166 F. Supp. 610 | Ct. Cl. | 1958
delivered the opinion of the court:
Plaintiff, a former civilian employee of the Navy Department, sues to recover the costs of certain transportation and other charges alleged to be due him on account of certain travel undertaken by himself and his dependent wife.
While plaintiff was employed at the Massachusetts Institute of Technology in 1946, he applied for appointment as a physicist in the London, England, branch of the Navy Department’s Office of Research and Inventions. He was advised in July that the London branch office was recommending his appointment and on July 9, 1946, the plaintiff informed that office that he would accept the appointment and that his services would be available from September 1, 1946. It was deemed desirable to utilize plaintiff’s services in the United States prior to the commencement of his duties overseas and accordingly he was given a personal service contract under which he was to perform temporary employment for the Federal Government which would involve travel from place to place in the United States at Government expense. In connection with plaintiff’s appointment to the London position in which he would serve for a minimum period of 18 months, a so-called employment agreement was prepared in Washington and dated September 24. It contained the following paragraphs with respect to authorized transportation:
19. You will report to the Air Transport Command Office, Washington National Airport, Wash., D. C., for the necessary transportation via ATC plane leaving Wash., D. C. on 4 October 1946 for Paris, France. Priority Number APR-3-409068-USN-OCT has been assigned you for this travel.
20. The Office of the Naval Attache, Paris, France will furnish you the necessary Government Air Trans*665 portation from Paris, France, to London, England and will note same herein.
21. You will be allowed 65 pounds baggage on board Government plane.
Under the authority of the Secretary of the Navy.
The above employment agreement, or letter of appointment, was never actually handed to the plaintiff but he seems to have known of its existence.
The Employment Branch, Office of Industrial Eolations (OIE) in Washington, D. C., had the responsibility for processing plaintiff’s appointment to the London position and issuing the necessary travel orders. Although the record is not entirely clear on this point, there appears to have been some feeling on the part of the Government officials that plaintiff’s presence in England as early as October was desirable, if not necessarily urgent, and accordingly, since no reservation for travel on a Government ship was available earlier than November 14 or 15,1946, the employment branch office decided to secure reservations on a Government airplane for the plaintiff early in October, and the order to travel by air under a specified priority was included in the above mentioned employment agreement covering plaintiff’s London appointment.
While plaintiff was engaged in performing temporary duties for the Government in September of 1946, he was notified that a reservation had been made for travel to London by Government air transportation on October 1, 1946. Plaintiff was ill at the time he received such notice and he advised the proper officials in Washington that he would be unable to fly to London at that time. Another reservation by air transportation was made for plaintiff involving departure on October 4,1946, and plaintiff again advised the Washington officials that he still did not feel able to undertake air transportation. At that time plaintiff was present in Washington and suggested to the official in charge, a Mr. Weaver, that he was willing to go to England by commercial vessel if the Government would arrange to reimburse plaintiff for so much of the transportation as would have been in excess of the expense to the Government of sending plaintiff by Government vessel. Plaintiff was ad
Schremp refused Govt trans via air — says he’ll pay his own way — commercial—so he is going without orders & will be appointed when he gets there — has been promised commercial boat around 4 Nov 1946 — had 2 cancel 2 plane reservations in his case
If the employment agreement had not been so canceled, the agreement, or appointment letter, would have been handed to the plaintiff and would have constituted authority for travel. Despite the fact that plaintiff may not have been told of the cancellation of the agreement, or letter of appointment to the London position, he does not deny the fact that he never received such an agreement or letter prior to his departure for England.
On October 24, 1946, plaintiff filed a memorandum directed to the personnel officer requesting that his personal service contract covering the temporary duties on which he had been engaged for the Government in the United States be canceled as of the close of business on October 31, 1946, and stating that he was sailing on November 1 in order to accept an appointment in the London branch office of the Navy Department’s Office of Research and Inventions. On that same day plaintiff was given travel orders authorizing travel under the personal service contract covering duties in the United States and authorizing travel by the plaintiff to various cities ending at New York City. Paragraph 1 (b) of these orders read as follows:
*667 These orders will be terminated in New York City, New York at the time of your embarkation to London, England to accept an appointment with the Navy there. [Italics supplied.]
On November 1, 1946 plaintiff sailed for England on the lie de France, a French vessel. At that time the plaintiff was not in the employ of the United States under either the temporary personal service contract or under the contract for employment in London. Furthermore, there were not then in existence any written travel orders authorizing plaintiff’s travel to London in November, 1946. Accordingly, plaintiff paid for his own passage and for the transportation of his automobile. Upon plaintiff’s arrival in England he reported to the Naval Attache who telegraphed the Assistant Secretary of Navy in Washington to the effect that plaintiff had arrived with no orders from the Office of Industrial Relations and requesting advice as to whether or not his salary should be effective on the date of his departure from New York or upon the date of his reporting in London on November 8. Subsequently a reply from Washington advised the Naval Attache that the plaintiff’s appointment should be handled in London effective on the date he reported for duty in London. Plaintiff was appointed on November 18 to the London position and the appointment was made effective retroactively to November 8, 1946. The appointment was made on the understanding that plaintiff would serve for a period of 18 months, or such part of that period as his services might be required.
