B-182716, MAR 11, 1975, 54 COMP GEN 747

B-182716, MAR 11, 1975, 54 COMP GEN 747

TRAVEL EXPENSES - FIRST DUTY STATION - MANPOWER SHORTAGE - RELOCATION EXPENSES FORMER EMPLOYEE APPOINTED TO MANPOWER SHORTAGE POSITION WHO WAS AUTHORIZED REIMBURSEMENT FOR EXPENSES OF SALE AND PURCHASE OF RESIDENCE, TEMPORARY QUARTERS SUSBSISTENCE EXPENSES, AND PER DIEM FOR FAMILY, IS NOT ENTITLED TO REIMBURSEMENT FOR SUCH EXPENSES AND MUST REFUND ANY AMOUNTS ALREADY PAID BECAUSE APPOINTEES ARE NOT ENTITLED TO SUCH REIMBURSEMENT AND HE WAS NOT TRANSFERRED WITHOUT BREAK IN SERVICE OR SEPARATED AS RESULT OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION TO ENTITLE HIM TO SUCH REIMBURSEMENT UNDER 5 U.S.C. 5724A AND GOVERNMENT CANNOT BE BOUND BEYOND ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR REGULATIONS.

IN THE MATTER OF REIMBURSEMENT FOR RELOCATION EXPENSES, MARCH 11, 1975:

THIS ACTION INVOLVES A RECONSIDERATION OF A SETTLEMENT DATED JANUARY 2, 1973, ISSUED BY THE TRANSPORTATION AND CLAIMS DIVISION (TCD) OF OUR OFFICE DENYING THE CLAIM OF MR. M. REZA FASSIHI, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR REIMBURSEMENT FOR REAL ESTATE EXPENSES INCURRED BY HIM IN CONNECTION WITH THE SALE AND PURCHASE OF A RESIDENCE.

WHILE RESIDING IN ALEXANDRIA, VIRGINIA, MR. FASSIHI WAS HIRED AS AN ARCHITECT FOR ASSIGNMENT TO FORT SILL, OKLAHOMA. IN CONNECTION WITH THIS ASSIGNMENT, A TRAVEL ORDER WAS ISSUED ON MAY 26, 1971, AUTHORIZING MR. FASSIHI TO TRAVEL FROM ALEXANDRIA TO HIS FIRST DUTY STATION, FORT SILL. THE TRAVEL ORDER ALSO AUTHORIZED REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES, REAL ESTATE EXPENSES, AND TRANSPORTATION EXPENSES FOR MR. FASSIHI'S WIFE AND HOUSEHOLD GOODS.

INCIDENT TO HIS RELOCATION, MR. FASSIHI STATES THAT HE WAS REIMBURSED FOR THE FOLLOWING EXPENSES INCURRED BY HIM:

TRAVEL FOR EMPLOYEE AND DEPENDENT $230.05

TEMPORARY QUARTERS SUBSISTENCE EXPENSES 166.99

TOLLS 8.60

TRAILER RENTAL 82.24

PURCHASE OF RESIDENCE 226.00

HOWEVER, WHEN MR. FASSIHI SUBSEQUENTLY REQUESTED REIMBURSEMENT IN THE AMOUNT OF $1,937.50 FOR THE REAL ESTATE EXPENSES INCURRED BY HIM IN CONNECTION WITH THE SALE OF HIS FORMER RESIDENCE, HIS CLAIM WAS ADMINISTRATIVELY DISALLOWED ON THE BASIS THAT NEW APPOINTEES ASSIGNED TO THEIR FIRST DUTY STATION ARE NOT ENTITLED TO REIMBURSEMENT FOR REAL ESTATE EXPENSES. ON THE SAME BASIS, MR. FASSIHI WAS ADVISED THAT A PORTION OF THE AMOUNT PREVIOUSLY PAID TO HIM WAS IMPROPER AND HE WAS REQUESTED TO REFUND TO THE GOVERNMENT $444.53. THIS AMOUNT REPRESENTED $166.99 FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES, $51.54 FOR PER DIEM FOR HIS WIFE, AND $226 FOR REAL ESTATE EXPENSES RELATED TO THE PURCHASE OF HIS RESIDENCE. THE SETTLEMENT OF JANUARY 2, 1973, DISALLOWED MR. FASSIHI'S CLAIM FOR REIMBURSEMENT FOR THE EXPENSE OF SELLING HIS RESIDENCE AND HELD THAT HE WAS INDEBTED TO THE UNITED STATES FOR THE AMOUNT OF $226 PAID TO HIM AS REIMBURSEMENT FOR THE EXPENSE OF PURCHASING A NEW RESIDENCE ON THE BASIS THAT THERE IS NO AUTHORITY TO REIMBURSE A NEW APPOINTEE FOR THE REAL ESTATE EXPENSES INCURRED BY HIM IN CONNECTION WITH HIS APPOINTMENT TO HIS FIRST DUTY STATION.

