December 20, 1996 GSBCA 13705-TRAV In the Matter of LORRIE L. WOOD Lorrie L. Wood, Lackland Air Force Base, TX, Claimant. Fred Portillo, Finance Accounting Liaison Office, Directorate of Support Services, Defense Finance and Accounting Service, Denver Center, Denver, CO, appearing for Department of Defense. DANIELS, Board Judge (Chairman). Lorrie L. Wood, a civilian employee of the Department of the Air Force at Falcon Air Force Base, Colorado, was sent on temporary duty (TDY) to Wright-Patterson Air Force Base, Ohio, on two non- consecutive weeks during October, 1994. Under normal circumstances, Ms. Wood would have flown home at Air Force expense at the end of the first TDY tour, performed her regular duties at Falcon during the following week, and then flown back to Wright-Patterson, again at Air Force expense, for the second tour. Ms. Wood informed agency travel office personnel that she planned to spend the week between the two tours on leave in San Antonio, Texas, however. The personnel told her that the agency would reimburse her for the cost of round-trip airfare between Wright-Patterson and San Antonio, up to the amount the agency expected to pay -- the cost of round-trip airfare between Wright-Patterson and Falcon. The Wright-Patterson to San Antonio round-trip cost $337; had Ms. Wood returned to Falcon, her airfare would have been $316. After completing both TDY tours, Ms. Wood requested reimbursement in the latter amount. The agency refused to pay for any portion of the cost of Ms. Wood's round-trip. Ms. Wood filed a claim with the General Accounting Office (GAO). We now settle this claim by determining that the position taken by the Air Force travel office personnel was correct, but that the one taken subsequently by the agency was not. In denying the claim, the Air Force relied on a provision of the Joint Travel Regulations, a set of rules which applies to Department of Defense civilian employees. The provision, C4563.E, is entitled, "Effect of Absence on Payment of Per Diem -- Travel on Nonworkdays to Location Other than PDS." It states: When an employee on TDY travels for personal reasons on nonworkdays from a place of TDY to a location other than his/her home or PDS [permanent duty station], the employee is entitled to per diem or AEA [actual expense allowance] for the nonworkdays not to exceed the amount payable had the employee remained at the TDY location. There is no entitlement to reimbursement for transportation costs when an employee travels for personal reasons from a TDY station on nonworkdays to a location other than his/her home or PDS (B-171266, February 24, 1971). The provision on its face does not apply to Ms. Wood for two separate reasons. First, it concerns travel which occurs entirely during an employee's tour of TDY, whereas the claimant's travel was during a transition between TDY and leave status. Second, the provision concerns travel on nonworkdays, and the claimant left Wright-Patterson on Friday, October 7, 1994, which was a workday. We are unable to find any regulation which speaks precisely to Ms. Wood's situation. Our task is consequently to determine, based on our reading of the sense of the statute and regulations which govern federal employees' travel expenses, whether Ms. Wood or the Air Force should pay for the airfare in question. Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting: "judges do and must legislate, but they can do so only interstitially"); B. Cardozo, The Nature of the Judicial Process 113 (1921) (a judge "legislates only between gaps"). The relevant statute is 5 U.S.C.  5702(a)(1) (1994), which states, in pertinent part: Under regulations prescribed [by the Administrator of General Services], an employee, when traveling on official business away from the employee's designated post of duty, . . . is entitled to any one of the following: . . . (B) reimbursement for the actual and necessary expenses of official travel not to exceed an amount established by the Administrator for travel within the continental United States or an amount established by the President or his designee for travel outside the continental United States. The statute says that the employee is entitled to such reimbursement. The verb "entitle" is a strong one; it means "to give a right or legal title to; to qualify (one) for something; to furnish with proper grounds for seeking or claiming something." Webster's Third New International Dictionary 758 (1986). Regulations which implement the statute, and decisions on claims under it, must be faithful to this direction. The principal regulation here is the Federal Travel Regulation (FTR). Because this regulation is issued under delegation from the Congress, it is a "legislative rule" which has special weight. Its provisions are valid and binding on all federal agencies, so long as they are within the granted power, issued pursuant to proper procedure, and reasonable as a matter of due process. K. C. Davis, 2 Administrative Law Treatise 36-43 (1979). (The Joint Travel Regulations (with a limited exception not relevant here) are issued without statutory imprimatur and merely explain and implement the FTR; they are "interpretative rules" and therefore deserve less weight. Id. at 38 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))). The FTR, at 41 CFR 301-2.5(b), speaks generally to a situation like Ms. Wood's which involves an interrelationship between personal and business travel. The regulation enunciates this principle: "When a person for his/her own convenience travels by an indirect route or interrupts travel by direct route, the extra expense shall be borne by him/her. Reimbursement for expenses shall be based only on such charges as would have been incurred by a usually traveled route." From 1921 until earlier this year, the Comptroller General of the United States settled all claims of or against the United States Government, including claims relating to travel and transportation expenses of federal employees. The GAO, which the Comptroller General heads, issued decisions which carried out this authority. GAO's decisions required that agencies implement the cited FTR provision in ways that are equitable to employees in that they conform to the statute's command that employees traveling on official business be reimbursed for expenses of official travel. For example, where an employee travels to a TDY assignment location by an indirect route, and incurs transportation costs which are less than the costs of travel from his PDS to the TDY location by the most direct route, the Government must pay the full amount of the travel costs. Although the employee derives a benefit in being able to make various intermediate stops along his route, the Government may not make him pay a pro rata share of the savings. Arthur F. Sampson, B-178535 (June 21, 1973). Even if the employee derives