In the Matter of WILLIAM V. KINNEY

October 31, 2018

CBCA 5861-TRAV

In the Matter of WILLIAM V. KINNEY

Nicholas M. Wieczorek and Jeremy J. Thompson of Clark Hill PLLC, Las Vegas, NV,

appearing for Claimant.

Karen E. Hickey, Attorney Advisor, Federal Courts Litigation, Office of the Chief

Counsel, Transportation Security Administration, Department of Homeland Security,

Arlington, VA, appearing for Department of Homeland Security.

LESTER, Board Judge.

Claimant, William V. Kinney, is a federal air marshal (FAM) employed by the Federal

Air Marshal Services (FAMS) within the Transportation Security Administration (TSA),

Department of Homeland Security. As part of his position, Mr. Kinney often engages in

international temporary duty travel (TDY). At the outset of each of those trips, he drives his

privately-owned vehicle (POV) from his residence to his office before departing on a

government-provided shuttle for the airport, and he returns to his office by shuttle at the end

of each trip to retrieve his POV before driving back to his residence.

Through his claim before the Board, Mr. Kinney seeks payment of expenses that, over

the course of twenty-six international trips from July 2016 to March 2017,1 he incurred in

1

In his original submission, Mr. Kinney indicated that he had taken twenty-seven

international trips from July 2016 to March 2017, but, in subsequently submitted

documentation intended to detail those trips, we could identify only twenty-six. For purposes

of this decision, we rely upon the number of trips supported by documentation in the record.

CBCA 5861-TRAV

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traveling from his residence to his office at the outset of international TDY (prior to

departing from the office for the airport) and upon his return in traveling back from the office

to his residence. Mr. Kinney argues that, because his “travel status begins and ends at his

residence,” he is entitled to reimbursement of those travel costs and that “stopping by [the

duty station field office] does not negate that fact.” Claim at 3. TSA views Mr. Kinney’s

trips to and from the office prior to departing on and when returning from TDY as

commuting, rather than travel, and asks that we deny the claim in its entirety.

To correspond with travel policy changes that the agency periodically implemented

during the July 2016 to March 2017 claim period, we must break Mr. Kinney’s claim into

three distinct time periods. For the reasons set forth below, we remand consideration of costs

incurred during the first claim period to the agency for further review, grant recovery of

return office-to-residence travel costs for the second claim period, and deny Mr. Kinney’s

claim in its entirety for the third claim period.

Background

On scheduled departure days for international TDY, federal air marshals (FAMs)

assigned to the Chicago Field Office (CFO) must travel from their personal residences to the

CFO, where they perform official duties before being taken on a shuttle to the airport. Any

FAM who uses his or her POV to get from his or her residence to the CFO for official

pre-travel work duties can park the POV in the CFO parking lot, where it remains while the

employee is on international TDY. Upon returning from international TDY, those FAMs

return by shuttle from the airport to the CFO parking lot, retrieve their POVs, and proceed

to their personal residences. Nothing in the record here suggests that, when stopping at the

CFO on return travel to retrieve their POVs, the FAMs are required to perform any work at

the office before returning home.

TSA informs us that, for purposes of travel reimbursement, the CFO deems

international travel (and entitlement to travel costs) to commence when a FAM departs from

the CFO for the airport, rather than when the FAM departs from a personal residence en

route to the CFO prior to departure for the airport, and it deems travel to end when the FAM

returns to the CFO to pick up his or her POV. Mr. Kinney disagrees with the CFO’s

reimbursement practice, believing that the agency should consider travel to begin when the

FAM departs from his personal residence and to conclude when he returns home. Mr.

Kinney seeks reimbursement for transportation expenses of $903.06, which he claims he

incurred driving his POV between his personal residence and the CFO between July 2016

and March 2017 on days on which he was departing or returning from international TDY.

The claimed amount, Mr. Kinney alleges, “is an amount based off of miles driven and current

mileage rates, plus an amount to reimburse him for the tolls he incurred as a part of those

CBCA 5861-TRAV

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miles.” Mr. Kinney also requests a late payment fee or interest if the Board finds entitlement

to reimbursement of these costs.

