B-180933, OCT 2, 1974

B-180933, OCT 2, 1974

HEADNOTES - UNAVALABLE CIVILIAN EMPLOYEES OF NAVY WHO USED LEASED AUTOMOBILES DURING TEMPORARY DUTY TRAVEL MAY NOT BE REIMBURSED COLLISION DAMAGE WAIVER COSTS WHERE REGULATIONS SPECIFICALLY PRECLUDE REIMBURSEMENT OF SUCH COSTS EVEN THOUGH ARRANGEMENTS FOR THE RENTAL OF THE AUTOMOBILES WERE MADE THROUGH THE TRAVEL CLERK OF THE ACTIVITY, SINCE ERRONEOUS ACTS OF EMPLOYEES MAY NOT BE USED AS THE BASIS FOR EXPANSION OF THE GOVERNMENT'S LIABILITY BEYOND THAT CREATED BY STATUTE OR REGULATION.

PIERRE JEAN A. PATRAN AND FRANK ZEBROWSKI - COLLISION DAMAGE WAIVER INSURANCE:

THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR AN ADVANCE DECISION SUBMITTED BY THE DISBURSING OFFICER, NAVAL AIR STATION, LAKEHURST, NEW JERSEY, INQUIRING WHETHER OR NOT TWO CIVILIAN EMPLOYEES MUST REIMBURSE THE GOVERNMENT FOR THE AMOUNT PAID FOR COLLISION DAMAGE WAIVER (CDW) AND PERSONAL ACCIDENT INSURANCE (PAI) OBTAINED WHEN AUTOMOBILES WERE LEASED DURING OFFICIAL TRAVEL.

BY TRAVEL ORDER NUMBER T #104-74, DATED JANUARY 2, 1974, MR. FRANK ZEBROWSKI WAS AUTHORIZED TO RENT AN AUTOMOBILE DURING TEMPORARY DUTY TRAVEL TO THE MARINE CORPS STATION, EL TORO, CALIFORNIA, FOR APPROXIMATELY 26 DAYS BEGINNING JANUARY 7, 1974. ON THE TRAVEL VOUCHER THAT HE SUBMITTED ON JANUARY 25, 1974, HE CLAIMED $238.80, THAT HE HAD PAID TO BUDGET RENT-A-CAR. ON REVIEW BY THE NAVY REGIONAL FINANCE CENTER, NORFOLK, VIRGINIA, $22.00 WAS DISALLOWED AS BEING REIMBURSEMENT FOR THE CDW.

BY TRAVEL ORDER T #112-74, PIERRE-JEAN A. PATRAN, WAS AUTHORIZED TO RENT AN AUTOMOBILE DURING TEMPORARY DUTY TRAVEL TO NORFOLK, VIRGINIA, FOR APPROXIMATELY 4 DAYS BEGINNING JANUARY 8, 1974. ON THE TRAVEL VOUCHER HE SUBMITTED UPON HIS RETURN, HE CLAIMED REVIEW BY THE NAVY REGIONAL FINANCE CENTER, NORFOLK, VIRGINIA, $12.00 WAS DISALLOWED, OF WHICH $8.00 WAS REIMBURSEMENT FOR CDW, AND $4.00 FOR PAI.

IT IS NOT DISPUTED THAT, IN BOTH CASES, ALL THE ARRANGEMENTS FOR LEASING THE VEHICLES WERE TAKEN CARE OF BY THE CIVILIAN EMPLOYEE THAT WAS IN CHARGE OF TRAVEL FOR THE ACTIVITY. IT IS STATED THAT THE INSURANCE WAS NOT REQUESTED BY THE TRAVELERS, BUT THAT A CLERICAL ERROR WAS MADE, ON THE PART OF THE CIVILIAN IN CHARGE OF TRAVEL FOR THE ACTIVITY, IN REQUESTING THE INSURANCE.

THE RULE PROHIBITING REIMBURSEMENT OF THE COST OF CDW IS FOUND IN SECTION 1-3.2.C OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1973, AND IS FURTHER IMPLEMENTED BY JOINT TRAVEL REGULATIONS (JTR), PARAGRAPH C6101-3, WHICH PROVIDES, IN PERTINENT PART:

"*** REIMBURSEMENT FOR THE COST OF PURCHASING EXTRA COLLISION INSURANCE (I.E. 'COLLISION DAMAGE WAIVER ADJUSTMENT') TO PROVIDE FULL COVERAGE COLLISION INSURANCE IN CONNECTION WITH RENTING AN AUTOMOBILE IS PROHIBITED

WITH REGARD TO PAI, FPMR 101-7, SECTION 1-1.3.B PROVIDES IN PERTINENT PART:

*** TRAVELING EXPENSES WHICH WILL BE REIMBURSED ARE CONFINED TO THOSE EXPENSES ESSENTIAL TO THE TRANSACTING OF THE OFFICIAL BUSINESS."

