B-179696, MAR 18, 1974

B-179696, MAR 18, 1974

EMPLOYEE PURCHASED ROUND TRIP TICKET FOR PERFORMANCE OF TEMPORARY DUTY AND WAS ALLOWED PREFERRED RATE IF HE USED THE SAME CARRIER FOR ENTIRE TRIP. HE IS NOT ENTITLED TO REIMBURSEMENT OF ADDITIONAL EXPENSE RESULTING FROM CHANGING CARRIERS ON RETURN TRIP IN VIEW OF SECTION 3.4 OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. ALSO, FAILURE OF RESPONSIBLE OFFICERS TO INFORM EMPLOYEE OF REGULATIONS CANNOT FORM BASIS OF LIABILITY OF THE UNITED STATES FOR ADDITIONAL PAYMENT, SINCE IT IS ESTABLISHED RULE OF LAW THAT ABSENT SPECIFIC STATUTORY AUTHORITY, UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTS OF ITS EMPLOYEES.

TO CLAIMS DIVISION OF GENERAL ACCOUNTING OFFICE:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE Z-2512895, AUGUST 6, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF THE UNITED STATES GENERAL ACCOUNTING OFFICE, DISALLOWING THE CLAIM OF MR. JAMES F. BRESSON, AN EMPLOYEE OF THE UNITED STATES ATOMIC ENERGY COMMISSION, FOR ADDITIONAL TRAVEL EXPENSES IN THE AMOUNT OF $8.

MR. BRESSON'S CLAIM AROSE AS A RESULT OF A TEMPORARY DUTY ASSIGNMENT WHICH HE WAS DIRECTED TO PERFORM IN DENVER, COLORADO, DURING FEBRUARY 1973. HE PURCHASED A ROUND-TRIP TICKET FROM ALBUQUERQUE, NEW MEXICO, HIS OFFICIAL DUTY STATION, TO DENVER. A PREFERRED ROUND-TRIP RATE WAS OFFERED TO GOVERNMENT TRAVELERS BY FRONTIER AIRLINES AND CONTINENTAL AIRLINES, BUT THE PREFERRED RATE WAS VALID ONLY WHEN THE TRAVELER USED THE SAME CARRIER FOR THE ENTIRE ROUND TRIP. IN THE INSTANT CASE MR. BRESSON TRAVELED TO DENVER ON FRONTIER BUT RETURNED TO ALBUQUERQUE ON CONTINENTAL DUE TO THE AVAILABILITY OF AN EARLIER DEPARTURE FLIGHT AND THE FORECAST OF INCLEMENT WEATHER. SINCE CONTINENTAL WOULD NOT HONOR THE PREFERRED RATE UNLESS ITS PLANES WERE USED ON THE ENTIRE ROUND TRIP MR. BRESSON HAD TO PAY AN ADDITIONAL $8 INCIDENT TO THE CHANGE OF CARRIERS. HIS CLAIM FOR THE ADDITIONAL PAYMENT WAS DISALLOWED BY THE TRANSPORTATION AND CLAIMS DIVISION IN VIEW OF THE PROVISIONS OF SECTION 3.4C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

MR. BRESSON REQUESTED RECONSIDERATION ON THE GROUNDS THAT NEITHER HE NOR HIS SUPERVISORS WERE AWARE OF THE TERMS AND CONDITIONS UNDER WHICH THE PREFERRED RATE WAS EXTENDED TO TRAVELERS AND THAT THE FINANCE DIVISION OF HIS OFFICE FAILED TO PROPERLY INFORM HIM OF THE RULES INVOLVED.

SECTION 3.4 PROVIDES IN PERTINENT PART AS FOLLOWS:

"B. REDUCED RATES. (1) USE OF SPECIAL LOWER FARES. THROUGH FARES, SPECIAL FARES, COMMUTATION FARES, EXCURSION, AND REDUCED-RATE ROUND TRIP FARES SHOULD BE UTILIZED FOR OFFICIAL TRAVEL WHEN IT CAN BE DETERMINED PRIOR TO THE START OF A TRIP THAT ANY SUCH TYPE OF SERVICE IS PRACTICAL AND ECONOMICAL TO THE GOVERNMENT. ROUND TRIP TICKETS SHOULD BE SECURED ONLY WHEN, ON THE BASIS OF THE JOURNEY AS PLANNED, IT IS KNOWN OR CAN BE REASONABLY ANTICIPATED THAT SUCH TICKETS WILL BE UTILIZED.

"C. UNEQUAL FARES AVAILABLE. WHEN COMMON CARRIERS FURNISH THE SAME METHOD OF TRAVEL AT DIFFERENT FARES BETWEEN THE SAME POINTS FOR THE SAME TYPE OF ACCOMMODATIONS, THE LOWEST COST SERVICE SHOULD BE USED UNLESS USE OF A HIGHER COST SERVICE IS ADMINISTRATIVELY DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT."

THE EMPLOYING AGENCY REPORTED THAT MR. BRESSON COULD HAVE TAKEN A FRONTIER PLANE FROM DENVER AT 5:45 P.M., FEBRUARY 12, 1971, INSTEAD OF THE CONTINENTAL PLANE AT 5 P.M. IT ALSO HELD THAT THE 45-MINUTE EARLIER DEPARTURE DID NOT APPEAR TO JUSTIFY THE USE OF THE HIGHER COST EARLIER SERVICE. SINCE THE AGENCY HAS NOT MADE A DETERMINATION THAT THE USE OF THE HIGHER COST SERVICE WAS JUSTIFIED, AS REQUIRED BY THE REGULATIONS CITED, THERE IS NO BASIS FOR PAYMENT OF THE ADDITIONAL AMOUNT CLAIMED. THAT REGARD IT IS POINTED OUT THAT THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ARE STATUTORY IN NATURE AND THEY HAVE THE FORCE AND EFFECT OF LAW. THEREFORE, NEITHER THE GENERAL ACCOUNTING OFFICE NOR AN EXECUTIVE AGENCY MAY WAIVE THEM.

ALTHOUGH THE FINANCE DIVISION OF MR. BRESSON'S OFFICE MAY HAVE FAILED TO PROPERLY INFORM HIM OF THE REGULATIONS INVOLVED AND THE TERMS OF THE PREFERRED RATE, SUCH FAILURE DOES NOT FORM A BASIS FOR LIABILITY OF THE UNITED STATES FOR PAYMENT OF THE ADDITIONAL $8. IT IS A WELL ESTABLISHED RULE OF LAW THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ROBERTSON V SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942), 44 ID. 469 (1965).

UPON RECONSIDERATION THE SETTLEMENT OF AUGUST 6, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION DISALLOWING MR. BRESSON'S CLAIM IS AFFIRMED.