In February 2017, Mr. Kinney filed a grievance with TSA’s National Resolution

Center pursuant to the TSA Human Capital Management (HCM) policy, HCM 771-4, and

its related Handbook. In his grievance, Mr. Kinney asserted that the FAMS was

mismanaging the mileage and toll reimbursement policy, as set forth in TSA Management

Directive 1000.6 (TSA MD 1000.6), the Federal Aviation Administration Travel Policy

(FAATP), and the Federal Travel Regulation (FTR), by refusing to reimburse him certain

transportation expenses on international missions. His grievance was denied.2

Subsequently, Mr. Kinney, through counsel, submitted his claim to the Board.

Discussion

The FTR Does Not Apply To Mr. Kinney’s Travel

Mr. Kinney asserts that the agency’s policy violates various provisions of the FTR,

which he interprets as entitling him to reimbursement for costs that he has incurred when

beginning travel from his personal residence to the CFO and, upon his return, from the CFO

to his personal residence. “The FTR is issued by the Administrator of General Services to

implement chapter 57 of title 5, United States Code,” and it sets forth rules governing “travel,

transportation, and subsistence expenses of federal civilian employees.” Jimmy D. Graves,

CBCA 963-TRAV, 08-1 BCA ¶ 33,805, at 167,343.

2

The grievance process does not appear to be part of any kind of collective

bargaining agreement that would preclude our authority to review Mr. Kinney’s claim. See

David P. Meyer, CBCA 6097-TRAV, 18-1 BCA ¶ 37,081, at 180,491 (discussing how,

depending upon the language of a collective bargaining agreement, a grievance process can

become a covered employee’s sole and exclusive procedure for resolving a travel claim).

Further, we are aware of no requirement that we defer in any way to findings made through

the grievance process. Our authority for resolving travel claims derives from statute and a

delegation from the Administrator of General Services, who Congress authorized to “settle

claims involving expenses incurred by Federal civilian employees for official travel and

transportation.” 31 U.S.C. § 3702(a)(3) (2012). Although an agency may voluntarily choose

to create an internal grievance process, that election does not limit or usurp the

Administrator’s statutory authorization or require the Administrator (or the Board in its role

as the delegate of the Administrator) to defer to findings resulting from the agency’s process.

CBCA 5861-TRAV

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The FTR does not apply in the circumstances here. When FAMS was created in 1985,

it was originally placed under the authority of the FAA. In legislation that became effective

April 1, 1996, Congress directed the FAA to “develop and implement . . . a personnel

management system for the [FAA],” inclusive of the FAA’s own personnel and travel

policies, “that addresses the unique demands on the agency’s workforce.” Pub. L. 104-50,

§ 347, 109 Stat. 436, 460 (1995) (now codified at 49 U.S.C. § 40122(g)(1) (2012)). With

limited exceptions not applicable here, Congress specifically provided that “the provisions

of title 5 [of the United States Code] shall not apply to the [FAA’s] new personnel

management system.” Id. (now codified at 49 U.S.C. § 40122(g)(2)); see H.R. Rep. No.

104-475, at 25 (1996) (stating that, in the statute, Congress “exempt[ed] the [FAA] from

most personnel and procurement laws that apply to other government entities and permitt[ed]

the FAA to develop its own personnel and procurement systems, subject to Congressional

review”). As such, except to the extent that the FAA has voluntarily chosen to adopt a

particular FTR provision or policy, see 49 U.S.C. § 106(l)(3) (authorizing the FAA, at its

election, to pay transportation expenses in accordance with chapter 57 of title 5), the FTR is

inapplicable to FAA employee travel and relocation claims. See, e.g., James S. Hartley,