THIS PROVISION IS AMPLIFIED BY JTR PARAGRAPH C1054, WHICH STATES:

"THE PREMIUM COST OF ACCIDENT OR LIABILITY INSURANCE TAKEN OUT BY AN EMPLOYEE WHILE TRAVELING ON A TEMPORARY DUTY ASSIGNMENT IS NOT REIMBURSABLE."

SINCE THE STATUTORY REGULATIONS FOR CIVILIAN PERSONELL, AS WELL AS THE IMPLEMENTING REGULATIONS ISSUED BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE CONTAINED IN VOLUME 2 OF JTR, SPECIFICALLY PRECLUDE REIMBURSEMENT TO CIVILIAN EMPLOYEES FOR THE COST OF COLLISION DAMAGE INSURANCE, AS WELL AS PERSONAL ACCIDENT INSURANCE, INCIDENT TO THE RENTAL OF AN AUTOMOBILE, REIMBURSEMENT FOR THE COST OF SUCH INSURANCE MAY NOT BE ALLOWED.

AS TO THE STATEMENT THAT THE EMPLOYEES DID NOT REQUEST THE INSURANCE BUT IT WAS OBTAINED THROUGH A CLERICAL ERROR ON THE PART OF THE CIVILIAN IN CHARGE OF THE ADMINISTRATIVE OFFICE, IT MAY BE STATED THAT WHEN A GOVERNMENT EMPLOYEE ACTS OUTSIDE THE SCOPE OF THE AUTHORITY ACTUALLY HELD BY HIM, THE UNITED STATES IS NOT ESTOPPED TO DENY HIS UNAUTHORIZED OR MISLEADING REPRESENTATIONS, COMMITMENTS, OR ACTS, BECAUSE THOSE WHO DEAL WITH A GOVERNMENT AGENT, OFFICER, OR EMPLOYEE ARE DEEMED TO HAVE NOTICE OF THE LIMITATIONS ON HIS AUTHORITY, AND ALSO BECAUSE EVEN THOUGH A PRIVATE INDIVIDUAL MIGHT BE ESTOPPED. THE PUBLIC SHOULD NOT SUFFER FOR THE ACT OR REPRESENTATION OF A SINGLE GOVERNMENT AGENT. UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389 (1917); BIANCO V. UNITED STATES, 171 CT. CL. 719 (1965); BORNSTEIN V. UNITED STATES, 170 CT. CL. 576, 345 F. 2D 558 (1965); POTTER V. UNITED STATES, 167 CT. CL. 28 (1964), CERT. DENIED, 382 U.S. 817 (1965); VOGT BROS. MFG. CO. V. UNITED STATES, 160 CT. CL. 687 (1963); BYRNE ORGANIZATION INC. V. UNITED STATES, 152 CT. CL. 578, 287 F. 2D 582 (1961); NATIONAL ELECTRONICS LAB., INC. V. UNITED STATES, 148 CT. CL. 308 (1960). THE GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ADVICE GIVEN BY ONE OF KALINOWSKI V. UNITED STATES, 151 CT. CL. 172 (1960), CERT. DENIED, 368 U.S. 829 (1971). WHERE A GOVERNMENT OFFICIAL APPROVES AND PROMISES REIMBURSEMENT BEYOND THAT ALLOWED BY APPLICABLE LAW, ANY PAYMENTS MADE UNDER SUCH UNAUTHORIZED ACTIONS ARE RECOVERABLE BY THE GOVERNMENT. W. PENN HOROLOGICAL INST. V. UNITED STATES, 146 CT. CL. 540 (1959).

ACCORDINGLY, COLLECTION ACTION SHOULD BE TAKEN TO COLLECT FROM THE EMPLOYEES THE ERRONEOUS PAYMENTS. IN ANY CASE, ONLY COLLECTION OF OVERPAYMENTS OF PAY AND ALLOWANCES WHICH ARE NOT RELATED TO TRAVEL, TRANSPORTATION, OR RELOCATION EXPENSES MAY BE WAIVED UNDER AUTHORITY OF 5 U.S.C. 5584.