In the Matter of MONIKA M. DERRIEN

February 13, 2018

CBCA 5901-TRAV

In the Matter of MONIKA M. DERRIEN

Monika M. Derrien, Burlington, VT, Claimant.

Polly Wheeler, Chief, Pacific SW National Wildlife Refuge System, Fish and Wildlife

Service, appearing for Department of the Interior.

SHERIDAN, Board Judge.

Monika Derrien (claimant) was a graduate student who performed a directorate

fellowship with the Fish and Wildlife Service (FWS or agency) from June to September

2015. As a directorate fellow for a federal agency, claimant was entitled to the travel

reimbursement amounts available to ordinary invitational travelers. She now disputes the

disallowance of $2111.89 in costs related to the use of her personal vehicle (POV), lodgings,

and meals and incidental expenses (M&IE) while traveling to and from her temporary duty

(TDY) stations.

Background

Claimant’s travel required her to drive from her residence in Burlington, Vermont, to

the National Conservation Training Center (NCTC) in Shepherdstown, West Virginia, for

orientation, and then to her extended TDY station at Ash Meadows National Wildlife Refuge

(Ash Meadows) in Amargosa Valley, Nevada. Ash Meadows is located in Death Valley, in

the Mojave Desert, approximately ninety miles northwest of Las Vegas, Nevada.

Throughout May and June 2015, in preparation for and prior to travel, claimant

communicated by e-mail with the refuge manager at Ash Meadows, Annjanette Bagozzi, and

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FWS regional workforce recruiter, Bill Johnson. These emails show that Ms. Bagozzi and

Mr. Johnson expected claimant to incur travel expenses to the NCTC and Ash Meadows, and

then back to Burlington after the fellowship was completed, and that FWS would reimburse

Ms. Derrien for those expenses. Claimant states that during her communications with Ms.

Bagozzi she was told she would need to use her POV for the fellowship. As claimant is not

an FWS employee, she relied on Ms. Bagozzi and Mr. Johnson to provide her information

about what FWS required. As she was not an FWS employee, and did not have access to

FWS systems, Ms. Derrien also relied on FWS employees to input her information into

appropriate FWS systems on her behalf.

On or about May 15, 2015, claimant submitted requested information to Mr. Johnson

for input into two software systems: Concur, the agency’s E-Gov Travel Service (ETS), and

the Automated Clearing House (ACH) for direct deposit.1 Claimant emailed Mr. Johnson

on June 10, 2015, to ask if her information was correctly entered into Concur and ACH. Mr.

Johnson assured her by reply email, “I took care of everything on my end by getting your

traveler profile established in our system.” Claimant followed-up by forwarding the email

to Ms. Bagozzi who responded on that same day that she had not yet received the information

from Mr. Johnson. In pertinent part, Ms. Bagozzi wrote on June 10:

Wow. I didn't get any of that from anyone. We'll get it sorted out. Because

you're not flying it will be a matter of reimbursement rather than trying to pay

for a flight up front.

You will be paid mileage for your drive and be given meals and incidental

expenses cash [MI&E]. I would keep your hotel receipts for any overnights

on your drive and we will be able to figure it out from there.

On June 11, 2015, Ms. Bagozzi and Molly Sweat, a FWS management analyst, signed

a form titled “Invitational Travel: Travel Authorization.” The form contained preprinted

language stating that the use of a POV was subject to being:

(a)

Administratively determined to be [for] the advantage of

the Government

In its reply, FWS asserts that claimant did not enroll in Concur prior to travel.

However, email correspondence with Mr. Johnson indicates that claimant provided him the

required information for input into Concur.

1

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(b)

3

A showing of advantage to the Government

(c)

Not to exceed cost by common carrier, including

consideration of Per Diem allowances.

Claimant denies receiving a copy of the June 11, 2015, travel authorization form.2 The

record also contains a cost comparison form (first cost comparison) apparently signed by

claimant and Ms. Bagozzi that reflects the costs shown in the June 11, 2015, authorization

form. Ms. Derrien denies receiving or signing the first cost comparison form.3

Claimant began her travel on June 14, 2015, when she drove her POV approximately

535 miles from Burlington to the NCTC in Shepherdstown. She stayed at the NCTC for

orientation until June 19, when she began her seven-day drive to Nevada. While driving to

Nevada, she stayed at various hotels. She arrived in Nevada on June 25, and began her

fellowship at Ash Meadows.