On June 8, 1948, the plaintiff requested the assistance of the Assistant Naval Attache for Research in London in securing reimbursement for his transportation from New York to London in 1946. His written request was forwarded to the Chief of Naval Research in Washington who denied the request on the ground that plaintiff was not an employee of the Navy Department, under contract or otherwise, at the time he departed from New York for London in 1946 and that accordingly it could only be concluded that his travel was performed on his own initiative and was not the responsibility of the Navy Department. By this time
On June 22, 1948, plaintiff requested, in writing, 20 days sick leave to begin on July 2 and end on August 1 for the stated purpose of having a physical examination by his personal physician in the United States. Permission was granted, but with the qualification that at the completion of plaintiff’s leave on August 2, 1948 he should report back to the London office to resume his regular duties. Accompanied by his wife (an English woman whom he had married in 1947 in England), plaintiff returned to the United States aboard the United States Lines’ 88. America■, which arrived in New York on July 8.
While on sick leave in the United States, plaintiff wrote to the Assistant Naval Attache for Research in London stating that he would like to continue his work with the London branch office if the work could be performed on the Continent rather than in London, and that if this could not be done, he asked that his employment be terminated on August 1,1948. On August 4,1948', plaintiff was advised by a London official of the Navy Department that his request to continue his work from a Continental base could not be complied with and that his contract was being terminated. Apparently some differences of opinion had existed for sometime between the plaintiff and the London official in question, although the value and excellence of plaintiff’s services were never questioned by that official or by the Navy Department.
On August 27,1948 plaintiff’s employment for the London office was terminated effective at the close of business on that day.
Plaintiff’s original claims have been reduced to the following: (1) Reimbursement for his own boat passage from the United States to England in 1946, and for the return passage in 1948 for himself and for his wife in 1948; (2) reimbursement for baggage costs incurred and paid by plaintiff for transportation and passage between Southampton and London, and return, and from New York to Hyannisport, Massachusetts in 1948, and (8) reimbursement for transportation between London and Southampton and between New York and Hyannisport, Massachusetts in 1948. Plain
Appropriations for the departments shall be available, in accordance with regulations prescribed by the President, for expenses of travel of new appointees, expenses of transportation of their immediate families and expenses of transportation of their household goods and personal effects from places of actual residence at time of appointment to places of employment outside continental United States, and for such expenses on return of employees from their posts of duty outside continental United States to the places of their actual residence at time of assignment to duty outside the United States: Provided, That such expenses shall not be allowed new appointees unless and until the person selected for appointment shall agree in writing to remain in the Government service for the twelve months following his appointment, unless separated for reasons beyond his control. [Italics supplied.]
If plaintiff had been a “new appointee” at the time he departed from New York to England in 1946, he would have been entitled to be reimbursed for the cost of his transportation to England in 1946 and to the cost of the transportation of himself and his wife from England to the United States in 1948. It is defendant’s contention that under the facts in this case plaintiff was not a new appointee nor an appointee at all at the time of his departure from New York on November 1,1946, nor was he in possession of any valid written or verbal authorization to travel at Government expense. The facts of record bear out the contention of defendant that plaintiff was not an appointee to a Government position at the time he undertook the journey to London from New York in November of 1946.
As to whether or not plaintiff had valid verbal authorization to travel to London in 1946 at Government expense, there is some dispute as to whether plaintiff had verbal orders directing him to proceed to England by way of commercial
7. Approval — Whenever travel has been performed and expense incurred on account of an emergency or without prior authority,1 the travel voucher must be approved by the head of the department or independent establishment, or by an official designated by him for this purpose, and such approval shall constitute the authority for the travel. * * *.
We are of the opinion that the above regulation does not support the plaintiff’s contention that he was traveling under valid verbal authority. While it is true that under the language of that regulation written travel orders prior to the time the travel is performed is not a necessary condition to reimbursement, subsequent approval by some responsible official of verbal travel orders must be secured and such subsequent approval was not obtained in the instant case. Although, as pointed out by plaintiff, his travel to London in 1946 resulted in a benefit to the defendant, that fact does not impose upon the Government an obligation to reimburse the plaintiff for the cost of his transportation which was never authorized or approved by the Government, nor in fact required by the Government. In the Maskal case, supra, relied on by the plaintiff, a warrant machinist in the United States Navy, was required to travel without written orders in 1942. A year later, however, the verbal authorization for such travel was approved by the Chief of Naval Personnel and the court held that because the verbal travel orders were later approved in accordance with paragraph 3, Article 2508, U. S. Navy Travel Instructions, the warrant machinist was
Plaintiff also relies on a statement appearing on his special passport issued by the State Department in connection with his travel to London, The statement in question was “is proceeding to the British Isles on official business for the Navy Department.” We are unable to agree with plaintiff that the issuance of this passport, and its use by the plaintiff, supports his position that he was proceeding to London under official orders.