GSBCA 16390-RELO, 04-2 BCA ¶ 32,717, at 161,873; Tracy Jones, GSBCA 15659-TRAV,

02-1 BCA ¶ 31,687, at 156,562 & n.1 (2001); James W. Respess, GSBCA 15532-RELO, 012 BCA ¶ 31,450, at 155,314. Implementing his statutory authority, the FAA Administrator

issued the Federal Aviation Administration Travel Policy (FAATP), which now defines and

controls FAA employee travel and relocation entitlements. Chauncey E. Ford, GSBCA

16728-RELO, 06-1 BCA ¶ 33,166, at 164,354 & n.1 (2005); Keith E. Kuyper, GSBCA

15839-RELO, 02-2 BCA ¶ 31,983, at 158,081; Alan D. Hendry, GSBCA 15585-RELO, 01-2

BCA ¶ 31,535, at 155,706.

In November 2001, Congress enacted the Aviation and Transportation Security Act

(ATSA), Pub. L. 107-71, 115 Stat. 597 (2001), through which it transferred the FAA’s civil

aviation security functions (including FAMS) to the newly-created TSA, which, like the

FAA, was placed under the auspices of the Department of Transportation. 49 U.S.C. § 114.

In the ATSA, Congress directed that “[t]he [FAA] personnel management system,” rather

than the FTR, “shall apply to employees of [TSA],” although it also permitted “the [TSA]

Under Secretary [to] make such modifications to the [FAA] personnel management system

with respect to [TSA] employees as the Under Secretary considers appropriate, such as

adopting aspects of other personnel systems of the Department of Transportation.” Id.

§ 114(n); see Damon Pfalmer, CBCA 1314-RELO, 09-1 BCA ¶ 34,074, at 168,480 (applying

the FAATP to TSA employee claim), vacated on other grounds, 09-2 BCA ¶ 34,164.

Although Congress, through the Homeland Security Act of 2002, subsequently transferred

responsibility for TSA to the Department of Homeland Security (DHS), see 6 U.S.C. §§ 203,

CBCA 5861-TRAV

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234,3 Congress did not alter the statutory direction applying the FAA’s personnel

management system to TSA, subject to TSA’s right to adopt its own modifications to those

policies and procedures.

TSA, as permitted by statute, has adopted its own policies regarding TDY travel, the

most recent of which are contained in TSA MD 1000.6, effective March 27, 2015, and TSA’s

Office of Finance and Administration Letter No. OFA-16-002 (OFA Letter 16-002), effective

October 2, 2016. The Assistant Administrator and Chief Financial Officer (OFACFO) for

TSA’s Office of Finance and Administration signed and issued both of those policies, which

apply to all TSA employees. Section 6.A of TSA MD 1000.6 establishes that “TSA

generally follows the FAATP, Chapter 301,” except to the extent that TSA has “clearly

identified” policy deviations within that TSA directive. TSA MD 1000.6, § 6.A. TSA MD

1000.6 also authorizes the Assistant Administrator for Law Enforcement/Director of [FAMS]

to establish “additional travel policy for FAMs in coordination with the Financial

Management Division (FMD).” Id. § 5.B. The FAMS Assistant Administrator has done so

through the issuance of a policy letter, Office of Law Enforcement (OLE) 3410, Domestic

and International Mission Travel (Pre-Deployment Requirements), dated May 5, 2015, that

was in effect at the beginning of the time period covered by Mr. Kinney’s claim. OLE 3410

was amended and reissued on December 15, 2016 (during the time period covered by Mr.

Kinney’s claim), followed by, on January 31, 2017, approval by the OFACFO of a waiver

for FAMS of certain TSA local day-of-travel transportation reimbursement policies that

would otherwise conflict with OLE 3410.

Our predecessor board for travel and relocation matters recognized that “TSA is

authorized to implement its own travel regulations independent of the FTR” and that “the

Board will look to those regulations as the primary source for resolving a disputed travel

claim involving that agency’s employees.” Andrew J. Kohl, GSBCA 16869-TRAV, 07-1

BCA ¶ 33,447, at 165,788 (2006). Although, in appropriate circumstances, the Board may

look to the FTR for guidance in interpreting TSA policies or in determining the proper

manner of calculating reimbursement, see Alfonso Diaz del Castillo, CBCA 2250-TRAV,

slip op. at 3-4 (June 21, 2011), it is the TSA policy that controls TSA employees’ entitlement

to travel costs. The claimant has the burden to show entitlement to the travel costs that he

seeks by reference to applicable written TSA policies, rather than the FTR. Vanderpool v.