FWS officials did not submit the June 11, 2015, authorization form or the first cost

comparison to reviewing officials until July 27, 2015, forty-three days after claimant began

travel and was already in Nevada with her POV. On July 28, 2015, Kathleen Brennan, a

FWS fellowship analyst, received the first authorization form and wrote to Ms. Bagozzi and

Ms. Sweat instructing them to update the comment field with a reason why the agency

authorized POV and to sign a cost comparison form for mileage reimbursement. That same

day, FWS then completed another cost comparison (second cost comparison) that repeated

the calculations from the first. In its first and second cost comparisons, FWS again showed

that the estimated cost of using a POV was approximately $1745.41, whereas travel by air

would cost approximately $2253.49. Ms. Brennan requested a more detailed explanation as

to why FWS authorized the use of POV, but a response was not forthcoming at that time.

Ms. Brennan began some email correspondence with claimant on December 2, 2015,

well after the fellowship and its associated travel had concluded. In that correspondence, Ms.

Brennan wrote that claimant would be reimbursed for the constructive costs of travel by

commercial carrier and car rental at the TDY. Ms. Brennan also asserted that the use of air

2

The form did not address lodgings or MI&E, expenses that Ms. Bagozzi

confirmed in her email the day prior would be reimbursed.

3

record.

The identical form, except showing the date of July 28, 2015, is also in the

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travel would have been “the most cost-effective method” when compared to claimant’s actual

costs of $2981.57 for the one-way trip to her TDY. She also directed claimant to the Federal

Travel Regulation (FTR) provisions regarding the mode of travel that may be authorized by

the Government.

Claimant asserts that sometime in July 2015, FWS provided her with a voucher that

did not include all of her travel expenses. She subsequently received another voucher with

the costs of one-way travel totaling $2852.72 of reimbursable fees that she, along with Ms.

Bagozzi, signed on August 31, 2015. This amount constituted the total cost of her travel to

the TDY location in Nevada, including lodging and M&IE.

There is little evidence of further contact between claimant and FWS officials over

the year. Between January and May 2016, Ms. Derrien was in contact with an official at Ash

Meadows regarding various vouchers that did not fully reimburse her expenses and which

claimant declined to sign. In September 2016, claimant was contacted by a travel arranger

from NCTC, and on September 22, 2016, another authorization was signed that contained

a detailed rationale for why FWS authorized the POV. That authorization offered the

following explanation:

Due to the nature of her work, and the location of her accommodations, it was

necessary for Monika Derrien to drive her privately owned vehicle [in] Burlington,

VT to and from her Directorate Fellows Program (DFP) duty station in Nevada, and

the DFP Orientation at the National Conservation Training Center, Shepherdstown,

WV. Since Ms. Derrien was working at several field sites in the greater Las Vegas

area for her outreach position and a government vehicle was not available for her use,

it was critical that she had her own transportation.

Nonetheless, reviewing officials at FWS insisted that the POV was originally

authorized due to an erroneous initial cost comparison.4 Over the two years Ms. Derrien’s

4

In addition to the first and second cost comparison forms, there are three other

cost comparisons in the file. A September 22, 2016 cost comparison shows $2846.81 in

actual costs to claimant and constructive costs of $2200 by common carrier (airfare and

associated costs). The first of two undated cost comparisons reflects total claimant travel and

lodging costs of $4432.69 and total constructive costs of $3342.68 (this is the cost

comparison on which the agency based its reimbursement amount of $3342.68. The other

undated cost comparison shows $2831.80 in actual costs to claimant and $971.49 in

constructive costs by common carrier.

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travel was being considered by FWS officials, FWS amended or rejected, multiple vouchers

for different amounts indicating different mileage rates. On October 6, 2016, in order to

initiate the appeals process, claimant signed a voucher for $3342.10 in reimbursable costs,

and on October 17, 2017, the agency reimbursed claimant that amount. Claimant asserts she

is due an additional $2111.89.5 The agency argues that claimant is barred from recovery, as

the first authorization of POV was erroneous due to the agency’s own failure to develop an

accurate cost comparison.

Discussion

FWS argues that this case falls within our holdings that there can be no equitable

recovery for relying on the bad advice of a government employee, when the advice is

unauthorized by statute or regulation. For the reasons set forth below, we conclude that the

facts of this matter do not limit claimant’s ability to recover the actual expenses that she was

authorized and relied on receiving when traveling in the interest of the Government. Those

expenses include POV mileage at $.56 per mile, lodging, and M&IE.

