B-195374, SEP 14, 1979

B-195374, SEP 14, 1979

DIGEST: EMPLOYEE WAS INADVERTENTLY REMOVED FROM DEPARTMENT OF DEFENSE PRIORITY PLACEMENT PROGRAM FOR A PERIOD OF TIME AFTER HIS RIF. HE PRESENTS FACTS TO SHOW THAT REMOVAL FROM PROGRAM, WHICH WAS FOR PURPOSE OF JOB PLACEMENT AFTER RIF, MAY HAVE DELAYED HIS REAPPOINTMENT TO NONTEMPORARY POSITION FOR MORE THAN THE 1 YEAR PERIOD REQUIRED FOR REIMBURSEMENT OF RELOCATION EXPENSES UNDER FTR 2-1.5D(2). CLAIM FOR RELOCATION EXPENSES LACKS ELEMENTS OF UNUSUAL LEGAL LIABILITY OR EQUITY TO JUSTIFY REPORTING TO CONGRESS UNDER MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 236 (1970).

ROBERT GARCIA - RELOCATION EXPENSES - MERITORIOUS CLAIMS ACT:

THIS DECISION RESPONDS TO THE REQUEST OF ROBERT GARICA THAT HIS CLAIM FOR REIMBURSEMENT OF EXPENSES FOR RELOCATING TO HIS PERMANENT DUTY STATION WITH THE DEPARTMENT OF DEFENSE AT WHITE SANDS MISSILE RANGE, NEW MEXICO, BE REFERRED TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 236 (1970). BY SETTLEMENT CERTIFICATE NO. Z2745382, OCTOBER 24, 1978, OUR CLAIMS DIVISION DISALLOWED THE RELOCATION EXPENSES CLAIMED BECAUSE MR. GARCIA, SUBSEQUENT TO HIS REDUCTION-IN-FORCE, WAS NOT REEMPLOYED IN A NONTEMPORARY POSITION WITHIN 1 YEAR AFTER THE REDUCTION-IN -FORCE ACTION. CONSISTENT WITH 5 U.S.C. SEC. 5724AC), PARAGRAPH 2-1.5D(2) OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101, MAY 1973) AUTHORIZES PAYMENT OF RELOCATION EXPENSES WHERE AN EMPLOYEE SEPARATED BY REDUCTION-IN-FORCE IS REEMPLOYED WITHIN 1 YEAR FROM THE DATE OF SEPARATION. THE 1-YEAR LIMITATION MAY NOT BE DISREGARDED, EVEN WHERE THE AGENCY'S DELAY IN TIMELY PLACING THE EMPLOYEE ON ITS PRIORITY PLACEMENT REGISTER CONTRIBUTES TO HIS NOT BEING REEMPLOYED WITHIN THE 1-YEAR PERIOD. JACK BERNBAUM, B-186245, SEPTEMBER 22, 1976.

AFTER MR. GARCIA'S REDUCTION-IN-FORCE SEPARATION FROM HIS AIR FORCE POSITION IN BIRKENFELD, GERMANY, EFFECTIVE MAY 7, 1974, HE RETURNED TO DETROIT, MICHIGAN, AND WAS REGISTERED IN THE DEPARTMENT OF DEFENSE PRIORITY PLACEMENT PROGRAM FOR REFERRAL TO VACANCIES ARISING IN THE DEPARTMENT OF DEFENSE FOR WHICH HE WAS QUALIFIED AND AVAILABLE. HIS REGISTRATION AND JOB REFERRAL ELIGIBILITY UNDER THE PROGRAM EXTENDED FOR A PERIOD OF 1 YEAR FROM THE DATE OF HIS SEPARATION. HOWEVER, WHEN HE ACCEPTED A TEMPORARY APPOINTMENT ON AUGUST 28, 1974, WITH THE DEPARTMENT OF THE ARMY, HE WAS INADVERTENTLY REMOVED FROM THE LIST OF PERSONS ELIGIBLE FOR PLACEMENT UNDER THE PROGRAM. AFTER THE MISTAKE WAS DISCOVERED, HE WAS REREGISTERED IN THE PROGRAM FOR AN ADDITIONAL PERIOD IN ORDER TO GIVE HIM HIS FULL YEAR OF ENTITLEMENT TO PRIORITY JOB PLACEMENT. IN SEPTEMBER 1975, MORE THAN 1 YEAR AFTER THE DATE OF HIS SEPARATION BY REDUCTION-IN-FORCE, HE RECEIVED A NONTEMPORARY APPOINTMENT AT THE WHITE SANDS MISSILE RANGE, NEW MEXICO.

THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM BEFORE THE GENERAL ACCOUNTING OFFICE CANNOT LAWFULLY BE ADJUSTED, THE COMPTROLLER GENERAL MAY NEVERTHELESS RECOMMEND TO THE CONGRESS THAT LEGISLATION BE ENACTED FOR ITS PAYMENT. HE MAY SO REFER A CLAIM WHEN IN HIS JUDGMENT IT HAS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF CONSIDERATION BY THE CONGRESS.

IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE PROCEDURE PROVIDED BY THE MERITORIOUS CLAIMS ACT IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES. THE CASES REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY INVOLVE EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM. 53 COMP.GEN. 157 (1973) AND 54 ID. 1031 (1975). WE ARE AWARE OF OTHER CASES OF EMPLOYEES DENIED RELOCATION EXPENSES WHERE ADMINISTRATIVE INADVERTANCE MAY HAVE CAUSED THE EMPLOYEE TO EXCEED AN APPLICABLE TIME LIMITATION. UNFORTUNATELY, THE PROBLEM IS NOT AN UNUSUAL ONE. FOR EXAMPLE SEE B-186245, CITED ABOVE. WE DO NOT BELIEVE MR. GARCIA'S CASE PRESENTS ELEMENTS OF UNUSUAL LEGAL LIABILITY OR EQUITY WHICH WOULD JUSTIFY REPORTING THE CLAIM TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT.