In the Matter of MICHAEL C. BIGGS

April 23, 2008

CBCA 928-TRAV

In the Matter of MICHAEL C. BIGGS

Michael C. Biggs, Sacramento, CA, Claimant.

Eric Colin Crane, Office of the Chief Counsel, United States Citizenship and

Immigration Services, Washington, DC, appearing for Department of Homeland Security.

HYATT, Board Judge.

Michael C. Biggs, claimant, has requested the Board’s review of a decision by his

agency, the United States Citizenship and Immigration Services (USCIS), to disallow his

claim for reimbursement of the expense of shipping his privately owned vehicle (POV) from

his permanent residence in the Washington, D.C., area to San Francisco, California, in

connection with a four-month temporary duty assignment.

Background

In November 2006, Mr. Biggs was employed in the USCIS Office of Policy and

Strategy in Washington, D.C. He volunteered to participate in a temporary duty (TDY)

assignment with the USCIS Office of Chief Counsel in San Francisco, California. The San

Francisco office was at that time experiencing a surge in litigation.

The assignment in San Francisco was authorized for four months with the possibility

of an extension. The Office of Chief Counsel’s administrative officer had responsibility for

initiating and approving travel requests for the Office of Chief Counsel. Mr. Biggs inquired

what manner of transportation he would be provided while on TDY and it was determined

that the shipment of his POV to San Francisco would represent a saving to the Government

given the length of time of the detail. Accordingly, the administrative officer instructed Mr.

Biggs to ship his POV to San Francisco for the assignment. Mr. Biggs’ initial voucher,

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which included the cost of shipping the vehicle to San Francisco, was approved and paid.

His final voucher, which included the cost of shipping the vehicle back to Washington,

D.C., upon completion of the assignment was challenged by the agency. The agency

explains that while it regrets the erroneous instruction given to Mr. Biggs, it has no authority

to ship a POV at Government expense in conjunction with an employee’s TDY assignment.

Discussion

This issue has been fully addressed in two decisions issued by the General Services

Administration Board of Contract Appeals (GSBCA), our predecessor in deciding federal

civilian employee travel and relocation claims. Patrick J. Truver, GSBCA 16514-TRAV,

05-1 BCA ¶ 32,854 (2004) ; Rebecca L. Kalamasz, GSBCA 15971-TRAV, 04-1 BCA

¶ 32,463 (2003). As explained in these cases, entitlements for reimbursement of travel and

transportation costs for federal employees are determined by statute and regulation for two

categories of travel: (1) temporary duty at a location away from the employee’s official post

of duty, see 5 U.S.C. §§ 5701-5706 (2000), and (2) relocation from one permanent post of

duty to another, see 5 U.S. C. §§ 5721-5729. The implementing regulations are set forth in

the Federal Travel Regulation (FTR).

Specifically, an agency may authorize reimbursement of the expenses of shipping a

POV in conjunction with a permanent change of station, but lacks similar authority for a

TDY assignment. As we have stated previously, the only exception is in the case of a

temporary change of station (TCS), which may be permitted in the case of a temporary duty

assignment that is contemplated to extend for a period of not less that six months and not

more than three years. Truver; Kalamasz. This exception does not appear to be applicable

here, since the initial term of TDY was only four months. Thus, under applicable rules and

decisional law, USCIS was not authorized to pay the cost of shipping Mr. Biggs’ POV to

his TDY location.

Claimant offers a number of rationales that he believes justify a departure from the

Truver and Kalamasz decisions. He starts with the argument that on January 5, 2007, the

GSBCA was dissolved and, on January 6, 2007, incorporated, along with a number of other

civilian agency boards, into the Civilian Board of Contract Appeals. He states that the

legislation providing for board consolidation did not preserve any binding or precedential

authority for prior decisions of the GSBCA. He further expresses the opinion that the new

civilian board has the authority to make equitable decisions in interpreting the travel

regulations.

Claimant is mistaken in his position that the CBCA may and should depart from the

body of precedent established by the GSBCA and decide travel and relocation cases

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differently than in the past. The GSBCA and, after January 5, 2007, this Board, were

authorized to hear these cases under a delegation of authority from the Administrator of

General Services pursuant to 31 U.S.C. § 3702(a)(3). That delegation did not change

substantively as a result of the consolidation. On January 18, 2007, the CBCA issued

Business Management Research Associates, Inc. v. General Services Administration, CBCA

464, 07-1 BCA ¶ 33,486, which held that holdings of predecessor boards shall be binding

as precedent in the CBCA. Although this decision addressed cases filed under the Contract

Disputes Act of 1978, 41 U.S.C. §§ 601-613 , the rationale that prior relevant decisions of

predecessor organizations should be followed by the CBCA applies to travel and relocation

claims as well. Moreover, the Board is charged only with interpreting and applying the

pertinent regulations; if a particular expense is simply not authorized by law, the Board has

no more authority than the agency to permit its reimbursement.

Claimant next urges that he is entitled to be reimbursed because he reasonably relied

on the actions and instructions of an official who he believed had more familiarity with

pertinent regulations than claimant had. This argument does not advance claimant’s cause.

The Board has consistently recognized that the Government is not bound by the erroneous

advice of its officials and that an employee’s reliance on such advice does not afford a basis

upon which relief may be granted to a claimant. E.g., Bruce Bryant, CBCA 901-RELO,

08-1 BCA ¶ 33,737(2007); Manuel S. Figueroa, CBCA 486-TRAV, 07-1 BCA ¶ 33,540.

Claimant further asserts that it was financially more advantageous to the Government

to ship his POV to the TDY station. He contends that the cost of a rental car for the duration

of his TDY would have been significantly more costly than the expense incurred in shipping

his POV. Nonetheless, the fact that an action is taken with the good intention to save the

Government money does not permit payment of an expense that is otherwise unauthorized.

See, e.g., Gene Kourtei, CBCA 793-RELO, 08-1 BCA ¶ 33,724(2007); James L. Landis,

GSBCA 16684-RELO, 06-1 BCA ¶ 33,225; Panfilo Marquez, GSBCA 15890-TRAV, 03-2

BCA ¶ 32,394; Lorna J. LaRoe-Barber, GSBCA 14890-TRAV, 99-2 BCA ¶ 30,484.

Similarly, claimant misapprehends the application of a constructive cost analysis to

determine the reimbursement due to an employee who uses a POV in connection with TDY.

41 CFR 301-10.309 (2006). That analysis is applicable when an employee chooses to

perform the travel necessary to proceed to the TDY destination by POV, rather than use the

authorized mode of transportation. See William T. Cowan, Jr., GSBCA 16525-TRAV, 05-1

BCA ¶ 32,906. Here, claimant was authorized to travel and did travel to San Francisco via

commercial air carrier. It would serve no purpose to perform a constructive cost analysis to

compare the cost of the commercial air fare with the cost of traveling to San Francisco by

POV, as the regulations contemplate.

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Finally, claimant cites a GSBCA decision for the proposition that once the

Government authorizes an expenditure it cannot revoke the authorization to the detriment

of the employee. This case, Jack W. Tucker, GSBCA 16929-TRAV, 06-2 BCA ¶ 33,432,

has no application to the claim at hand. In Tucker, the Board addressed the well-established

rule that if an agency authorizes expenses it has the discretion to approve, it cannot, after the

fact, revoke that approval once the expense has been incurred. This is distinctly different

from the present claim, which is governed by the principle that the Government cannot

approve reimbursement of an expense it had no authority to incur.

Decision

The claim is denied.

_________________________________

CATHERINE B. HYATT

Board Judge