Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ March 29, 1999 _______________________________________________ GSBCA 14678-TRAV In the Matter of LEON RODGERS, JR. Leon Rodgers, Jr., Columbus, GA, Claimant. Anne M. Norfolk, Attorney-Advisor, Headquarters United States Army Judiciary Center, Department of the Army, Ft. Benning, GA, appearing for Department of the Army. BORWICK, Board Judge. Claimant, a civilian employee of the Department of the Army (agency), works as a psychologist and social worker at the Martin Army Community Hospital (MACH), Fort Benning, Georgia. He has submitted travel vouchers for fifty-four trips between July 3, 1996 and March 24, 1998 by privately-owned vehicle (POV) of eleven miles each at $.31 per mile for a total of $184.14. In a letter to his Congressman, forwarded to this Board for consideration, claimant alleges that he was improperly recalled to work from his residence and is entitled to payment of his commuting expenses. The agency moved to dismiss for lack of jurisdiction for claimant's failure to file an initial claim with the agency. For the reasons below, we deny that motion. We conclude that under the applicable provision of the Joint Travel Regulations (JTR), claimant is not entitled to reimbursement for local travel because his travel was unallowable commuting expenses. We first address the agency's motion to dismiss. The agency argues that claimant failed to file an initial claim with the agency as required by Board Rule 401(c), a requirement analogous to the requirement that litigants exhaust administrative remedies before filing suit in federal court. In its dismissal motion, the agency also stated that even if the appeal were deemed to be timely, the agency would not reimburse claimant for his trips because reimbursement for commuting expenses is not allowable. The agency has held this position since the filing of this claim and in subsequent correspondence to the Board; the agency has not stated that any information claimant might supply in a claim to the agency would change its position. Ordinarily, under Rule 401, we would dismiss a travel or relocation claim filed with the Board that had not first been presented to the agency. Steve Resch, GSBCA 14526-RELO (Mar. 26, 1998). However, in the absence of a statute requiring exhaustion of remedies, application of a rule like this one is a matter of judicial discretion. Communications Workers of America v. American Telephone & Telegraph Co., 40 F.3d 426, 432 (D.C. Cir. 1994).[foot #] 1 The futility exception is a well- recognized exception to the exhaustion doctrine. Where a litigant can demonstrate that resort to administrative remedies would be futile because of the certainty of an adverse decision, exhaustion of administrative remedies will be excused. Id.; see Fallick v. Nationwide Mutual Insurance Co., 162 F.3d 410, 419 (6th Cir. 1998) (using the standard of clear and positive indication of futility). We apply this doctrine to Board Rule 401. Here, it is certain that if claimant filed a claim with the agency it would be denied on the same ground articulated by the agency in its motion and subsequent correspondence to the Board. The agency's motion to dismiss is therefore denied. We turn to the merits. The facts as indicated by the record are as follows. On or about June 6, 1994, claimant was appointed to the position of social worker at the United States Army Medical Department Activity (MEDDAC) at the MACH, Fort Benning, Georgia. Claimant's job description, as provided by claimant, describes the program in which claimant was to work as the "Alcohol and Drug Abuse Prevention and Control Program."[foot #] 2 The job description describes the major duties of the position, including the following: ----------- FOOTNOTE BEGINS --------- [foot #] 1 The statute providing GSA authority to settle travel and relocation claims does not have an exhaustion requirement. 31 U.S.C.A. 3702 (West Supp. 1997) [foot #] 2 The position description provided by the agency states that the Department in which clamant worked was "Psychiatry, Psychology Service," also located at the MACH MEDDAC. The position description is otherwise the same as claimant's version. Claimant states that this portion of the position description was "a forgery." The agency responds that its version of the position description was not a forgery at all, but simply reflects a voluntary reassignment in 1996 from the Alcohol and Drug Prevention and Control Program to the Department of Psychiatry. The agency has submitted a notification of personnel action reflecting that reassignment, effective April 14, 1996, as "made with the employee's concurrence." The agency argues that after the reassignment claimant was performing "essentially the same duties in the same grade and series." The disagreement over the wording of this section of the position description masks a larger dispute over the scope of claimant's duties, a dispute over which, we explain later, we have no jurisdiction. ----------- FOOTNOTE ENDS ----------- This position is responsible for the planning and operation of all substance abuse clinical/treatment components of substance abusing adults and adolescents while in short term inpatient aftercare, with the exception of medical management. . . . . 2. Serves as case manager for patients assigned to the inpatient/outpatient program. Supervises substance abuse counselors providing services within the inpatient and day care program. Participates in, advises on, and critiques group/individual counseling conducted by the substance abuse counselor. Provides general direction as needed in assessing group functioning aimed at treatment goals and reviews the placement and withdrawal of individual patients from group participation. Provides on-call services to the Emergency Room for the purpose of interviewing patients.[foot #] 3 Participates in the Quality Improvement and Assurance program of the unit. Attends and, when assigned, provides in-service training for staff as well as attending professional conferences and seminars for further training purposes. Maintains written and computerized records as directed. [Emphasis supplied]. Employees of the MACH's Department of Psychiatry personnel work under a written standard operating procedure for on-call responsibilities. That procedure provides that social workers be designated "second call" for duty in the MACH emergency room, and that any time the emergency room or a behavioral science specialist requests that a patient be seen by an employee on second call, the response will be that the employee go the emergency room and see the patient. The procedure also provides that on-call personnel shall "work as a team," and that "if one member of the team has taken several calls and feels it is unsafe ----------- FOOTNOTE BEGINS --------- [foot #] 3 Federal employees are entitled to overtime or premium pay for hours of work in excess of eight hours in a day or forty hours in a workweek. 