the benefit of free lodging at one of those stops, as part of a package deal which includes the lower fare, the Government may not force the employee to pay for this benefit. Expenses Necessary to Obtain Special Travel Fare, 54 Comp. Gen. 268 (1974). GAO applied the regulation involving indirect travel even where it recognized that the provision did not strictly pertain to the claim presented. GAO analogized from this rule for the purpose of implementing the sense of the statute and thereby achieving equity in a case involving airfare for a transferred employee's dependent daughter. The employee's agency authorized the young woman to travel from her college location to the employee's new PDS. Instead of the one-way ticket authorized, the employee purchased a round-trip ticket at lesser cost. GAO held that because the Government had authorized the more expensive travel, it was obligated to reimburse the employee for the entire cost of the lower-priced round-trip ticket. John P. Butt, 65 Comp. Gen. 47 (1985). Other GAO decisions involving travel in which leave and TDY assignments are juxtaposed in time similarly took an equitable approach to the circumstances presented. In several cases, an employee took annual leave en route to a TDY assignment, and would not have taken the leave if the assignment had not been made. The TDY was canceled while the employee was on leave, and the question then arose as to who should pay for the transportation expenses the employee incurred to reach the leave destination and return to his PDS. GAO held that the Government must pay the expenses, up to the amount it would have spent if the employee had traveled directly from his PDS to the location at which TDY was to have been performed. Albert L. Modiano, B-245519 (Feb. 18, 1992); Arnaud J. Loustalot, B-122739 (Feb. 10, 1977); H. A. Leibert, 52 Comp. Gen. 841 (1973). There is another line of GAO decisions which might be thought to pertain to Ms. Wood's situation. It relates to 41 CFR 301-7.15(b)(4), which states: When an employee voluntarily returns to his/her official station or place of abode for nonworkdays, the maximum reimbursement for the round-trip transportation and per diem en route shall be limited to the per diem allowance and travel expenses which would have been allowed had the employee remained at the temporary duty station. GAO reasonably held, with this provision in mind, that when an employee remains on TDY over nonworkdays, his entitlement to reimbursement for the expense of lodgings, and of meals and incidental expenses (usually in accordance with a per diem allowance), at the TDY location continues. Thomas H. Hall, B-209100 (May 9, 1983); James R. Curry, B-208791 (Jan. 24, 1983). If the employee travels on those nonworkdays to a location other than his PDS, the Government's obligation extends no further. Nancy J. Ronk, B-248172 (July 28, 1992); Lewis T. Moore, B-198827 (Aug. 3, 1981). The reason for this holding is clear: when an employee travels for his own personal convenience, the Government should not pay for his transportation. There are times, however, when the non-business travel of an employee on TDY is not merely for the employee's convenience; the Government may authorize an employee who is on extended TDY to return home on nonworkdays. Reimbursement for Travel on Nonworkdays between Temporary Duty and Official Stations, 55 Comp. Gen. 1291 (1976). When such travel is authorized and made, the Government should pay for it, even if it exceeds the cost which would have been incurred had the employee remained at his TDY station. The travel was authorized, GAO explained, for the benefit of the Government as well as the employee; it improves morale, and thereby increases productivity and resulting savings to the Government, and it also assists the Government in hiring and retaining employees. Id.; John F. Fields, B-186200 (Jan. 27, 1977). Other cases have raised a question one step further removed from the words of the regulatory provision: Who should pay for the transportation expenses of an employee on TDY who is authorized a trip home on nonworkdays, but travels instead to another location? This issue is analogous to Ms. Wood's situation. GAO held that since the travel was to another location, and the FTR does not contain express authority for the Government to pay for such travel, the employee was responsible for the expenses. Michael K. Vessey, B-214886 (July 3, 1984); Diana J. Bell, B-200856 (Aug. 3, 1981). We note that Ms. Wood's claim to reimbursement for the cost of transportation to a location other than her PDS may be considered to be stronger than those of the claimants in these cases, for she was entitled to a trip home, whereas these individuals were only permitted such travel. We do not rest our holding on this distinction, however; we see the authorization as conveying an entitlement. We think that in the last-cited rulings, GAO deviated from its general approach described above and applied an inappropriate view of the role of regulations in carrying out the Congress's intent in enacting the travel expense statute. As recognized in the other decisions, where a regulation is silent on a question, the best answer is not "no," but rather, what common sense dictates, based on an informed understanding of the governing statute and regulation. As a learned commentator has explained: Some problems that government must resolve cannot be governed by rules or even by meaningful standards because no one knows how to write the rules or standards. . . . Discretion is indispensable for individualized justice, for keeping law abreast of new conditions and new understanding, for new governmental undertakings for which rules have not yet been developed, and for some programs for which no one knows how to write rules. K. C. Davis, 1 Administrative Law Treatise 112, 115 (1978). The statute grants Ms. Wood, as a Government employee on official travel, an entitlement to reimbursement for the cost of her travel from Wright-Patterson to Falcon at the end of her first TDY tour, and for the cost of the return flight at the beginning of the second tour. She did not lose that entitlement when she decided to take leave in San Antonio during the intervening week, rather than returning home. Permitting the Air Force to derive a windfall of not having to pay expected transportation costs because the claimant traveled to a location other than Falcon would be inconsistent with the statute's instruction. Because Ms. Wood actually incurred transportation costs in leaving one TDY tour and beginning the other one, and limits her claim to the amount the Air Force was obligated to pay, her claim is granted. See 41 CFR 301- 11.5(c) and John A. Park, B-227468 (Mar. 11, 1988) (as to requirement for proof of incurrence of costs). _________________________ STEPHEN M. DANIELS Board Judge