MR. FASSIHI STATES THAT HE WAS UNEMPLOYED AT THE TIME HE WAS OFFERED THE POSITION AT FORT SILL AND THAT IN ACCEPTING THIS POSITION HE HAD RELIED ON STATEMENTS THAT HE WOULD BE REIMBURSED BY THE GOVERNMENT FOR RELOCATION EXPENSES INCURRED BY HIM. FURTHERMORE, THE RECORD INDICATES THAT MR. FASSIHI WAS EMPLOYED BY THE WASHINGTON TECHNICAL INSTITUTE FROM JULY 15, 1968 TO JUNE 30, 1970, AND THAT HE WAS GIVEN CREDIT FOR SUCH SERVICE WHEN HE WAS APPOINTED TO THE POSITION AT FORT SILL. SINCE MR. FASSIHI HAD PRIOR CREDITABLE SERVICE, HIS ATTORNEY CONTENDS THAT HE WAS NOT A NEW EMPLOYEE. ACCORDINGLY, HIS ATTORNEY STATES THAT THE TRAVEL ORDERS WERE NOT ERRONEOUS AND THAT MR. FASSIHI VALIDLY RELIED ON THOSE ORDERS AND URGES OUR OFFICE TO GRANT HIM EQUITY IN THIS MATTER.

THE AUTHORITY TO ALLOW GOVERNMENT EMPLOYEES REIMBURSEMENT FOR RESIDENCE SALE AND PURCHASE EXPENSES, SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS, AND PER DIEM FOR FAMILY IS CONTAINED IN 5 U.S.C. SEC. 5724A (1970). HOWEVER, SECTION 5724A AUTHORIZES REIMBURSEMENT FOR THOSE EXPENSES ONLY FOR AN EMPLOYEE TRANSFERRED IN THE INTEREST FOR THOSE EXPENSES ONLY FOR AN EMPLOYEE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION OR AGENCY TO ANOTHER FOR PERMANENT DUTY OR A FORMER EMPLOYEE SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO, WITHIN ONE YEAR AFTER SEPARATION IS REEMPLOYED BY A NONTEMPORARY APPOINTMENT AT A DIFFERENT GEOGRAPHICAL LOCATION. THE DECISIONS OF OUR OFFICE HAVE HELD THAT THE REFERENCE IN SECTION 5724A TO A TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY REQUIRES A CHANGE IN THE PERMANENT DUTY STATION OF AN EMPLOYEE WITHOUT A BREAK IN SERVICE. B-164051, JULY 10, 1968.

IN THE PRESENT CASE MR. FASSIHI WAS APPOINTED TO THE POSITION AT FORT SILL APPROXIMIATELY 1 YEAR AFTER HIS SEPARATION FROM THE WASHINGTON TECHNICAL INSTITUTE. THUS THERE WAS A BREAK IN MR. FASSIHI'S SERVICE. MOREOVER, HIS SEPARATION WAS NOT A RESULT OF A REDUCTION IN FORCE OR TRANSFER OF FUNCTION. ACCORDINGLY, MR. FASSIHI IS NOT ENTITLED TO THE TRAVEL AND TRANSPORTATION EXPENSES AUTHORIZED UNDER 5 U.S.C. SEC. 5724A.