We have been unable to find any statute or regulation, and none have been called to our attention, which permits or requires that a person whose appointment is made outside the Continental United States, be paid for the expense of travel and transportation to and from the United States in connection with such overseas appointment. We therefore conclude that plaintiff is not entitled to recover. In view of this disposition of the case, it is unnecessary to discuss the other defenses of the Government, including the partial defense of the Statute of Limitations. Plaintiff’s petition will be dismissed.
It is so ordered.
FINDINGS OF FACT
The court having considered the evidence, the report of Commissioner William E. Day, and the briefs and arguments of counsel, makes findings of fact as follows:
1. The plaintiff, Edward Jay Schremp, is a citizen of the United States and a resident of Alexandria, Virginia. In 1946 he was employed by the Navy Department. The circumstances concerning such employment will be detailed in later findings. He sues here for the cost of transportation of himself and dependents as well as his personal effects to England and return to the United States, as well as salary and overseas allowance for a short period.
3. On May 2, 1946, the plaintiff had executed Form 57, Application for Federal Employment, and sent it with a letter of transmittal addressed to Lt. W. L. Clark, III, USNE, Main Navy Building, Washington, D. C. The letter states in part as follows:
In accordance with our conversation with Dr. Mac-Neille in Cambridge last week, I have filled out in triplicate and am enclosing application forms No. 57, for the opening in the London branch of the OEI.
* * ❖ ❖ iji
He also inquired as to the approximate date upon which a decision might be reached concerning his application.
4. On June 7, 1946, the plaintiff wrote to Dr. H. M. Mac-Neille, OEI, Main Navy Building, Washington, D. C., inquiring concerning developments in connection with his application. On July 2, 1946, H. M. MacNeille, Scientific Director, London Branch Office, OEI, wrote to the plaintiff from Washington stating as follows:
We are ready to recommend your appointment as a physicist, P-6, in the London Branch Office.
The salary in this position including the overseas differential in pay is $8,877 per annum. In addition to this there is a housing allowance of $900 per annum for a married man.
Provided you are prepared to accept this appointment, this Office understands that your services are available approximately 1 September 1946.
Would you let us know whether you will accept this appointment, and if so, confirm the availability date?
5. The plaintiff replied by letter of July 9, 1946, stating that he would be pleased to accept the appointment, and that he expected to be married prior to the commencement of the appointment. The letter states in part as follows:
*673 My full time services will be available commencing September 1, 1946. However, before September 1 certain days would be available for service in the Boston area. Therefore, if no minimum time of service is specified, my initial contract for service in the U. S. could commence immediately if you so desire.
6. On August 6, 1946, OBI sent a letter to the plaintiff enclosing forms for execution by the plaintiff in connection with a personal service contract which was in the nature of an arrangement for temporary employment pending later appointment for overseas duty, including some indoctrination. The letter is quoted in part as follows:
Your contract is to be made effective the 1st of September. It will continue through November 15, in the event of an unforeseen delay. This contract is an intermittent personal service contract and allows a maximum of 20 working days a month. You are paid only for the actual number of days of work at a per diem of $30.00. This per diem is about the average daily rate of a P-6 employee within the continental limits of the United States.
Your attention is called to the conditions on the reverse of the personal service contract form. It is also suggested, should you have any questions concerning your rights and obligations under this contract, that you consult the Personnel Officer at any Naval activity in the Boston area, or communicate with us directly if you prefer.
It is anticipated that the contract will be approved by the Navy Department, but since this Office can make no Commitments to you until the contract has actually been signed by the Secretary, you are advised to await confirmation by this office that the contract has been signed. (The matter should be settled within the next few weeks, and it is hoped that we can notify you before 1 September, the date of your contract.)
In the meantime, this Office is processing your London appointment. Dr. MacNeille requested your sailing date approximately 15 October. The Office of Industrial Delations, Navy Department, will get in touch with you in reference to your- London appointment.
If other questions arise, be sure to inform this office. We await your completed forms, and shall process them as soon as possible.