United States, 84 Fed. Cl. 66, 84 (2008); see Andrew J. Kohl, 07-1 BCA at 165,788 (“TSA

is not required to conform to the provisions of the FTR.”).

3

In late 2003, shortly after TSA moved to DHS, FAMS was separated from TSA

and realigned into United States Immigration and Customs Enforcement, but, in October

2005, it returned to TSA.

CBCA 5861-TRAV

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Travel Expenses to and from Mr. Kinney’s Residence

I.

The Period from July to September 2016

Mr. Kinney’s claim encompasses twenty-six separate trips that he took between July

2016 and March 2017. At the outset of that claim period, a version of TSA MD 1000.6 dated

March 27, 2015, issued by the OFACFO, was in effect, as was OLE 3410, which the FAMS

Assistant Administrator had issued on May 5, 2015. Twice between July 2016 and March

2017, TSA issued changes to its various policies governing FAMS travel that affect Mr.

Kinney’s day-of-travel local transportation expense entitlements. To account for all of Mr.

Kinney’s trips, we break Mr. Kinney’s entitlements down into the time periods during which

these different policies were in effect. We first address Mr. Kinney’s entitlements under the

policy that was in effect from the beginning of July 2016 through the end of September 2016,

during which time Mr. Kinney traveled eleven times on international TDY.

As previously mentioned, section 6.A of TSA MD 1000.6 provides that “TSA

generally follows the FAATP, Chapter 301,” but that “[i]nstances where TSA policy deviates

from the FAATP are clearly identified” in TSA MD 1000.6 itself. The FAATP sets forth a

series of rules regarding reimbursement of day-of-travel local transportation expenses

incurred when an employee departs for and returns from TDY travel, see FAATP 301-10.23,

-10.309, -10.310, and TSA MD 1000.6 does not clearly identify any deviations to those rules

as they apply to FAMS.4 Given that TSA MD 1000.6 applies the FAATP absent a “clearly

identified” deviation set forth in TSA MD 1000.6 itself, we agree with Mr. Kinney that the

FAATP rules apply to this travel claim period.

The FAATP provides that the agency will pay the cost that an employee incurs

traveling from his or her residence to a common carrier terminal when commencing TDY

travel, as well as the return cost from the common carrier terminal when the employee comes

home at the end of TDY travel. FAATP 301-10.23, -10.309. If the employee commences

travel from his or her permanent duty station (PDS) rather than his or her residence, though,

the agency will pay the cost of round-trip travel by POV between the employee’s residence

and his or her office if, and only if, the employee is “authorized transportation from [the]

residence to [the] office on the day [the employee] begin[s] travel,” or “from [the] office to

[the] residence on the day [the employee] return[s] from travel,” “as provided in

4

Although TSA MD 1000.6 expressly defines the term “travel status” for travel

policy purposes, the directive states that the section defining that term “does not apply to

FAMS mission travel.” TSA MD 1000.6, § 6.B. The directive does not subsequently

provide a “travel status” definition for FAMS.

CBCA 5861-TRAV

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§ 301-10.24(c).” FAATP 301-10.310. Under FAATP 301-10.24(c), transport costs between

the employee’s residence and the office are authorized if the employee meets all of the

following conditions:

You require transportation on the day you depart for travel and:

(1)

(2)

(3)

Your trip will last two or more days (requiring at least one night’s

lodging);

You are not able to perform your commute by your normal mode of

transportation; and

Your use of the alternate mode of transportation results in an increase

in your commuting costs.

