B-170589, AUG 8, 1974

B-170589, AUG 8, 1974

EMPLOYEES ASSIGNED UNDER INTERGOVERNMENTAL PERSONNEL ACT BY TRAVEL ORDERS ISSUED PRIOR TO DATE OF OUR HOLDING IN 53 COMP. GEN. 81 (1973), THAT BOTH RELOCATION AND TEMPORARY-DUTY-TYPE EXPENSES MAY NOT BE PAID UNDER 5 U.S.C. 3375(A), MAY NEVERTHELESS RETAIN BOTH PER DIEM AND TEMPORARY QUARTERS SUBSISTENCE EXPENSES. OUR DECISION IN 53 COMP. GEN. 81 HAD THE EFFECT OF CLARIFYING PURPOSE OF SUBSECTION 3375(A) IN MANNER INCONSISTENT WITH CSC REGULATIONS AND IS TANTAMOUNT TO A CHANGE IN CONSTRUCTION OF THE LAW WHICH NEED NOT BE GIVEN RETROACTIVE EFFECT.

DONALD B. KORNREICH - PROSPECTIVE APPLICATION OF 53 COMP. GEN. 81 (1973)

BY LETTER DATED OCTOBER 17, 1973, MR. DONALD B. KORNREICH REQUESTED AN ADVANCE DECISION FROM THE GENERAL ACCOUNTING OFFICE AS TO HIS OBLIGATION TO REPAY THE SUM OF $217 WHICH HE RECEIVED AS A PER DIEM ALLOWANCE IN CONNECTION WITH HIS ASSIGNMENT TO THE UNIVERSITY OF HAWAII.

THE AUTHORITY TO RENDER DECISIONS IS LIMITED TO MATTERS PRESENTED BY HEADS OF DEPARTMENTS AND AGENCIES, DISBURSING OFFICERS, AND TO CLAIMANTS WHO HAVE FILED MONETARY CLAIMS WITH OUR OFFICE. SEE 31 U.S.C. 74 AND 82D. HOWEVER, SINCE WE UNDERSTAND THERE ARE NUMEROUS OTHER EMPLOYEES SIMILARLY SITUATED WHO HAVE BEEN OVERPAID AND BECAUSE OF THE URGENCY OF THE MATTER WE WILL RENDER A DECISION AS IF THE REQUEST HAD ORIGINATED FROM THE HEAD OF THE AGENCY, WITH A COPY TO MR. KORNREICH.

MR. KORNREICH, A NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) EMPLOYEE, WAS ASSIGNED TO THE UNIVERSITY OF HAWAII FOR A PERIOD OF 1 YEAR UNDER THE INTERGOVERNMENTAL PERSONNEL ACT (IPA) OF 1970, APPROVED JANUARY 5, 1971, PUBLIC LAW 91-648, 84 STAT. 1909, 5 U.S.C. 3375. BY TRAVEL AUTHORIZATION DATED JUNE 19, 1973, HE WAS AUTHORIZED TO TRAVEL FROM HIS OFFICIAL DUTY STATION AT MOFFETT FIELD, CALIFORNIA, TO THE UNIVERSITY OF HAWAII AND, AMONG OTHER ALLOWANCES, WAS AUTHORIZED PER DIEM AND SUBSISTENCE EXPENSES AS FOLLOWS:

"5. TEMPORARY QUARTERS AUTHORIZED FOR EMPLOYEE AND FAMILY (30 DAYS MAXIMUM); EMPLOYEE TO BE PAID PER DIEM FOR BALANCE OF PERIOD WITHIN THE 30 DAYS IF TEMPORARY QUARTERS ARE VACATED FOR PERMANENT QUARTERS."

APPARENTLY MR. KORNREICH WAS PAID TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE 23 DAYS DURING WHICH HIS FAMILY OCCUPIED TEMPORARY QUARTERS AND WAS PAID $217 AS A PER DIEM ALLOWANCE FOR THE REMAINING 7 DAYS (AUGUST 2 THROUGH AUGUST 8, 1973) OF THE 30-DAY PERIOD DURING WHICH THE FAMILY OCCUPIED PERMANENT QUARTERS AFTER HAVING MOVED FROM TEMPORARY LODGINGS. THE AGENCY HAS ISSUED A BILL FOR COLLECTION IN THE AMOUNT OF $217 BASED ON THE HOLDING BY THIS OFFICE IN 53 COMP. GEN. 81 (1973).