THIS CONCLUSION, HOWEVER, DOES NOT PRECLUDE HIM FROM ENTITLEMENT TO TRAVEL AND TRANSPORTATION BENEFITS AUTHORIZED FOR NEW APPOINTEES AND STUDENT TRAINEES TO MANPOWER SHORTAGE POSITIONS UNDER 5 U.S.C. SEC. 5723 (1970). SECTION 5723 AUTHORIZES AN AGENCY TO PAY THE TRAVEL EXPENSES OF A NEW APPOINTEE TO A MANPOWER SHORTAGE POSITION AND THE TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS. SINCE IT APPEARS THAT MR. FASSIHI'S APPOINTMENT WAS TO A MANPOWER SHORTAGE POSITION HE MAY BE ALLOWED REIMBURSEMENT FOR SUCH EXPENSES. HOWEVER, SECTION 5723 DOES NOT AUTHORIZE A NEW APPOINTEE REIMBURSEMENT FOR RESIDENCE SALE AND PURCHASE EXPENSES, SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS, OR PER DIEM FOR FAMILY. SINCE NEW APPOINTEES ARE NOT ENTITLED TO REIMBURSEMENT FOR SUCH EXPENSES AND MR. FASSIHI WAS NOT TRANSFERRED TO FORT SILL WITHOUT A BREAK IN SERVICE AND HIS SEPARATION WAS NOT A RESULT OF A REDUCTION IN FORCE OR TRANSFER OF FUNCTION, THERE IS NO AUTHORITY TO ALLOW HIM REIMBURSEMENT FOR RESIDENCE SALE AND PURCHASE EXPENSES, SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS, OR PER DIEM FOR FAMILY.

IT IS UNFORTUNATE THAT THE TRAVEL ORDER AUTHORIZED ALLOWANCES FOR MR. FASSIHI WHICH WERE NOT PROPERLY ALLOWABLE TO HIM UNDER APPLICABLE STATUTORY AUTHORITY. IT IS A WELL-SETTLED RULE OF LAW, HOWEVER, THAT THE GOVERNMENT CANNOT BE BOUND BEYOND THE ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR BY REGULATIONS, AND THIS IS SO EVEN THOUGH THE AGENT MAY HAVE BEEN UNAWARE OF THE LIMITATIONS ON HIS AUTHORITY. SEE GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380, 384 (1947); 53 COMP. GEN. 11, 15 (1973); AND B-181080, MAY 21, 1974. MOREOVER, CONCERNING AMOUNTS ALREADY REIMBURSED TO MR. FASSIHI, THE AUTHORITY OF 5 U.S.C. SEC. 5584 TO WAIVE CLAIMS OF THE UNITED STATES AGAINST A PERSON ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY OR ALLOWANCE TO AN EMPLOYEE DOES NOT INCLUDE AUTHORITY TO WAIVE ERRONEOUS PAYMENTS OF TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES, AND RELOCATION ALLOWANCES PAYABLE UNDER 5 U.S.C. SEC. 5724A. 4 C.F.R. 91.2(C) AND (D) (1974).

IN VIEW OF THE ABOVE, OUR SETTLEMENT OF JANUARY 2, 1973, DISALLOWING MR. FASSIHI'S CLAIM FOR $1,937.50 REPRESENTING REIMBURSEMENT FOR EXPENSES INCURRED BY HIM INCIDENT TO THE SALE OF HIS OLD RESIDENCE AND REQUIRING REPAYMENT OF $226 RECEIVED BY HIM AS REIMBURSEMENT FOR EXPENSES INCURRED BY HIM INCIDENT TO THE PURCHASE OF A NEW RESIDENCE, IS HEREBY SUSTAINED. FURTHERMORE, MR. FASSIHI IS REQUIRED TO REFUND TO THE GOVERNMENT ANY AMOUNTS RECEIVED BY HIM REPRESENTING REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES AND PER DIEM FOR HIS FAMILY INCIDENT TO HIS APPOINTMENT TO THE POSITION AT FORT SILL.