7. On August 7, 1946, Commander E. D. Killian, USN, Head, Employment Branch, Office of Industrial Relations, Washington, D. C., sent the following naval speedletter by air mail to the plaintiff:
YOU HAVE BEEN RECOMMENDED TO FILL THE POSITION OF PHYSICIST P-6 $8877.75 PER ANNUM IN THE OFFICE OF THE ASSISTANT NAVAL ATTACHE FOR RESEARCH LONDON ENGLAND X IT IS REQUESTED THAT YOU EXECUTE ATTACHED MEDICAL CERTIFICATE IN DUPLICATE AND FINGERPRINT CHART AND YOUR WIFE EXECUTE ATTACHED MEDICAL CERTIFICATE IN DUPLICATE FORWARDING SAME TO THE DEPARTMENT ATTENTION OIR CODE 288 X A PASSPORT IS NECESSARY TO LEAVE THE UNITED STATES UNDER APPOINTMENT TO ENGLAND X IT IS SUGGESTED THAT YOU CONTACT THE CLERK OF THE NEAREST U S COURT FOR NECESSARY ARRANGEMENTS FOR YOU AND YOUR WIFE AND ADVISE THE DEPARTMENT ATTENTION OIR CODE 288 WHEN YOU HAVE OBTAINED SAME X IT IS ALSO REQUESTED THAT YOU OBTAIN A RELEASE FROM YOUR LOCAL DRAFT BOARD THAT NO OBJECTION IS INTERPOSED TO YOUR EMPLOYMENT OUTSIDE CONTINENTAL LIMITS OF UNITED STATES AND FURNISH DEPARTMENT WITH SAME X IT WILL BE NECESSARY FOR YOU AND YOUR WIFE TO HAVE IMMUNIZATION SHOTS AGAINST SMALLPOX X TYPHOID AND TETANUS
On August 21,1946, the plaintiff was requested by a similar speedletter to expedite submission of forms and information requested in the above quoted speedletter as follows:
*675 EXPEDITE SUBMISSION FORMS AND INFORMATION REQUESTED IN DEPARTMENT’S SPEEDLETTEE OF 7 AUGUST IN CONNECTION WITH YOUE APPOINTMENT AS PHYSICIST P-6 $8877.75 PEE ANNUM IN THE OFFICE OF THE ASSISTANT NAVAL ATTACHE FOE RESEARCH LONDON ENGLAND
On August 24, 1946 the plaintiff acknowledged the speed-letters enclosing a permit from his draft board to depart from the United States,, and stating that submission forms, passport application and inoculations would be completed immediately upon his return to Boston from Hyannis Port, Massachusetts, “early next week.”
8. On August 12, 1946, Lieutenant (jg) Price, of the Bureau of Naval Personnel, Records Activity, by direction of the Chief of Naval Personnel, sent to the plaintiff application blanks and instructions for use in applying for passport to London, England, “where you have been assigned to duty in the Office of the Assistant Naval Attache for Research.”
9. Travel orders were issued to the plaintiff, as a contract employee, by letter of September 10, 1946, by which he-was directed to proceed on or about September 11, 1946, by rail from Boston, Massachusetts, to Washington, D. C., “where you will assume regular duties prior to your transfer to the Office of Naval Research in London, England”. Such travel orders in paragraph 3 state as follows:
3. You are hereby directed to perform any travel in connection with your official duties via Naval Air Transport Service, and/or any available government transportation when practicable.
10. Pursuant to such travel orders, the plaintiff left Boston and arrived in Washington, D. C., on September 19, 1946, reporting for duty at the Navy Department that day.
11. On September 12,1946, a Special Passport was issued by the State Department for use by the plaintiff. It is therein stated that the bearer “IS PROCEEDING TO THE BRITISH ISLES ON OFFICIAL BUSINESS FOR THE NAVY DEPARTMENT”. It is also stated that “This Special passport is valid only for travel in the countries designated and in connection with, and for the duration of,
12. On the evening of September 16, 1946, the plaintiff received the following telegram from the Assistant Secretary of the Navy:
WIRE WHETHER WILLING TO FLY BY GOVERNMENT PLANE 3 OCTOBER X FAMILY TO BE SENT LATER BY GOVERNMENT BOAT
The plaintiff did not promptly respond to this request for advice but he did as shown in finding 10 report to the Navy Department on the morning of September 19,1946.
13. The plaintiff remained in Washington on temporary duty from September 19 to September 25, 1946. He had, on September 24, been issued, as a contract employee under the personal service contract, temporary duty orders for travel to Princeton, New Jersey, then to New York City, then to Boston, Massachusetts, in connection with review of research projects prior to departure for London. He left Washington on the morning of September 25 and spent a day at Princeton, and a few hours in New York City, then proceeded to Boston arriving on the morning of September 27 where he remained until October 3,1946.