IN THE ABOVE-REFERENCED DECISION WE HELD THAT UNDER THE AUTHORITY OF 5 U.S.C. 3375, FOR PAYMENT OF TRAVEL EXPENSES IN CONNECTION WITH ASSIGNMENTS UNDER THE IPA, AN AGENCY COULD NOT PAY BOTH THE BENEFITS ASSOCIATED WITH A PERMANENT CHANGE OF STATION AND THE BENEFITS NORMALLY ASSOCIATED WITH A TEMPORARY DUTY ASSIGNMENT. IN ARRIVING AT THAT DECISION WE RECOGNIZED THAT THE STATUTORY LANGUAGE IS UNCLEAR AS TO WHETHER AN EMPLOYEE MAY BE REIMBURSED FOR ALL OR ONLY CERTAIN OF THE ENUMERATED EXPENSES. THE PERTINENT LANGUAGE OF SECTION 3375, TITLE 5, U.S.C. IS AS FOLLOWS:

"SEC. 3375. TRAVEL EXPENSES

"(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE WITH -

"(1) SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE, FOR THE EXPENSES OF -

"(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE ASSIGNMENT LOCATION;

"(B) A PER DIEM ALLOWANCE AT THE ASSIGNMENT LOCATION DURING THE PERIOD OF THE ASSIGNMENT; AND

"(C) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY DURING THE ASSIGNMENT WHEN THE HEAD OF THE EXECUTIVE AGENCY CONSIDERS THE TRAVEL IN THE INTEREST OF THE UNITED STATES:

"(2) SECTION 5724 OF THIS TITLE, FOR THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY AND OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS TO AND FROM THE ASSIGNMENT LOCATION;

"(3)SECTION 5724AA)(1) OF THIS TITLE, FOR THE EXPENSES OF PER DIEM ALLOWANCES FOR THE IMMEDIATE FAMILY OF THE EMPLOYEE TO AND FROM THE ASSIGNMENT LOCATION;

"(4) SECTION 5724AA)(3) OF THIS TITLE, FOR SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS AT THE ASSIGNMENT LOCATION AND ON RETURN TO HIS FORMER POST OF DUTY; AND

"(5)SECTION 5726(C) OF THIS TITLE, FOR THE EXPENSES OF NONTEMPORARY STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS IN CONNECTION WITH ASSIGNMENT AT AN ISOLATED LOCATION."

THE LANGUAGE OF THE IMPLEMENTING INSTRUCTIONS ISSUED BY THE CIVIL SERVICE COMMISSION, CONTAINED IN SUBCHAPTER 1-7 OF CHAPTER 334 OF THE FEDERAL PERSONNEL MANUAL, IN EFFECT AT THE DATE OF OUR DECISION AND PRESENTLY, IS EQUALLY UNCLEAR IN THIS REGARD.

THUS, AT THE TIME OF MR. KORNREICH'S ASSIGNMENT TO THE UNIVERSITY OF HAWAII, PRIOR TO OUR DECISION, THE ACTION OF NASA IN AUTHORIZING BOTH PER DIEM AND TEMPORARY QUARTERS SUBSISTENCE EXPENSES WAS NOT AN UNREASONABLE INTERPRETATION OF THE APPLICABLE STATUTORY AND REGULATORY AUTHORITY. WHERE, AS HERE, A DECISION OF THIS OFFICE HAS THE EFFECT OF CLARIFYING THE PURPOSE OF A STATUTE IN A MANNER THAT IS INCONSISTENT WITH A NOT UNREASONABLE INTERPRETATION GIVEN THAT STATUTE BY THE AGENCY RESPONSIBLE FOR ITS IMPLEMENTATION, THAT DECISION IS TANTAMOUNT TO A CHANGE IN CONSTRUCTION OF THE LAW AND NEED NOT BE GIVEN RETROACTIVE EFFECT. COMP. GEN. 688 (1945); 36 ID. 84 (1956); 52 ID. 99 (1972); B-159950, DECEMBER 21, 1967. FOR THIS REASON WE DO NOT REGARD MR. KORNREICH OR ANY EMPLOYEE SIMILARLY SITUATED TO BE INDEBTED TO THE UNITED STATES FOR AMOUNTS OF PER DIEM RECEIVED PURSUANT TO TRAVEL ORDERS ISSUED PRIOR TO THE AUGUST 6, 1973 DATE OF OUR DECISION. THE BILL FOR COLLECTION ISSUED AGAINST MR. KORNREICH MAY THEREFORE BE CANCELLED.