5 CFR 551.501(a) (1998). An employee who is restricted to his/her living quarters or designated duty post, whose activities are substantially limited and who is required to remain in a state of readiness to perform work is considered on standby duty. Time spent on standby duty is considered hours of work. 5 CFR 551.431. In contrast, an employee is in on-call status and considered off duty when he/she is allowed to leave a telephone number or electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius or the employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person. Id. ___ ----------- FOOTNOTE ENDS ----------- to drive, we will provide the next level of care for the patient." The agency considers claimant's duty station to be the MACH, Building 9200, Fort Benning, Georgia. During duty hours, claimant works on the fourth floor in the Department of Psychiatry. When on-call, claimant goes to the emergency room, which is located on the ground floor of the same building. The agency states that the same parking lot services the entire hospital; there is no difference in the commute for an employee going to the MACH's fourth floor or to the emergency room. On August 10, 1998, claimant submitted travel vouchers for local travel expenses using his POV for round trips between his residence and the MACH during assigned periods in July, September and November 1996, February through September and December 1997, and January and March 1998. Claimant explains the basis for his claim: When on-call for the Department of Psychiatry, I was regularly ordered to drive back and forth to the Emergency Room (ER) at various hours of the night and early morning . . . to engage in official Government business for the Department of Psychiatry and [MACH]. This was in addition to my normal work day, which starts at 8:00 AM and ends at 4:30 PM, and my usual commute trip to and from work at 8:00 AM and 4:30 PM Monday through Friday. . . . . I was repeatedly summoned and ordered to drive my POV back and forth to MACH to engage in official Government Business at times that were outside of, and in addition to, both my normal work hours and my usual commute time. The agency responds that the only suggestion about employee use of POVs was in the standard operating procedure regarding the steps to be taken if an on-call employee felt it was unsafe to drive. Statute entitles "an employee who is engaged on official business for the Government" to a mileage rate for use of a POV when that mode of transportation is authorized or approved as advantageous to the Government. 5 U.S.C. 5704 (a)(1) (Supp. II 1996). It is settled, however, that an employee's travel between his home and his permanent duty station is not official business of the Government; agencies therefore may not reimburse employees for mileage expenses for travel between these locations. John B. Courtnay, GSBCA 14508-TRAV, 98-2 BCA 29,791; Freddie G. Fenton, GSBCA 13638-TRAV, 97-1 BCA 28,711; see Forest Service Dispatchers--Standby Duty at Home, B-189742 (Dec. 27, 1978) (employees on standby duty at home not entitled to local travel expenses to permanent duty station, even when home is designated as duty station for standby purposes). Consistent with this rule, the JTR allows local travel expenses only between "a residence and place of business other than [the] office or duty point." JTR C2401-A.3. The Federal Travel Regulation (FTR) is in substance the same. 41 CFR 301-2.3. Claimant maintains that he is entitled to POV mileage because he worked hours beyond his "normal" work day, but that is irrelevant, since claimant regularly worked after-hours duty at his duty point.[foot #] 4 Claimant makes the second argument that the MACH emergency room was not his permanent duty station, but both respondent's and claimant's versions of claimant's position description state that the emergency room is a location within the MACH where claimant is expected to perform at least some of his duties; the agency properly considered the MACH building as claimant's permanent duty station. See Roger B. Sherry, GSBCA 14399-TRAV, 98-2 BCA 30,044 (both hangar and nearby office properly considered permanent duty station at FAA complex, claimant not entitled to local travel expense reimbursement for round trip between residence and hangar for one-day travel). We cannot conclude that the agency required claimant to travel to a location other than his permanent duty station. Claimant argues his supervisor directed him to use his POV to travel to the emergency room when in on-call status, and that he is entitled to reimbursement for that use. As noted above, however, statute provides for agency reimbursement of an employee's use of a POV only when engaged on official business of the Government. For those trips claimed on his vouchers, claimant was engaged in personal business and not on official government business. Claimant was thus not entitled to mileage for use of his POV between his residence and permanent duty station, regardless of how one interprets the language of the standard operating procedure. Finally claimant argues that the scope of his duties was wrongfully expanded from handling substance abuse patients to handling psychiatric patients, thereby hurting the substance abuse program. The scope of claimant's duties is not an issue ----------- FOOTNOTE BEGINS --------- [foot #] 4 Agencies may reimburse an employee for taxicab fares between the duty point and the employee's place of abode when an employee is dependent on public transportation; when the employee has been ordered to work outside of regular working hours; and when the travel is during hours of infrequently scheduled public transportation or darkness. JTR C2403. This provision applies to infrequent and sporadic work outside of regularly scheduled working hours. It does not apply to regularly scheduled on-call work, as was the case here. Carl P. _______ Mayer, B-171969 (Jan. 9, 1976). In any event, claimant does not _____ rely on this portion of the JTR to establish entitlement for commuting expenses. ----------- FOOTNOTE ENDS ----------- over which we have jurisdiction. See Charles M. Ferguson, GSBCA 14658-TRAV, slip op. at 2-3 (Feb. 19, 1999). Regardless of whether the agency rightly or wrongly expanded claimant's duties- -a matter we do not decide--both claimant and the agency acknowledge that after traveling to the MACH's emergency room when on-call, claimant performed official government business. The issue we decide is whether his local travel between his residence and his duty station is reimbursable under the JTR and FTR. We conclude it is not because travel between home and the permanent duty station is not government business as required by the JTR and FTR.[foot #] 5 The Board denies the claim. __________________________ ANTHONY S. BORWICK Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 5 We do not decide whether claimant may be reimbursed his claim under other authority if it should be determined that the agency erroneously expanded claimant's duties to cover psychiatric patients as well as substance abuse patients.