14. Between September 19 and September 24, 1946, the plaintiff had had discussions with Robert W. Weaver, Assistant Personnel Officer at ORI, as well as with subordinates in such office, concerning his appointment to the position in London, as well as the means of travel to that place. The plaintiff said that he wanted to proceed by ship and particularly by either the Queen Mary or the lie de France (neither of which was an American ship). Mr. Weaver, who knew of the unanswered telegram to the plaintiff - asked the plaintiff for an answer to the question of whether he would be willing to fly by Government plane. The plaintiff told him in effect that he would do so though unwillingly. Mr. Weaver testified at the trial, and his testimony is accepted, that it was routine in his office to authorize travel by Government ship. At the time of the conversation, however, no reservation for travel by Government vessel was possible earlier than November 14 or 15 due to earlier reserva
15. While in Boston on temporary travel status, the plaintiff sent the following telegram dated September 30, 1946 to Dr. Killian or Dr. Waterman of OKI:
ILL WITH GKIPPE UNABLE TO LEAVE FOK ENGLAND TUESDAY. IF NO TRANSPORTATION IS AVAILABLE EARLY IN OCTOBER VIA GOVERNMENT BOAT I WOULD PAY EXTRA EXPENSE FOR PASSAGE VIA COMMERCIAL BOAT. IS THIS AGREEABLE TO YOU
16. On the evening of October 2, 1946, the plaintiff received a telegram from the Assistant Secretary of the Navy stating that space had been obtained on a Government plane leaving Washington, D. C., on October 4 (for London), requesting that he telephone a certain office at the Navy Department as to whether he could leave at that time. Upon receipt of the telegram referred to above, the plaintiff telephoned to the office to which he was referred (Mr. Weaver’s office) and spoke to a Miss Johnson, an assistant. He said that he did not wish to travel by Government air transportation and that he did wish to travel by commercial ship. He was told that no funds were available to pay for commercial ship transportation and that if he went to London by commercial ship “he would be on his own” and further that he would be appointed to his position at the London office not from Washington, D. C., where he was stationed on temporary duty. Mr. Weaver then took the telephone from Miss Johnson and told the plaintiff that commercial ship transportation could not be authorized.
The plaintiff left Boston on the evening of October 3,1946, by rail and reported to the Navy Department on October 4, under travel orders as a contract employee under the personal service contract. He again spoke to Mr. Weaver telling him that he was going to take commercial transportation.
17. In the meantime the Office of Industrial Relations had prepared what is called an “employment agreement” but which appears from examination to be a letter of appointment, together with written travel orders. It was dated September 24, 1946, and was addressed to the plaintiff but
# $ H« * *
10. Your retention in the service is contingent upon your good behavior and satisfactory service. The rate of pay under which you are hereby appointed is subject to such readjustment as may occur at any time during the period of your employment incident to the promulgation of a revised schedule of wages for the Naval Establishment, or by law. Should you vacate this position without authority, be discharged for cause, or should your resignation be accepted before the expiration of eighteen months or such part thereof as your services may be necessary, from the date of departure from the United States, you will be required to reimburse the Navy Department for the cost of transportation and traveling expenses, and you will not be furnished return transportation to the United States. Upon the completion of the above-mentioned service, or as soon thereafter as practicable, you will be furnished transportation to the place from which appointed, and allowed travel time enroute from London, England to coast of U. S.
11. Should your health become so impaired through no fault of your own during the period of this employment as to justify the head of the establishment to recommend your return to the United States, based upon examination and report of a medical officer of the Navy, you will be returned at the expense of the Government.
12. On your return trip you will be allowed transportation and subsistence in accordance with the provisions of references (a) and (b).
18. You will execute the attached required Standard Form 61a and FBI “Fingerprint Chart,” and deliver them, together with the attached copy of “Medical Certificate,” Form 2413, executed in your case, to the head*679 of your activity, to whom you will report immediately upon your arrival.
‡ ^ ‡ ^
19. You will report to the Air Transport Command Office, Washington National Airport, Wash., D. C., for the necessary transportation via ATC plane leaving Wash., D. C. on 4 October 1946 for Paris, France. Priority Number APE-3-409068-U8N-OCT has been assigned you for this travel.
20. The Office of the Naval Attache, Paris, France will furnish you the necessary Government Air Transportation from Paris, France, to London, England and will note same hereon.
21. You will be allowed 65 pounds baggage on board Government plane.
Under the authority of the Secretary of the Navy.
As a result of the discussions had between the plaintiff and Mr. Weaver, on October 4, 1946, Mr. Weaver notified the Office of Industrial Eelations to cancel the “employment agreement”. It was so canceled with the notation:
Schremp refused Govt trans via air — says he’ll pay his own way — commercial—so he is going without orders & will be appointed when he gets there — has been promised commercial boat around 4 Nov 1946 — had 2 cancel 2 plane reservations in his case
Had the “employment agreement” not been canceled, the original letter would have been handed to the plaintiff and it would have constituted his authority for travel. Although the plaintiff insists that he was not told of the cancellation, it is a fact known to him that he was not given the “employment agreement” nor any letter of appointment or travel orders to England.