FAATP 301-10.24(c); see id. 301-10.24(d) (imposing a similar requirement for transportation

incurred on return TDY days from the office to the residence, with recovery limited to

situations in which the employee’s travel costs exceeded normal commuting costs because

of a need to travel by other than the normal mode of transportation).5

Applying FAATP 301-10.24(c) to Mr. Kinney’s travel between July and September

2016, it is clear that Mr. Kinney needed, and was authorized, transportation from his

residence on international TDY days and that his trips required at least one night’s lodging.

The record does not tell us, however, whether, during any of his eleven trips from July to

September 2016, Mr. Kinney needed to use a different method of travel from his residence

to the office on international TDY travel days than he used on regular commuting days or

whether such costs were higher than on regular commuting days. Only if, by necessity, the

cost of getting from his residence to the CFO on international TDY travel days exceeded his

5

The FAATP approach is fairly consistent with the FTR, which, because employees

are normally “expected to get to and from their posts of duty on their own time and at their

own expense,” Guenther Moehrke, B-252142 (July 6, 1993), generally precludes agencies

from “reimburs[ing] an employee for mileage expenses incurred when commuting.” Orlando

Sutton, CBCA 2781-TRAV, 12-2 BCA ¶ 35,072, at 172,268 (citing cases). Like the FAATP,

though, the FTR permits agencies, in their discretion, to deal with increased costs, beyond

regular commuting costs, that employees may incur in getting to the office on TDY travel

days that are necessitated by the impending travel. Kenneth R. Chaney, CBCA 3220-TRAV,

13 BCA ¶ 35,304, at 173,290; see Lloyd Chynoweth, B-203978 (Mar. 11, 1982) (grant of

discretionary authority in the FTR “is in recognition of the fact that an employee may incur

additional expenses, above the ordinary commuting cost for which he should be reimbursed

on days he departs from his office on an official trip requiring at least one night’s lodging”).

CBCA 5861-TRAV

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normal commuting costs would Mr. Kinney be entitled to reimbursement for that travel. We

remand this issue to TSA to allow Mr. Kinney to identify whether, for any of his eleven

international TDY trips during this period, his costs of traveling to the CFO exceeded his

regular costs of commuting to the CFO.6

TSA argues that we should not apply the FAATP reimbursement policies because,

during this period, the FAMS Assistant Administrator had in place a separate policy, OLE

3410, that was unique to FAMS and expressly precluded recovery of residence-to-CFO and

CFO-to-residence travel costs on international TDY days. TSA asserts that section 6.S of

TSA MD 1000.6 entitles local TSA offices, like the CFO, to “establish local travel policies

and procedures for their particular circumstances” that “may be used to formalize and define

the discretionary provisions in this directive,” TSA MD 1000.6, § 6.S, and that section 5.B

expressly authorizes the FAMS Assistant Administrator to “establish[] additional travel

policy for FAMs in coordination with the Financial Management Division (FMD).” Id.

§ 5.B.

Yet, the day-of-travel local transportation reimbursement provision in OLE 3410 to

which TSA refers directly conflicts with the FAATP provisions that, through section 6.A of

TSA MD 1000.6, TSA adopted as its own. Although TSA MD 1000.6 grants the FAMS

Assistant Administrator discretionary authority to establish additional travel policy, that

authorization does not justify the adoption of inconsistent policies effectively trumping or

rendering ineffective the FAATP provisions that TSA had made applicable to all of its

employees. See Frank J. Salber, GSBCA 16836-RELO, 06-2 BCA ¶ 33,330, at 165,286

(sub-agency can issue travel policy that supplements and explains main travel regulations,

but not one that is inconsistent with them); Random House Webster’s Unabridged Dictionary

23 (2d ed. 2001) (defining “additional” as “added; more; supplementary,” rather than

contradictory). Similarly, by authorizing local offices to issue travel policies that “formalize

and define the discretionary provisions” of TSA MD 1000.6, section 6.S of TSA MD 1000.6

allows local offices to adopt policies that supplement, but are not inconsistent with, those

portions of the FAATP that TSA has adopted through section 6.A.

TSA also argues that section 6.T of TSA MD 1000.6 allows TSA Assistant

Administrators to “request a waiver or exemption to TSA travel policy in order to meet

mission critical operational requirements.” TSA MD 1000.6, § 6.T. Yet, TSA has identified

no approved waiver by the OFACFO applicable to this period of time.

