# In the Matter of MATTHEW J. KLAGES

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URL: https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A1ea9a333e80a3b00

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

November 17, 2015

CBCA 4942-TRAV

In the Matter of MATTHEW J. KLAGES
and MATTHEW J. WALDRON

Matthew J. Klages, Dana Point, CA, and Matthew J. Waldron, Los Angeles, CA,
Claimants.
James E. Hicks, Office of Chief Counsel, Drug Enforcement Administration,
Department of Justice, Springfield, VA, appearing for Department of Justice.
LESTER, Board Judge.
It appears that, during the eighteen-year period from mid-1996 (when the General
Services Board of Contract Appeals (GSBCA), one of our predecessor boards, was delegated
authority to decide travel and relocation claims) to mid-2014, six federal employees filed
claims with the GSBCA (or this Board) seeking review of travel reimbursement denials
resulting from alleged violations of the Fly America Act, 49 U.S.C. § 40118 (2012).1 In the
eleven-month period from September 2014 to August 2015, employees from a single agency
– the Drug Enforcement Administration (DEA) – came fairly close to meeting that number,
with four DEA employees having filed claims during those eleven months alleging that they

1

See Stuart Jones, CBCA 3631-TRAV, 14-1 BCA ¶ 35,583; Token D. Barnthouse,
CBCA 1625-RELO, 10-1 BCA ¶ 34,353; James L. Landis, GSBCA 16684-RELO, 06-1 BCA
¶ 33,225; Maynard A. Satsky, GSBCA 16632-RELO, 05-2 BCA ¶ 33,042; Catherine L.
Haddow, GSBCA 16240-TRAV, 04-2 BCA ¶ 32,693; Desiree Fray, GSBCA 15012-TRAV,
99-2 BCA ¶ 30,485.

CBCA 4942-TRAV

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unknowingly had violated the Fly America Act by booking overseas air travel on a foreign
air carrier rather than a United States flag air carrier. Each of the DEA employees alleged
that, when they were making travel arrangements, DEA’s travel system did not warn them
that the flights that they were booking would not be eligible for reimbursement because the
flights did not comply with that statute.
We previously denied the first two recent DEA employee claims that we considered
because we have no authority to disregard the requirements of the Fly America Act. See Ivan
J. Rios-Gonzales, CBCA 4821-TRAV, 15-1 BCA ¶ 36,124, at 176,346-49; Danielle M.
Claude, CBCA 4134-TRAV, 15-1 BCA ¶ 35,827, at 175,185-86 (2014). We now have
before us the third and fourth DEA employee claims, and we similarly have no choice but
to deny them. Nevertheless, given the historical rarity of employee claims involving Fly
America Act violations, we are concerned that DEA may have created a travel reservation
system – a system that DEA employees are required to use – that lulls employees into
believing that they have complied with all statutory requirements for official travel when the
opposite is true. Although we cannot compensate the two DEA employees whose claims are
pending before us, we hope that DEA will review its travel reservation procedures in an
effort to assist its employees in minimizing the likelihood of future Fly America Act
violations.
Background
As requested by the DEA Special Operations Division, DEA issued official travel
orders for Special Agents (SAs) Matthew J. Klages and Matthew J. Waldron to travel from
DEA’s Los Angeles Field Office to San Jose, Costa Rica, from June 1 to 5, 2015. Neither
SA Klages nor SA Waldron had previously been on official travel to a foreign destination
for DEA. Having to book their own flights to Costa Rica, they selected the most cost
effective and economical airfare that they could find, which included a return flight from
Costa Rica to Los Angeles on Avianca Airlines. Although Avianca Airlines is one of United
Airlines’ code-share partners, Avianca Airlines itself is the national airline of Colombia and
is not a United States flag air carrier, and no United States flag air carrier had any code-share
seats on the flight on which SAs Klages and Waldron traveled.2 The claimants’ supervisory

2

“Code-sharing arrangements, which are practices under which U.S.-flag carriers
routinely lease space on foreign aircraft, rather than schedule their own flights, have been
deemed to be in compliance with the Fly America Act, such that passengers may properly use
tickets paid for by the Government under a code-share arrangement if the tickets were
purchased from the U.S.-flag carrier.” Landis, 06-1 BCA at 164,645. Although SAs Klages
and Waldron indicate in their claims that Avianca Airlines had a United States flag

CBCA 4942-TRAV

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SA has informed us that at no time during any stage of the booking process were SAs Klages
and Waldron alerted that the use of a foreign air carrier flight might violate the Fly America
Act or that a waiver was required for use of a non-United States flag air carrier. The
supervisory SA has also informed us that no “Out of Policy” symbol was triggered when SAs
Klages and Waldron were selecting the return flight on Avianca Airlines to notify them of
any problem with the reservation.
On June 25, 2015, two-and-a-half weeks after their return, SAs Klages and Waldron
were informed by DEA’s Get There Travel Helpdesk that their return flight violated the
requirements of the Fly America Act because Avianca Airlines is a foreign flag air carrier.
DEA ultimately denied $497.31 of each employee’s air travel reimbursement claim as the
unrecoverable cost of the non-compliant foreign carrier airfare.3 SAs Klages and Waldron
requested a waiver of the Fly America Act requirements, but, on July 23, 2015, DEA’s Office
of Finance denied the waiver request, finding that none of the regulatory exceptions to the
requirement to use only United States flag air carriers set forth in the Federal Travel
Regulation (FTR), 41 CFR 301-10.135 to -10.143 (2015), applied.
On August 20, 2015, SAs Klages and Waldron submitted their claims to the Board,
asking us to review DEA’s decision. DEA responded on September 24, 2015, and SAs
Klages and Waldron subsequently elected not to file a reply.
Discussion
In our recent decision in Rios-Gonzales, we discussed in detail the purposes behind
and the history of enforcement of the Fly America Act, which was originally enacted in 1974.
See Pub. L. No. 93-623, § 5(a), 88 Stat. 2102, 2104 (1975). As we stated in Rios-Gonzales,
“[t]he purpose behind section 5 of the [Act] [was] to counterbalance the advantages many
foreign airlines enjoy by virtue of financial involvement and preferential treatment by their
respective governments.” Rios-Gonzales, 15-1 BCA at 176,347 (quoting Fly America
Act – Revision of Joint Travel Regulations, 57 Comp. Gen. 546, 547 (1978)). “[T]he clear
intent of Congress,” we recognized, “was for United States Government-financed foreign air
code-share partner, that fact is irrelevant here because there was no code-sharing
arrangement for the flight on which they traveled and because the claimants did not purchase
their tickets through the United States flag code-share partner.
3