When she began her travel on June 13, 2015, Ms. Derrien was instructed by FWS

employees with whom she was told to interact to use her POV and that she would receive

appropriate reimbursement for her mileage, lodging, and M&IE. As claimant was not an

FWS employee, she did not have access to the FWS systems and was dependant on the

information and authorizations she was given by those FWS employees. Claimant knew of

no reason why she should not rely on the email authorization given by FWS employees, and

without receiving any verbal or written communication that she should not, began her travel

with her POV. While the process followed by FWS was unconventional for someone

familiar with traveling in the interests of the Government, there was nothing in that process

to alert claimant to the fact that the travel might later be impacted by some additional FWS

reviewing authority after her travel had begun.

The agency “must select the method most advantageous to the Government, when cost

and other factors are considered.” 41 CFR 301-10.4 (2014) (FTR 301-10.4). The FTR

presumes that the most advantageous method of transportation by order of precedence will

be common carrier, government vehicle (GOV), POV, or special conveyance for travel. FTR

5

FWS does not dispute that $2111.89 remains unpaid.

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301-10.3 “POVs should be determined to be the most advantageous method of transportation

only after your agency evaluates the use of a common carrier, a Government-furnished

automobile, and a rental car.” FTR 301-10.5(d).

FTR 301-10.4, however, provides that the form of travel must be “the method most

advantageous, when costs and other factors are considered.” (emphasis added.)6 Other

factors for an agency to consider might include, but are not limited to “energy conservation,

total cost to the Government (including costs of per diem, overtime, lost worktime, and actual

transportation costs), total distance traveled, number of points visited, and number of

travelers.” FTR 301-10.4.

While it is generally assumed that common carrier transportation is the most

advantageous method of transportation, an agency may authorize use of other modes of

transportation, rather than common carrier, when the use of common carrier:

(a)

Would interfere with the performance of official business;

(b)

Would impose an undue hardship upon the traveler; or

(c)

When the total cost by common carrier would exceed the cost of the

other method of transportation.

FTR 301-72.2.

In longstanding case law, the Board has held that where relevant statutes and

regulations do not provide for payment for a particular purpose, an agency may not make

such a payment. Lauren R. Potempa, CBCA 5136-RELO, 16-1 BCA ¶ 36,275, at 176,929

(citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), and Federal

Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)). Thus, an agency employee’s

erroneous advice cannot obligate the Government to make payment of monies that are not

authorized by statute and regulation. Beth A. Wilson, CBCA 600-RELO, 07-1

BCA ¶ 33,546, at 166,152 (citing Suzanne S. Lowe, GSBCA 16696-RELO, 06-1 BCA ¶

33,202).

6

“The travel of an employee shall be by the most expeditious means of

transportation practicable and shall be commensurate with the nature and purpose of the

duties of the employee requiring such travel.” 5 U.S.C. § 5733 (2012).

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In this matter, however, the emails authorizing claimant’s travel were not contrary to

the holdings premised on the reasoning of Richmond, because the FWS employee who

authorized claimant’s travel had the discretion to authorize the use of the POV, even without

creating a formal cost comparison. Further, the “after the fact” assessment of a FWS

reviewing official, who disagreed with the initial authorization, cannot serve to limit

claimant’s recovery, particularly since the authorized travel had already begun. Here, the

authorizing official assured claimant that the agency would reimburse POV mileage, lodging,

and M&IE. This assurance occurred the day before signing an authorization for claimant to

use her POV. Claimant traveled in reliance on this assurance and arrived in Nevada

believing she would be recompensed appropriate mileage, lodging, and M&IE.

The record shows that FWS employees who interacted with Ms. Derrien as she was

planning her travel, believed that claimant’s use of her POV would be the most advantageous

to the Government. This Board has noted that FTR 301-72.2 gives “agencies discretion to

use ‘methods of transportation other than common carrier’ when appropriate.” Herbert H.

Galliart, CBCA 3242-TRAV, 13 BCA ¶ 35,294, at 173,397. We held in Gilda E. Best,

CBCA 4121-TRAV, 15-1 BCA ¶ 35,814 that:

Constructive cost analysis is appropriate under applicable regulations when an

employee elects to use his or her POV instead of the authorized mode of

transportation, 41 CFR 301-10.309 (2014), but is not to be used when the

employee, as in this case, has been authorized use of the POV as an alternative

mode of transportation. William T.Cowan, Jr., GSBCA16525-TRAV, 05-1

BCA ¶ 32,906 (agency may not reduce an employee’s entitlement to the

constructive cost of previously authorized air travel when the agency

subsequently authorized the claimant to travel by POV); see also Michael C.