18. The record is not entirely clear concerning the plaintiff’s activities between October 4 and October 24, 1946, but on that day he signed a memorandum to the personnel officer requesting that his personal service contract be canceled at the close of business on October 31,1946, stating that he was sailing on November 1 to accept an appointment at the London Branch Office, and stating further that his temporary duty from October 25 through October 31 would be terminated at New York City.
These orders will be terminated in New York City, New York a the time of your embarkation to London, England to accept an appointment with the Navy there. [Italics supplied.]
19. The plaintiff departed New York on November 1,1946, on the lie de Frame, a French vessel. He paid for his passage as well as for the transportation of his automobile. After plaintiff’s arrival in England, the Naval Attache’s office sent the following telegram to the Assistant Secretary of the Navy, Washington, D. C.:
FOE OIR X DE EDWARD JAY SCHEEMP CONTRACT EMPLOYEE NPS 3793 ONE EXOS PROCURED OWN TRANSPORTATION VIA ILE DE FRANCE AND LEFT NEW YORK ONE NOVEMBER ARRIVED SOUTHAMPTON AND LONDON EIGHT NOVEMBER X REPORTED ASTALUSNA RESEARCH SAME DATE FOR ORIGINAL APPOINTMENT EXCEPTED STATUS PHYSICIST P DASH SIX SALARY 8877.75 MARITAL STATUS SINGLE LIVING ALLOWANCE QUARTERS HEAT FUEL AND LIGHT 600 PER ANNUM X DR. SCHREMP HAS NO OIR ORDERS ONLY ORDERS HIS POSSESSION ISSUED BY ADMINISTRATIVE OFFICE EXOS DATED 24 OCT REFERENCING ONR LTR 23 OCT X BERFORE [sic] ISSUANCE APPOINTMENT REQUEST DES-PATCH REPLY WHETHER SALARY EFFECTIVE DATE OF DEPARTURE NEW YORK CITY ONE NOV OR DATE REPORTING LONDON EIGHT NOV
In reply the Naval Attache was advised that the plaintiff’s appointment should be handled locally effective the date he entered on duty in London.
20. The plaintiff was appointed on November 18, but effective November 8, 1946, by an excepted appointment by the Naval Attache to a position as physicist P-6, $8,877.75 per annum. At the bottom of the personnel action wherein the appointment was effected, there is the statement:
*681 This appointment is made on the understanding that yon will serve in the office of the TI. S. Naval Attaché (Office of Assistant Naval Attache for Research) for a period of eighteen months or such part thereof as your services may be required.
21. The plaintiff on June 8, 1948, wrote a memorandum addressed and sent to the Assistant Naval Attaché for Research (in London) requesting the assistance of that official in having the Navy Department
* * * establish the fact that the writer was ordered to proceed to the British Isles on official business for the Navy Department, and that this travel was performed by the writer in compliance with such orders.
22. The above-mentioned memorandum was forwarded to the Chief of Naval Research (in Washington) on June 17, 1948, by endorsement No. 1, signed by Captain J. P. Clay, Assistant Naval Attaché for Research, quoted in part as follows: .
$ $ ^ ‡ $
1. Forwarded for consideration and reply in the premises.
2. The following facts based on official records are submitted:
(a) Reference (a) constituted employment agreement and travel order authorization for Dr. Schremp to proceed from the United States to London, England and is filed in his official jacket. Across its face is written in pencil “Cancelled”, with the notation also in pencil, “He refused government air transportation”.
(b) The status of Dr. Schremp’s reporting to the Naval Attaché without effective Navy Department orders on 8 November, 1946 is stated in reference (b). In compliance with reference (c) Dr. Schremp was processed locally effective the day he entered on duty in London, 8 November, 1946, and his salary paid him from that date. Enclosures (A) and (B) are forwarded for ready reference.
(c) NAVEXOS 1200 issued to Dr. Schremp dated 18 November, 1946, .effective date 8 November, 1946, contains the following statement in the Remarks column:
“This appointment is made on the understanding that you will serve in the Office of the U. S. Naval Attaché (Office of Assistant Naval Attaché for Research) for a period of eighteen months or such part thereof as your services may be required.”
*682 3. In view of paragraph 2 above, information is also requested as to whether American citizen employees processed for employment in London are entitled to return transportation and shipment of household effects for themselves and their immediate dependents at government expense upon completion of 18 months’ service. Dr. Schremp has completed 18 months’ service and is scheduled to be returned to the United States with his dependent wife. No employment agreement exists in his case except for the statement contained in NAYEXOS 1200 in paragraph 2 (c) above.
4. It is the opinion of this office that the statement in paragraph 2 (a) above is valid evidence that Dr. Schremp refused government air transportation offered and should under no circumstances be reimbursed for travel to Europe. It is noted that such travel was performed by Dr. Schremp on his own initiative and without proper authority.