6

We recognize that TSA has asserted that Mr. Kinney is seeking only his normal

commuting costs, but it is unclear whether Mr. Kinney agrees with TSA’s assertion. Because

the record does not address this point, we find remand on this issue appropriate.

CBCA 5861-TRAV

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Because FAMS did not obtain any waiver from the necessary authority pursuant to

section 6.T to modify existing policy during this period, and because OLE 3410 conflicts

with otherwise established TSA local travel policy, FAMS cannot rely upon OLE 3410 to

preclude entitlement to reimbursement during this period. See C.P. Squire Contractors, Inc.

v. United States, 224 Cl. Ct. 765, 769 (1980) (action outside the scope of a government

employee’s delegated authority is not enforceable).

II.

October 2016 to January 2017

On October 1, 2016, TSA’s OFACFO issued OFA Letter 16-002, which expressly

addresses day-of-travel local transportation expenses and serves as a supplement to TSA MD

1000.6. That supplement provides that TSA can deny requests for day-of-travel local

transportation expenses if, among other things, “[t]he employee performs work before

traveling (departure day) or after the completion of TDY (return day).” OFA Letter 16-002,

§ 1.C(2)(c). Nevertheless, “[i]f the traveler performs work on the departure day but not on

the return day, local travel expenses on the day of official travel may be reimbursed for the

return day only.” Id. § 1.C(2)(c)(iii). Further, sections 3 and 5 of the supplement provide

that “[t]ravelers may be reimbursed for transportation expenses to reach his or her PDS, or

other TSA facility, to obtain a [government-owned vehicle (GOV)] and transportation

expenses incurred to return to his or her residence from his or her PDS . . . after the

completion of TDS and returning the GOV,” id. § 3, and that they “may be reimbursed for

POV expenses to reach his or her POV . . . to pick up personnel or equipment required for

official TDY.” Id. § 5.

In light of TSA’s statutory authority, the policies set forth in OFA Letter 16-002

override any conflicting provisions in the FAATP. We reject Mr. Kinney’s request to apply

the FAATP to his travel claim during this period of time. To the extent that Mr. Kinney

argues that OFA Letter 16-002 is ineffective because TSA did not add the policies stated

therein into TSA MD 1000.6 and then reissue that directive, we reject that argument. Even

though section 6.A of TSA MD 1000.6 indicates that “[i]nstances where TSA policy deviates

from the FAATP are clearly identified” in TSA MD 1000.6 itself, both TSA MD 1000.6 and

OFA Letter 16-002 were issued by the same authority – the OFACFO – and the prefatory

language in OFA Letter 16-002 makes clear that the OFACFO intended it as a revision and

supplement to TSA MD 1000.6. Given the clarity of the OFACFO’s intent and purpose in

issuing OFA Letter 16-002, we will not undermine that intent through an overly formulistic

interpretation of TSA MD 1000.6’s language.

Applying OFA Letter 16-002 to Mr. Kinney’s situation, Mr. Kinney is not entitled to

day-of-departure transportation expenses from his residence to his office because, since he

must perform work at the office before leaving on international TDY, the policy expressly

CBCA 5861-TRAV

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bars recovery of those costs. Nevertheless, he is entitled to day-of-return expenses from his

office to his residence because, after he returns from the common carrier terminal to the

office in government-provided transportation, he performs no work at the office before

returning home in his POV.7

The record indicates that Mr. Kinney commenced a total of ten international TDY

trips between October 2016 and January 2017. Nevertheless, because the record does not

indicate how Mr. Kinney calculated his return travel costs, we must remand this matter to the

agency for further review. To the extent that Mr. Kinney paid tolls in driving from the CFO

to his residence on his day of return and can substantiate those payments, he is entitled to

reimbursement of them, in addition to mileage.

III.

