In the Matter of ROBERT A. CHERRY

August 19, 2014

CBCA 3878-TRAV

In the Matter of ROBERT A. CHERRY

Robert A. Cherry, Albuquerque, NM, Claimant.

Lake Begay, Supervisory Auditor, Office of Trust Review and Audit, Office of the

Special Trustee for American Indians, Department of the Interior, Albuquerque, NM,

appearing for Department of the Interior.

DANIELS, Board Judge (Chairman).

The Department of the Interior (DOI) directed employee Robert A. Cherry to travel

from Albuquerque, New Mexico, to Billings, Montana, on official business in June 2014.

The agency determined that the most advantageous method of travel for this trip was by

airline, with a rental car available for the employee’s use in and around Billings. Mr. Cherry

did not fly to Billings or use a rental car there; instead, he chose to drive his privately owned

vehicle (POV). The issue presented by this case is how much he should be reimbursed for

the expenses he incurred while on the trip.

Section 301-10.309 of the Federal Travel Regulation (FTR) establishes the general

rule for the circumstance which occurred here:

What will I be reimbursed if I am authorized to use common carrier

transportation and I use a POV instead?

You will be reimbursed on a mileage basis, plus per diem, not to exceed the

total constructive cost of the authorized method of common carrier

transportation plus per diem.

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41 CFR 301-10.309 (2013).

One of our predecessor boards, the General Services Board of Contract Appeals,

explained how this regulation should be applied:

The regulation requires an agency, when an employee chooses to travel in his

or her own vehicle rather than by the means of transportation most

advantageous to the Government, to calculate the employee’s travel costs in

two separate ways. First the agency should determine, through the standard

application of statute and regulation, the allowability of the various

components of an employee’s travel claim. . . .

Second, the agency should determine the total constructive cost of the

employee’s travel had he or she traveled by the method of transportation

deemed to be in the Government’s best interest. . . . . [C]onstructive costs are

by their very nature not costs which are actually incurred. Although these

costs, too, should be determined through application of statute and regulation,

the calculation necessarily will involve assumptions. As with the employee’s

travel costs determined in standard fashion to be allowable, the agency should

likewise calculate a total constructive cost.

After computing the two totals, the agency should compare them. If the total

of costs determined in standard fashion to be allowable is greater than the total

of the constructive costs, the agency should limit reimbursement to the latter

figure.

Peter C. Thurman, GSBCA 15562-TRAV, 01-2 BCA ¶ 31,516 (quoting Russell E. Yates,

GSBCA 15109-TRAV, 00-1 BCA ¶ 30,785). This Board follows this guidance. Alfonso

Diaz Del Castillo, CBCA 2250-TRAV (June 21, 2011); Daniel G. Shelton, CBCA

473-TRAV, 07-1 BCA ¶ 33,493.

DOI and Mr. Cherry have both attempted to follow this guidance as well. In

implementing it, however, they have different views on three matters:

–

Should the employee’s actual costs of traveling by POV be measured by using

the mileage rate prescribed for POVs or the lower mileage rate prescribed for

Government owned vehicles (GOVs)?

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–

Should the employee’s actual costs include lodging and a per diem allowance

for days when he was traveling by POV, but would not have been traveling if he had

gone to the assignment location by air?

–

Should the constructive cost of travel by air include the cost of a rental car and

gasoline which the employee would have needed to conduct his business at his

destination, had he traveled by air?

With regard to each of these matters, DOI has followed its Temporary Duty Travel

Policy, which was issued in March 2014. This Policy contains the following statements:

“The Bureau must apply . . . the . . . [l]ower [mileage] rate when the traveler . . . uses a POV

instead of an available GOV or chooses to use a POV as a personal preference.” “Per diem

is not authorized for any non-compensable days that are required to reach the TDY

[temporary duty] destination because the traveler chose to travel via POV.” “Do not include

the cost of a rental car in any of the cost estimates.”

Although we cannot fault the agency representative for her attentiveness to the

Temporary Duty Travel Policy, we agree with Mr. Cherry that as to the three matters in

dispute, that policy is not faithful to the FTR and therefore cannot govern his claim.

As we have explained many times, the FTR is a “legislative rule” – a

regulation issued under express authority from Congress, for the purpose of

affecting individual rights and obligations by filling gaps left by a statute, after

following the Administrative Procedure Act’s notice and comment provisions.