DEA has informed us that, if SAs Klages and Waldron each submit supplemental
travel vouchers for $33.30, they will each be entitled to an additional payment in that amount,
leaving only $464.01 disallowed and unpaid. We assume that DEA will follow through upon
this representation if the claimants submit the requested supplemental travel vouchers.

CBCA 4942-TRAV

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transportation to be accomplished by certificated United States air carriers to the greatest
extent possible.” Id. Pursuant to the implementation of this requirement in the FTR,
“[a]nyone whose air travel is financed by U.S. Government funds” is “required to use a U.S.
flag air carrier” unless one of the regulatory exceptions at 41 CFR 301-10.135, .136, or .137
applies, exceptions that generally relate to the unavailability of United States flag carriers to
or from a specific location. Rios-Gonzales, 15-1 BCA at 176,347 (citing 41 CFR
301-10.132).
Here, there is nothing in the record to indicate that any of the regulatory exceptions
applies to the claimants’ travel. Instead, it appears that the claimants simply were unaware
of the requirement to fly only on a United States flag air carrier and that, as they were making
their flight arrangements, no one told them about the statute or that they were doing anything
in violation of its requirements. “It makes no difference whether a traveler was ‘unaware of
the provisions of the Fly America Act’ when he used a foreign air carrier.” Rios-Gonzales,
15-1 BCA at 176,347-48 (quoting George K. Wilcox, B-256736 (July 8, 1994)). Because the
requirement is created by statute, all individuals are charged with notice of it and must
comply with it:
“[B]ecause the requirement for use of United States flag carriers is imposed
directly by statute, all persons are charged with notice of it.” Token D.
Barnthouse, CBCA 1625-RELO, 10-1 BCA ¶ 34,353, at 169,642; see Jasinder
S. Jaspal, 60 Comp. Gen. 718, 720 (1981) (discussing same). As a result, “and
because Government funds may not be used to pay for unnecessary travel by
foreign air carrier, . . . the traveler is personally liable for any costs incurred
because of his failure to comply with this requirement.” Jaspal, 60 Comp.
Gen. at 720; see Barnthouse, 10-1 BCA at 169,642-43. The traveler “is not
relieved of this responsibility merely because he relied upon the advice or
assistance of others in arranging his travel.” Jaspal, 60 Comp. Gen. at 720.
Id. at 176,348. “[W]e are not authorized to waive the provisions of the Act,” and we cannot
order reimbursement of travel costs incurred in violation of it. Id. (quoting Wilcox).
The claimants’ supervisor has informed us that, when SAs Klages and Waldron were
booking their flights, there was no warning on DEA’s travel reservation website that the
flights did not comply with mandatory statutory requirements. In response, DEA informs us
that it makes its employees aware of the Fly America Act requirements through references
on pages 31 and 32 of its Temporary Duty Travel Policy Handbook; through a discussion in
the December 14, 2014, edition of DEA Travel News; and through two pages of a
PowerPoint document on a training website that discusses the requirement. We are not aware
of any mandatory requirement that, in addition to this guidance, DEA create a travel

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reservation system that warns employees of potential Fly America Act violations. Because,
by law, all individuals are charged with notice of statutory requirements, Barnthouse, 10-1
BCA at 169,642, we are required to impose that constructive knowledge upon SAs Klages
and Waldron. A lack of notice, or even erroneous advice, from an agency to its employees
during the travel reservation process about the Fly America Act’s requirements does not
change the fact that the applicable statute and its implementing regulations “do not permit
reimbursement for tickets issued on non-U.S.-flag carriers.” Mark Alden, CBCA
4055-TRAV, 15-1 BCA ¶ 35,852, at 175,309 (2014). Agencies lack authority to disregard
mandatory statutory and regulatory requirements. Kenneth T. Donahoe, CBCA 3619-RELO,
14-1 BCA ¶ 35,746, at 174,937; William T. Orders, GSBCA 16095-RELO, 03-2 BCA ¶
32,389, at 160,290.
Nevertheless, the number of Fly America Act claims that DEA employees have
recently submitted should raise red flags within DEA that something is missing in its training
process and travel reservation system. The claimants here were novices in foreign official
travel, and, if their allegations (which are consistent with the allegations in Rios-Gonzales
and Claude) are true, they were left on their own to digest a large number of travel
requirements and restrictions without any guidance from those with actual expertise in
federal travel rules. We encourage DEA to take a serious look at its travel reservation system
to identify ways to improve the agency’s ability to assist in protecting its employees from
inadvertent Fly America Act violations in the future.
Decision
For the foregoing reasons, the claims from SAs Klages and Waldron are denied.

______________________________
HAROLD D. LESTER, JR.
Board Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A1ea9a333e80a3b00. Public record. Not legal advice.