In the Matter of STEPHEN M. ENGLAND

January 30, 2015

CBCA 3903-TRAV

In the Matter of STEPHEN M. ENGLAND

Stephen M. England, Glen Mills, PA, Claimant.

Anne M. Schmitt-Shoemaker, Deputy Director, Finance, Finance Center, United

States Army Corps of Engineers, Millington, TN, appearing for Department of the Army.

DRUMMOND, Board Judge.

The Army Corps of Engineers directed employee Stephen M. England to travel from

Philadelphia, Pennsylvania, to Key West, Florida, on official business from March 16

through 28, 2014. The agency determined that the most advantageous method of travel for

this trip was by airline. Mr. England asked to be allowed to drive his motor home instead of

flying, so that he could stay in Key West in a campground instead of a hotel and thereby

incur much lower lodging costs. The agency authorized him to drive, stating on his travel

orders that “mileage reimbursement [at fifty-six cents per mile] and per diem is limited to

constructed cost of common carrier transportation and per diem as determined and travel time

as limited per JTR [the Department of Defense’s Joint Travel Regulations].”

After returning from Key West, Mr. England sought reimbursement for his travel

expenses. The agency paid him a total of $3037.36, which represented the cost of his

lodging, a per diem allowance, and highway tolls, plus the airfare he would have incurred if

he had flown to and from Key West.

Mr. England believes that he should have been reimbursed $4127.65, a figure which

represents the above costs, less airfare, plus $1472.80 in mileage. He maintains that the

constructive cost of his trip – the cost he would have incurred if he had traveled by air –

would have been much higher than his actual costs ($4965.60 instead of $4127.65). The

constructive cost, therefore, should not have limited his reimbursement.

CBCA 3903-TRAV

2

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 [privately owned vehicle] 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.

41 CFR 301-10.309 (2013). The term “per diem,” as used in the FTR, includes lodging as

well as a per diem allowance for meals and incidental expenses. Id. 300-3.1

Mr. England and the Corps both ask us to look to JTR C4710-C. This provision

restates the FTR rule more elaborately:

If a traveler elects to use a POC [privately owned conveyance] instead of the

authorized transportation mode (other than GOV [government owned

vehicle]), reimbursement must be limited to the authorized transportation mode

constructed cost, which is the sum of per diem and the transportation cost the

GOV’T [Government] would have incurred if travel was performed by the

authorized transportation mode.

JTR C4710-C then continues, confusingly:

No other costs are added to the computation. Reimbursable expenses

associated with driving a POC (e.g., parking, tolls) and incurred during

travel between the PDS [permanent duty station] and TDY [temporary

duty] location are not authorized.

Example: A traveler is authorized air transportation from Washington, DC,

to Orlando, FL, at a cost to the GOV’T of $500 for the air transportation only.

The traveler elects to use a POC to perform travel to the TDY site. The

traveler is limited to a maximum of $500 for transportation costs. Any other

costs that MAY HAVE BEEN associated with the use of the authorized air

transportation have no bearing on the cost construction of the reimbursable

transportation costs. Reimbursement for parking, ferry fares, or tolls are not

authorized.

CBCA 3903-TRAV

3

We have recently explained how the FTR provision 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.

Robert A. Cherry, CBCA 3878-TRAV, 14-1 BCA ¶ 35,707 (quoting Peter C. Thurman,

GSBCA 15562-TRAV, 01-2 BCA ¶ 31,516, and Russell E. Yates, GSBCA 15109-TRAV,

00-1 BCA ¶ 30,785).

The first sentence of the JTR provision cited above is faithful to both the FTR

provision and the Board’s explanation of how that provision is to be applied. Unfortunately,

the remainder of JTR C4710-C, to the extent that it may be comprehended at all, makes hash

of the first sentence. The “authorized transportation mode constructed cost,” to use the first

sentence’s phrase, cannot be calculated without taking into consideration all the costs that

a traveler would incur if he traveled by that authorized mode. “Reimbursable expenses

associated with driving a POC” are by definition not authorized when the Government finds

travel by common carrier most advantageous, but they are essential to a comparison between

costs actually incurred and the constructed cost of traveling by common carrier. Similarly,

every cost that “MAY HAVE BEEN associated with the use of the authorized air

transportation” is essential to such a comparison, and so are “parking, ferry fares, [and] tolls”

that a traveler actually pays when driving his own vehicle.

CBCA 3903-TRAV

4

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.

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

prior decisions)). The portion of JTR C4710-C other than the first sentence deserves no

credence because it is not faithful to the FTR.

Mr. England correctly points out that if he had traveled to Key West by air, he would

have incurred higher lodging costs, as well as airfare, airline baggage fees, airport parking

fees in Philadelphia, and rental car costs in Key West. The constructive cost would have

been greater than the costs he actually incurred by driving to and from Key West and staying

in a campground. Thus, applying the FTR and the first sentence of JTR C4710-C, he must

be reimbursed for his actual costs.

We make an adjustment to one element of the costs he claims and question whether

another element should be reimbursed. (1) Mr. England seeks a per diem allowance at the

rate prescribed for Key West in 2014 ($71/day) for each of twelve days. The FTR limits the

per diem allowance for the day of departure and the last day of travel to seventy-five percent

of the applicable rate. 41 CFR 301-11.101. Consequently, Mr. England is entitled to only

$53.25 in per diem allowance for each of the first and last days of his trip. (2) He also seeks

reimbursement of $17.05 per day for a tax he allegedly paid on the campground fee. The

FTR provides that a traveler on official business must pay applicable lodging taxes, unless

exempted by the state or local jurisdiction, and those taxes are reimbursable as a

miscellaneous travel expense. Id. 301-11.27, -11.28. Our record contains no documentation

that Mr. England ever paid such taxes, however. He is entitled to reimbursement for them

only if he can show the agency that he actually paid them.

________________________

JEROME M. DRUMMOND

Board Judge