February to March 2017

As previously mentioned, section 6.T of TSA MD 1000.6 allows TSA Assistant

Administrators to “request a waiver or exemption to TSA travel policy in order to meet

mission critical operational requirements.” In December 2016, the FAMS Assistant

Administrator issued a revised version of OLE 3410 to “establish[] domestic and

international mission travel policy and procedures” for FAMS. OLE 3410, ¶ 3. That policy

document contains the following provision:

FAMs that are required to stop at a Field Office or Headquarters location

before an international mission for the pre-flight briefing are only permitted

to receive mileage reimbursement from the duty station to the airport and from

the airport to the residence at the conclusion of the mission. Mileage

reimbursement from the residence to the duty station for the pre-mission

briefing is not authorized. Stops to the field office at the conclusion of the

mission also negate mileage reimbursement from the field office to the

residence.

Id. ¶ 8.D. At the same time, the FAMS Assistant Administrator submitted a request to the

OFACFO pursuant to section 6.T of TSA MD 1000.6, seeking a waiver allowing FAMS to

opt out of sections 3 and 5 of the recently adopted OFA Letter 16-002 and to enforce its own

day-of-travel local transportation expenses policy. The OFACFO approved the waiver

request on January 31, 2017.

7

For the same reasons that we declined to apply the day-of-travel local

transportation cost restrictions contained in OLE 3410 to the July to September 2016 travel

period, we decline to apply them to the October 2016 to January 2017 travel period.

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The intent behind FAMS’ policy is clear: FAMS does not intend to provide

reimbursement of any expenses incurred for traveling between an employee’s residence and

the CFO. Although Mr. Kinney argues that his travel status “begins and ends at his residence

and stopping by the CFO does not negate that fact,” Claim at 3, he has identified no basis for

overcoming the new FAMS policy that the OFACFO approved through his waiver

authorization on January 31, 2017. Any confusion about whether Mr. Kinney’s travel

authorization permits departure from his residence, which could result from a unique blanket

method that FAMS uses to authorize FAM travel, is clarified by the language in OLE 3410.

Mr. Kinney asserts that he does not actually “stop” at the CFO on his return from

international TDY. Instead, he says, he “is picked up by a government owned vehicle and

transported to his POV” outside the CFO after which he “then drives directly home,” Reply

at 6, and therefore is not covered by the preclusion on mileage reimbursement following

“[s]tops to the field office” under paragraph 8.D of OLE 3410. We recognize that, when

applying the FTR, we have sometimes found that, if an employee merely stops by his office

building on the way to or from the airport without going inside or performing any work, he

may still be entitled to travel expenses starting from the time he departed his residence or

until his return there if the stop was merely for convenience as a continuous part of the travel

process – for example, where the employee drove to his office site to get on an airport shuttle

or to pick up a Government vehicle to be used for continuing the travel process. See, e.g.,

Jennifer A. Miller, CBCA 3240-TRAV, 13 BCA ¶ 35,360, at 173,537; Orlando Sutton,

CBCA 2823-TRAV, 12-2 BCA at 172,447; Issy Cheskes, CBCA 689-TRAV, 07-2 BCA

¶ 33,624, at 166,536. Although Mr. Kinney argues that we should give FAMs the same

travel reimbursement rights as employees subject to the FTR, the language of OLE 3401

precludes us from doing so. The drafting history of OLE 3410 makes clear FAMS’ broad

intent to bar all office-to-residence travel reimbursement, making us unable to support Mr.

Kinney’s request for a narrow exception for “stops” outside (rather than “to”) the CFO.

Because, following the OFACFO’s waiver approval, the policy that FAMS set forth in

paragraph 8.D is authorized, Mr. Kinney has no basis for recovering any of his requested

expenses for trips commencing on or after February 1, 2017.

Interest on Mr. Kinney’s Claim

Mr. Kinney asserts entitlement to interest because of TSA’s delay in paying his

claims. “It is well settled that,” under the doctrine of sovereign immunity, “the United States

cannot be charged with interest, except where liability therefor is clearly imposed by statute

or assumed by contract.” New York Guardian Mortgagee Corp. v. United States, 916 F.2d

1558, 1560 (Fed. Cir. 1990). This bar against the recovery of interest from the Federal

Government includes interest for delays in payments of travel and relocation claims, unless

the Government has expressly waived its sovereign immunity from an award of interest.