Biggs, CBCA 928-TRAV (Apr. 23, 2008).

Id. at 175,143 (emphasis added).

Under the circumstances present here, the FWS authorizing official had the discretion

to approve the use of the POV, and it was up to that FWS official to properly consider

whether use of the POV was most advantageous to the Government. She was not, however,

required to conduct a cost comparison. The FTR instructs agency officials:

When determining whether the use of a POV to a TDY location is the most

advantageous method of transportation, agencies must consider the total cost

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of using a POV as compared to the total cost of using a rental vehicle,

including rental costs, fuel, taxes, parking (at a common carrier terminal, etc.),

and any other associated costs.

FTR 301-70.102. While the regulation requires an agency to consider competitive cost when

authorizing travel using a POV, an agency is not required to conduct a cost comparison as

the basis of this authorization.

Ms. Derrien began her travel authorized to use her POV and to be reimbursed

appropriate mileage, lodging, and M&IE. It is well-settled that “valid travel orders cannot

be revoked or modified retroactively, after the travel is completed, to decrease rights that

have already become fixed.” Renee Cobb, CBCA 5020-TRAV, 16-1 BCA ¶ 36,240, at

176,819; see Tomila K. Hearon, CBCA 3995-TRAV, 15-1 BCA ¶ 35,904, at 17,512;

Nidavan Kanasawadse, GSBCA 16508-TRAV, 05-1 BCA ¶ 32,913, at 175,512. The rule

applies unless there was an error on the face of the orders or the orders were clearly in

conflict with a law, regulation, or agency instruction. Jeffrey E. Koontz, CBCA 3251-TRAV,

13 BCA ¶ 35,318, at 173,372; Jack J. Pagano, CBCA 1838-TRAV, 10-1 BCA ¶ 34,408, at

169,877.

It appears that the process FWS used to approve Ms. Derrien’s fellowship travel may

have been deficient in several ways, ways that were only discovered during a review

conducted after claimant began her travel. Having determined that the FWS authorizing

official had the discretion to determine that claimant’s use of her POV was most

advantageous to the Government, once Ms. Derrien’s travel began on June 14, 2015, FWS

could no longer revoke or revise that authorization because a reviewing official later

disagreed with the determination or concluded that a FWS official improperly performed a

cost comparison. Based on the original travel authorization, Ms. Derrien is entitled to the

remaining $2111.89 in costs associated with the use of her POV, lodging, and M&IE.

Ms. Derrien also asks to be paid interest on the amount of her claim. The Board has

recognized that in the Travel and Transportation Act of 1998, “Congress . . . waived

sovereign immunity by granting interest to employees on certain tardy payments.” Nicholas

J. Thacker, CBCA 4981-RELO, 16-1 BCA ¶ 36,231, at 176,765 (citing Pub. L. No. 105-264,

§ 2(g), 112 Stat. 2350, 2352 (1998)); Michael G. Valle, 17-1 BCA ¶ 36,762, at 179,150. The

FTR provides that an “agency must reimburse [an employee] within 30 calendar days after

[he or she] submit[s] a proper travel claim.” FTR 301-52.17. The “agency must pay [the

employee] a late payment fee, in addition to the amount due [him or her], for any proper

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travel claim not reimbursed within 30 calendar days of [his or her] submission of it to the

approving official.” FTR 301-52.19. An agency must:

(a)

Calculate late payment fees using the prevailing Prompt Payment Act

Interest Rate beginning on the 31stf a proper travel claim and ending on the

date on which payment is made; or

(b)

Reimburse [the employee] a flat fee of not less than the prompt payment

amount, based on an agency-wide average of travel claim payments;

(c)

In addition to the fee required by paragraphs (a) and (b) of this section,

your agency must also pay you an amount equivalent to any late payment

charge that the card contractor would have been able to charge you had you not

paid the bill.

FTR 301-52.20. The record is fractured as to what was paid, what it was for, and when it

was paid. Accordingly, we use the October 6, 2016, voucher as establishing the date that Ms.

Derrien submitted a voucher for the claimed costs. Ms. Derrien is entitled to interest on her

claim from the thirty-first day subsequent to October 6, 2016, until paid.

Decision

Claimant is entitled to $2111.89 in costs associated with the use of her POV, lodging,

and M&IE, plus interest from the thirty-first day subsequent to October 6, 2016, until paid.

__________________________

PATRICIA J. SHERIDAN

Board Judge