23. On June 22, 1948, the plaintiff requested, in writing, 20 days’ sick leave from July 2 to August 1, 1948, for the purpose of having a thorough physical examination by his personal physician in the United States. The request was concurred in by a medical officer at Headquarters Dispensary. By written endorsement dated June 25,1948, the Naval Attache approved the request but with the following conditions :
* ^ * * *
2. At the completion of subject leave on 2 August 1948, you will report back to the Office of the Assistant Naval Attache for Research, London, England, to resume your regular duties.
3. Under no circumstances will the above leave be extended without prior approval of the Assistant Naval Attache for Research, London.
‡ ‡
24. Before leaving London on July 2, 1948, the plaintiff had had discussions with Captain Clay concerning differences between himself and the captain as to the terms upon which employment by the plaintiff might be continued beyond 18 months. The plaintiff had insisted that he be permitted to pui’sue his activities from a center of operations .on the Continent to which apparently Captain Clay was quite opposed.
26. While on sick leave at Hyannis Port, Massachusetts, the plaintiff, on July 23,1948, wrote to the Assistant Naval Attache for Besearch in London pressing the position taken by him in discussions with that office that he would like to continue work with the London branch of that office from a center of operations on the Continent rather than from London. In the event Captain Clay was not persuaded by his views, the plaintiff suggested that termination of his employment, if made effective August 1, 1948, be followed by an arrangement whereby the results of his overseas experience might be made available to the Office of Naval Be-search in Washington.
On July 24,1948, a copy of the letter referred to. above was sent to Dr. A. T. Waterman, Deputy and Chief Scientist, Office of Naval Besearch, with a letter of transmittal stating in effect that if no mutually satisfactory arrangement could be reached, the plaintiff would be obliged to resign.
27. On August 3, 1948, the Assistant Naval Attache for Besearch in London sent a telegram to the Office of Naval Besearch in Washington notifying that office that the plaintiff had not reported for duty on August 2 as directed, that two weeks’ temporary duty at ONB in Washington was authorized only if requested by ONB, otherwise the plaintiff’s services would be terminated due to completion of contract August 2,1948.
On August 4, 1948, Captain Clay sent the plaintiff the following letter:
Your letter of 23 July has been received, and in view of the qualifications upon which you wish to base any future employment with ONB, we have felt it necessary to terminate your contract.
As I have advised from time to time, we are heartily in favor of as much continental liaison work as is practicable and necessary, within the means of our personnel and funds available. However, definite promises either*684 verbal or written to employees of the organization have in the past created much confusion, misunderstanding, and subsequent sense of injustice, that we do not feel that such precedents should be set, i. e. the employee specifying how, when, and where he shall work. Such a plan might be more feasible with a larger number of officers.
We all in London assure you that we understand and appreciate your sincerity of purpose as well as your very good performance of duty for this organization. The fact that we are terminating the contract is simply due to an honest difference of opinion.
I have sent a dispatch to ONE yesterday requesting that they pass a copy of the dispatch to you, so no doubt you have been informed by this time of the decision. We also authorized two weeks employment in Washington at ONE if they so desired.
Please extend my best wishes to Mrs. Schremp, and accept on behalf of all of us in London our best wishes for your own continued personal success.
28. Dr. Waterman on August 12,1948, wrote to the plaintiff as follows:
I returned from a trip to the West Coast to find your letter of 24 July which discusses the status of your employment with the Office of Naval Eesearch. I am pleased to hear that you are interested in continuing in work with this Office.
As you undoubtedly already have heard, we have arranged for you to report to this Office for a period of two weeks. During that period we shall have an opportunity to discuss with you the possibility of continuing in the Office of Naval Eesearch.
29. On August 27,1948, the Naval Attache terminated the plaintiff’s services effective at the close of business that day pursuant to the authority of a telegram received that day from the Office of Naval Eesearch in London. There appears under “Eemarks” on the personnel action the following:
Termination through Separation due to completion of contract and completion of Temporary Duty in the Office of Naval Eesearch, Navy Department, Washington, D. C., Close of Business 27 August 1948, with Lump Sum Payment through 0930 29 September 1948. Last day at duty station 1 July 1948, and cost of living allowance paid to that date inclusive. Authorized sick leave status 7/2/48 through 8/1/48. Annual leave status*685 8/2/48 through. 8/16/48. Temporary duty status 8/17/48 through 8/27/48. Quarters allowance paid to 81 July 1948, inclusive.