CBCA 5861-TRAV

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Nicholas J. Thacker, CBCA 4981-RELO, 16-1 BCA ¶ 36,231, at 176,765 (citing Library of

Congress v. Shaw, 478 U.S. 310, 311 (1986)); Synita Revels, GSBCA 14935-RELO, 00-1

BCA ¶ 30,716, at 151,709-11 (1999), reconsideration denied, 00-1 BCA ¶ 30,896.

To support his request for interest, Mr. Kinney cites to FTR 301-52.19 and 301.52-20,

which, as the Board has explained in the past, entitle an employee seeking travel

reimbursement “to a late payment fee based on the [interest rate applicable under the Prompt

Payment Act (PPA), 31 U.S.C. §§ 3901-3906 (2012),] beginning on the thirty-first day after

submission of a proper travel claim and ending on the date payment is made.” Jennifer A.

Miller, 13 BCA at 173,538. Those FTR provisions were promulgated in response to the

Travel and Transportation Reform Act of 1998, through which Congress, in an amendment

to chapter 57 of title 5 of the United States Code, directed the Administrator of General

Services to prescribe regulations that would require agencies to “reimburse[] an employee

who submits a proper voucher for allowable travel expenses in accordance with applicable

travel regulations within 30 days after submission of the voucher” and would obligate

agencies to pay “a late payment fee as prescribed by the Administrator” for failure to comply

with the thirty-day deadline. Pub. L. No. 105-264, § 2(g), 112 Stat. 2350, 2352 (1998)

(codified at 5 U.S.C. § 5701 Historical and Statutory Notes (2012)); see Nicholas J. Thacker,

16-1 BCA at 176,765-66 (discussing history of FTR 301-52.17 through -52.20).

The cited statutory and regulatory provisions do not provide Mr. Kinney with any right

to interest. As previously discussed, Congress exempted the FAA and TSA from the

requirements of chapter 57 of title 5, see 49 U.S.C. §§ 114(n), 40122(g)(2), and the FTR is

inapplicable to TSA travel claims. Andrew J. Kohl, 07-1 BCA at 165,788. Although the

FAA and TSA can voluntarily elect to adopt particular FTR provisions or policies, see 49

U.S.C. § 106(l)(3), we cannot find any provision in the FAATP or in TSA’s own policies

creating an agency obligation to provide interest on delayed travel claim payments.

Mr. Kinney has not identified any other sovereign immunity waiver applicable to the

payment of interest in the circumstances here. To the extent that his briefing references the

PPA interest rate, the PPA does not in and of itself apply to travel claims. Synita Revels,

00-1 BCA at 151,709 & n.2; see David W. Eubank, B-219526 (May 25, 1988) (PPA applies

to acquisitions from “business concerns,” not claims by federal employees).8 Mr. Kinney’s

interest request is denied.

8

Even if the PPA applied to travel claims, interest under the PPA does not begin to

run when the agency disputes entitlement to the amounts sought. Laurelwood Homes LLC

v. United States, 78 Fed. Cl. 290, 292-93 (2007).

CBCA 5861-TRAV

13

Decision

We remand this matter to the agency for further consideration, as follows:

(1)

For the eleven international TDY trips taken from July to September 2016, Mr.

Kinney will be entitled to reimbursement of his day-of-travel round-trip travel expenses

between his residence and the CFO only if he can show that, because of his international

TDY travel, his commuting costs exceeded what they normally would have been; and

(2)

For the ten international TDY trips taken from October 2016 to January 2017,

Mr. Kinney is entitled to day-of-return mileage expenses from the CFO to his residence, plus

reimbursement of tolls if he can substantiate their incurrence and amount.

The agency shall consider those issues and calculate Mr. Kinney’s entitlement.

Otherwise, Mr. Kinney’s claim is denied.

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge