONAL TO THE EMPLOYEE, THEY MAY NOT BE CONSIDERED AS INCURRED IN OFFICIAL TRAVEL. CONSEQUENTLY, EVEN THOUGH THE ADDITIONAL TRAVEL REQUIRED BY THE PERFORMANCE OF OFFICIAL DUTY EN ROUTE BETWEEN RESIDENCE AND HEADQUARTERS MAY BE CONSIDERED OFFICIAL TRAVEL, THE DISTANCE NORMALLY TRAVELED IN REPORTING TO AND RETURNING FROM DUTY AT HEADQUARTERS MAY NOT BE CONSIDERED AS TRAVEL ON OFFICIAL BUSINESS. FURTHERMORE, THE FACT THAT TRAVEL INVOLVES RELATIVELY LARGE DISTANCES WOULD NOT SERVE TO CHANGE THE NATURE OF THAT PORTION OF THE TRAVEL WHICH IS PERSONAL TO THE EMPLOYEE.

SECTION 3.5-B (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS APPLICABLE TO CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS AS DEFINED IN SECTION 2, TRAVEL EXPENSE ACT OF 1949, 5 U.S.C. 835; AND SECTION 504.01 AND 504.04, UNITED STATES MARSHALS MANUAL, PERMITS THE PAYMENT OF MILEAGE FOR TRAVEL PERFORMED "ON OFFICIAL BUSINESS" FROM WHATEVER POINT AN EMPLOYEE BEGINS HIS JOURNEY. UNDER SUCH REGULATIONS AN EMPLOYEE WHO DOES NOT PERFORM DUTY AT HIS HEADQUARTERS STATION MAY BE ADMINISTRATIVELY ALLOWED MILEAGE FOR TRAVEL BETWEEN HIS RESIDENCE AND TEMPORARY DUTY STATION WITHOUT DEDUCTION FOR THE TRAVEL WHICH THE EMPLOYEE NORMALLY WOULD BE REQUIRED TO PERFORM IN REPORTING FROM HIS RESIDENCE TO OFFICIAL STATION. 32 COMP. GEN. 235. THE REGULATIONS ALSO PERMIT THE PAYMENT OF MILEAGE WITHOUT THE DEDUCTION TO AN EMPLOYEE WHO, WHILE EN ROUTE FROM HIS RESIDENCE TO A TEMPORARY DUTY STATION, CHANGES HIS MEANS OF TRANSPORTATION AND ACQUIRES EQUIPMENT AT HIS HEADQUARTERS BUT DOES NOT PERFORM DUTY THERE. 34 COMP. GEN. 248. HOWEVER, AS INDICATED ABOVE, AN EMPLOYEE WHO PERFORMS TEMPORARY DUTY EN ROUTE BETWEEN RESIDENCE AND HEADQUARTERS AND WHO ACTUALLY ALSO PERFORMS DUTY AT HIS HEADQUARTERS THAT DAY IS ENTITLED ONLY TO THE MILEAGE IN EXCESS OF THAT NORMALLY TRAVELED BETWEEN SUCH POINTS, SINCE THEN THE TRAVEL BETWEEN RESIDENCE AND HEADQUARTERS MAY NOT BE CONSIDERED AS ON OFFICIAL BUSINESS WITHIN THE PURVIEW OF SECTIONS 3.5-B (1), 504.01, AND 504.04. B-124671, NOVEMBER 28, 1955.

TO SUMMARIZE, WE CONCLUDE THAT UNDER PRESENT LAW AND REGULATIONS THE RULE REQUIRING THE EMPLOYEE TO BEAR THE EXPENSE OF TRAVEL BETWEEN HEADQUARTERS OFFICE AND RESIDENCE IS FOR APPLICATION IN ALL SITUATIONS WHERE A MARSHAL TRAVELS BETWEEN RESIDENCE AND REGULAR PLACE OF DUTY AT HEADQUARTERS FOR DUTY THEREAT, REGARDLESS OF WHETHER HE LIVES WITHIN OR OUTSIDE THE CITY LIMITS OF HIS HEADQUARTERS, WHETHER THE TRAVEL IS LOCAL OR NONLOCAL, WHETHER IT INVOLVES REGULAR, OVERTIME, OR CALL-BACK OVERTIME DUTY, AND REGARDLESS OF WHETHER FOR PERSONAL CONVENIENCE THE EMPLOYEE MAINTAINS TWO RESIDENCES. THEREFORE, WE ARE REQUIRED TO OBJECT TO THE DEPARTMENT'S PROPOSED RULES SO FAR AS THEY CONFLICT WITH THAT REQUIREMENT.

ACCORDINGLY, THE MILEAGE BETWEEN RESIDENCE AND HEADQUARTERS IS REQUIRED TO BE DEDUCTED IN EXAMPLES NOS. 1, 2, AND 3. THE DEDUCTION IS NOT REQUIRED TO BE MADE IN EXAMPLE NO. 4.