30. On November 3, 1948, the Director, Personnel Division, ONE, at Washington, replied to the plaintiff’s letter of June 8,1948 (see finding 21), as follows:
*****
1. Enclosed herewith are your travel orders of 18 August 1948 in order that you may make proper claim for reimbursement.
2. This Office concurs with the opinion of the Assistant Naval Attache for Eesearch expressed in paragraph 4 of endorsement 1 of reference (a). The records of this Office indicate that your original employment agreement, prepared by the Office of Industrial Delations and dated 24 September 1946, was cancelled due to your refusal to accept government air transportation and that you performed travel via a French steamship line completely on your own initiative and without proper authority. Your attention is called to the fact that in making verbal arrangements with this Office, you agreed to accept government air transportation and reservations were made for you. Your records also show a notation by Miss Alice Eitter of OIE dated 4 October 1946 as follows: “Schremp refused government transportation via air— says he’ll pay his own way — commercial—so he is going without orders and will be appointed when he gets there — has been promised commercial boat around 1 November 1946- — had to cancel two plane reservations in his case.”
3. Section 7 of the Act of Congress of 2 August 1946 authorized the payment of expenses of travel of new appointees from places of actual residence at time of appointment to places of employment outside continental United States and return. As you were appointed to your position in London, it is the opinion of this Office that no authority exists for payment of your transportation from the United States to London, England and return.
4. You may, however, if you so desire, submit a travel claim for reimbursement of your travel to London and return to the Navy Central Disbursing Office, Washing1-ton, D. C. The NCDO will of course, forward this claim to the General Accounting Office for consideration. If this is done, it is suggested that the claim referred to in paragraph 1 above be combined with this claim. Other*686 wise, tbe claim referred to in paragraph 1 above may be submitted separately and will be paid by the NCDO.
By direction of Chief, Naval Research:
The reference in paragraph 1 of the quoted letter refers to temporary travel to Washington in connection with the two weeks’ temporary duty granted plaintiff prior to his termination.
31. On October 3,1950, the plaintiff filed a claim for reimbursement for overseas travel with the Navy Central Disbursing Office in the sum of $2,400.97, together with interest. This claim apparently became lost or mislaid and on August 28, 1951, a copy of it with a letter of transmittal was sent to the Claims Division of the General Accounting Office. There was approved by the Comptroller General the payment of $124.00 which was included in the claim incident to the travel on temporary duty between August 15 and August 29, 1948. Plaintiff was sent a check in this amount on or about October 15, 1952, which he continues to hold. The balance of the claim was denied by the Comptroller General.
32. In this action plaintiff is seeking:
(1) Reimbursement for his mother’s passage from New York to London and return.
(2) His wife’s passage from London to New York.
(3) The cost of transporting his private automobile to and from England, including the cost of marine insurance on that automobile.
(4) Baggage charges and reimbursement for automobile transportation between Southampton and London and return, and between New York and Hyannis Port, Massachusetts.
(5) Salary for a week that would have come into existence had he been retained in a duty status for his return trip between July 2-9, 1948, instead of having to take sick leave during that time.
(6) Salary for the week of November 1-8,1946, when he was aboard the lie de France on his way to London.
33. At no time prior to his departure in 1946 did plaintiff ever claim to have a dependent mother, nor did he ever indicate to any Navy official that he planned to take his mother to London with him. There were certain forms requiring
34. When plaintiff left for London in 1946 his mother remained in her Boston apartment. The furniture also remained there. Plaintiff’s mother retained this apartment throughout the period from November 1946 through July 1948.
35. In July 1947 plaintiff’s mother traveled to London. Her return ticket was purchased in August of 1947. There was no intention that she was to remain permanently in London and make her home with plaintiff. She retained her Boston apartment, continued to pay rent on it during her visit to London, and returned to that apartment on her arrival back in the United States in November 1947.
36. Plaintiff has failed to prove that his mother was dependent upon him.
37. During the period relevant here, the Navy never transported employees’ automobiles overseas via commercial transportation. Automobiles were shipped only on Government vessel, if and when space was available.
38. Although plaintiff claims to have traveled from Southampton to London via Navy vehicle in November 1946, he is seeking five cents per mile for that trip. He is claiming this mileage for the reason that his private automobile had not cleared customs at that time and he had to return the next weekend and drive it to London.
39. For the period during which he was on sick leave in July 1948 plaintiff has been paid. However, he claims that if the Navy had retained him in a duty status for his return trip to the United States, he would not have been forced to use his sick leave in order to remain on the payroll for this period. He would have taken sick leave in London. This he claims would have resulted in the termination of his employment one week later than the date on which it was terminated and given him another week’s salary.
40. Plaintiff’s last day of duty in London was July 1,1948, and his cost of living allowance was paid to that date, inclusive. He was in a sick leave status from July 2, 1948, through August 1,1948. He was carried in an annual leave status from August 2, 1948, through August 16, 1948. The
CONCLUSION OP LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiff is not entitled to recover and the petition is therefore dismissed.
Authority is defined in Section 1-5, Standardized Government Travel Regulations, as amended, January 30, 1942, as follows:
“Form of authority — All travel shall be either authorized or approved in writing by the head of the department, or by an official to whom such authority has been properly delegated.”