It therefore has controlling weight – the force of law – unless the provision in

question is arbitrary, capricious, or manifestly contrary to statute. Any agency

rule which is inconsistent with an FTR provision is consequently trumped by

the FTR and must give way.

Kevin D. Reynolds, CBCA 2201-RELO, 11-1 BCA ¶ 34,756 (citing numerous prior

decisions), motion for reconsideration dismissed, 11-2 BCA ¶ 34,793.

As to the first matter in dispute, which mileage rate should be used as the measure of

Mr. Cherry’s actual costs of transportation, we note that the FTR provides that the GOV

mileage rate should be the measure of costs of the use of a POV when an employee is

authorized to use a GOV but uses a POV instead. 41 CFR 301-10.310. This rule, the FTR

states, applies when determining the constructive cost of transportation when an employee

is authorized to travel by common carrier but chooses to travel by POV. Id. 301-10.309. The

DOI policy goes beyond the FTR rule by requiring the use of the GOV mileage rate in cost

comparisons regardless of whether a GOV is available. This extension of the rule is

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inconsistent with the FTR. The POV mileage rate “reflect[s] the current costs of operating

privately owned vehicles, including depreciation of original vehicle costs; gasoline and oil;

maintenance, accessories, parts, and tires; insurance; and state and federal taxes.” Glenn S.

Podonsky, GSBCA 14207-TRAV, 97-2 BCA ¶ 29,229; see 5 U.S.C. § 5707(b) (2012).

Unless a GOV is available and the employee chooses to use a POV instead, there is no

justification for using a rate which does not reflect these costs. DOI has provided no

evidence that it made a GOV available to Mr. Cherry for his trip to Billings, so it must use

the POV mileage rate in calculating his actual costs of transportation. Cf. Herbert H.

Galliart, CBCA 3242-TRAV, 13 BCA ¶ 35,294 (agency made GOV available).

The second matter in dispute is whether Mr. Cherry’s actual costs should include the

costs of lodging he incurred and the associated per diem allowance for the days in which he

was driving to and from Billings, but would not have been traveling had he flown to that

temporary duty location. These costs were actually incurred, regardless of whether the days

on which they were incurred were compensable work days. See 41 CFR 301-11.9 (per diem

entitlement starts when employee departs his home, office, or other authorized point and ends

on the day he returns to that point). While it is possible that Mr. Cherry drove on non-work

days (such as weekends) or days on which he took annual leave, the costs were incurred

nonetheless. They must be considered in calculating the actual costs which must be

compared with constructive costs, consistent with section 301-10.309 of the FTR and

implementation of that section described in Yates and Thurman. Because we have no

evidence of the cost of Mr. Cherry’s lodging on the way to and from Billings, however, we

cannot at this time determine his actual costs in this regard. Mr. Cherry must show DOI

receipts for lodging expenses he incurred en route for those expenses to be considered part

of his actual costs. 41 CFR 301-11.25.

The third matter is whether the cost of a rental car (including gas) in Billings should

be considered in determining the constructive costs of Mr. Cherry’s trip. The DOI policy

preventing this cost from being included is plainly at variance with the meaning of the term

“constructive cost,” since this is a cost which the agency acknowledges would have been

incurred if Mr. Cherry had flown to and from Billings.

We now apply these rulings to the dollar amounts cited by the parties. The actual

costs incurred by Mr. Cherry on this trip were $2741.92 (or $2907.92 if he can produce

lodging receipts in the amounts he claims). This amount consists of $1207.92 in mileage

(2157 miles at fifty-six cents per mile), $913 in lodging expenses ($1079 if the receipts in

question are produced), and $621 in per diem allowance. The constructive costs – the costs

he would have incurred if he had traveled by air – are $2630.92. This figure includes the

rental car costs at issue. Because the constructive costs are less than the actual costs

(whether receipts for lodging en route are produced or not) Mr. Cherry’s reimbursement is

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limited to the amount of the constructive costs. DOI has already reimbursed him in the

amount of $1995.91. Consequently, as he contends, the agency must now pay him an

additional $635.01 – the difference between $2630.92 and $1995.91.

_________________________

STEPHEN M. DANIELS

Board Judge