B-156482, JUNE 14, 1977

B-156482, JUNE 14, 1977

EMPLOYEE TRAVELED FROM WASHINGTON, D.C., TO SAN FRANCISCO AND RETURN TO ATTEND CIVIL SERVICE COMMISSION HEARING REGARDING HIS APPEAL FROM SEPARATION FROM POSITION ON SAIPAN, TRUST TERRITORY OF PACIFIC ISLANDS. EMPLOYEE'S TRAVEL RECORDS WERE STOLEN. HE MAY BE REIMBURSED CONSTRUCTIVE COST OF TRAVEL TO ATTEND HEARING NOT TO EXCEED CONSTRUCTIVE COST OF ROUND TRIP FROM WOODBRIDGE, VIRGINIA, TO SAN FRANCISCO. EMPLOYEE MAY NOT BE REIMBURSED FOR EXPENSE OF TRAVEL TO SAN FRANCISCO ON TWO OTHER OCCASIONS TO CONFER WITH ATTORNEY. ATTORNEY'S FEES INCIDENT TO HEARING ARE NOT REIMBURSABLE.

LAWRENCE D. MORDEROSIAN - EXPENSES OF TRAVEL TO ATTEND CIVIL SERVICE COMMISSION HEARING AND CONFER WITH ATTORNEY; ATTORNEY'S FEES:

LAWRENCE D. MORDEROSIAN HAS REQUESTED RECONSIDERATION OF OUR DECISION B-156482 DATED JUNE 23, 1975, REGARDING HIS CLAIM FOR REIMBURSEMENT FOR TRAVEL EXPENSES AND ATTORNEY'S FEES INCIDENT TO HIS ATTENDANCE AT A CIVIL SERVICE COMMISSION (CSC) HEARING IN 1972.

IN 1972 MR. MORDEROSIAN APPEALED TO THE CSC HIS SEPARATION IN A REDUCTION -IN-FORCE FROM HIS POSITION AS A CONTRACT SPECIALIST WITH THE TRUST TERRITORY OF THE PACIFIC ISLANDS. A HEARING ON MR. MORDEROSIAN'S APPEAL, ORIGINALLY SCHEDULED FOR APRIL 25, WAS HELD ON MAY 16, 1972, IN THE SAN FRANCISCO, CALIFORNIA REGIONAL OFFICE OF THE CSC. MR. MORDEROSIAN CLAIMS $4,350 IN ATTORNEY'S FEES AND APPROXIMATELY $1,500 IN TRAVEL EXPENSES INCIDENT TO THREE TRIPS AT PERSONAL EXPENSE FROM WASHINGTON, D.C., TO SAN FRANCISCO TO CONFER WITH HIS ATTORNEY AND TO ATTEND THE HEARING.

IN OUR DECISION B-156482 OF JUNE 23, 1975, SUPRA, WE STATED THAT MR. MORDEROSIAN'S CLAIM FOR TRAVEL EXPENSES IN CONNECTION WITH HIS ATTENDANCE AT THE HEARING COULD BE ALLOWED AS THE PERFORMANCE OF OFFICIAL TRAVEL BUT THAT THERE WAS NOTHING IN THE RECORD DOCUMENTING ANY OF THE EXPENSES CLAIMED. SINCE THE DATE OF THAT DECISION, MR. MORDEROSIAN HAS APPRISED US OF THE THEFT IN NOVEMBER 1972 OF HIS PERSONAL EXPENSES RECORDS AND HAS PROVIDED US A COPY OF A CONFIRMING POLICE REPORT TO EXPLAIN HIS INABILITY TO PROVIDE A DETAILED STATEMENT OF EXPENSES.

MR. MORDEROSIAN'S ATTORNEY HAS CONFIRMED THE FACT OF HIS CLIENT'S TRAVEL TO SAN FRANCISCO TO PARTICIPATE IN THE MAY 16, 1972 HEARING, AND THE CIVIL SERVICE COMMISSION HAS VERIFIED THE FACT OF HIS APPEARANCE AT THAT HEARING. IN THESE CIRCUMSTANCES WE SEE NO REASON TO QUESTION MR. MORDEROSIAN'S CLAIM FOR REIMBURSEMENT FOR TRAVEL EXPENSES IN CONNECTION WITH HIS ACTUAL ATTENDANCE AT THE MAY 16 HEARING. FOLLOWING HIS RECEIPT OF NOTICE OF THE REDUCTION-IN-FORCE ACTION WHICH WAS THE SUBJECT OF THAT HEARING, MR. MORDEROSIAN RETURNED TO THE UNITED STATES AND, DURING THE PERIOD THAT HIS APPEAL WAS PENDING, HE WAS APPARENTLY RESIDING IN WASHINGTON, D.C. AT THE TIME HE WAS HIRED BY THE TRUST TERRITORY, MR. MORDEROSIAN HAD BEEN RESIDING NEAR WASHINGTON, D.C., IN WOODBRIDGE, VIRGINIA, AND, WHILE THE RECORD IS NOT ENTIRELY CLEAR IN THIS REGARD, WOODBRIDGE WAS PRESUMABLY THE HOME OF RECORD ON THE BASIS OF WHICH HIS RETURN TRAVEL EXPENSES INCIDENT TO THE REDUCTION-IN-FORCE ACTION WERE DETERMINED. THEREFORE, HE MAY BE REIMBURSED THE CONSTRUCTIVE COST OF ONE ROUND TRIP FROM WASHINGTON, D.C., TO SAN FRANCISCO NOT TO EXCEED THE CONSTRUCTIVE COST OF ROUND TRIP TRAVEL FROM WOODBRIDGE, VIRGINIA, TO SAN FRANCISCO FOR THE PURPOSE OF APPEARING AT THE MAY 16, 1972 HEARING.

IN THIS CONNECTION WE HAVE AUTHORIZED REIMBURSEMENT OF TRAVEL EXPENSES INCIDENT TO AN EMPLOYEE'S ACTUAL ATTENDANCE AT CIVIL SERVICE COMMISSION HEARINGS ON THE BASIS THAT THE EMPLOYEE'S ATTENDANCE IS SO GREATLY IN THE GOVERNMENT'S INTEREST THAT THE TRAVEL CONSTITUTES OFFICIAL BUSINESS. COMP.GEN. 582 (1954); B-180649, FEBRUARY 28, 1974; B-127060, MARCH 21, 1956. THAT AUTHORITY, HOWEVER, DOES NOT EXTEND TO TRAVEL FOR PURPOSES OF CONSULTATION BETWEEN THE EMPLOYEE AND HIS ATTORNEY. SUCH EXPENSE IS PERSONAL TO THE EMPLOYEE.

THE OTHER TWO TRIPS FOR WHICH MR. MORDEROSIAN CLAIMS REIMBURSEMENT APPEAR TO HAVE BEEN PERFORMED FOR THE PURPOSE OF CONSULTING WITH HIS ATTORNEY OR OTHERWISE PREPARING HIS APPEAL. THE FIRST OF THESE WAS PERFORMED ON OR ABOUT MARCH 12, 1972. MR. MORDEROSIAN'S ATTORNEY SUGGESTS THAT THIS TRIP WAS MADE IN CONNECTION WITH A HEARING SCHEDULED FOR MARCH 27, 1972. THE RECORD OF THE APPEAL PROCEEDINGS, HOWEVER, CONTAINS NO REFERENCE TO A MARCH HEARING DATE. RATHER, IT CONTAINS A LETTER DATED MARCH 8, 1972, FROM THE CLAIMANT'S ATTORNEY TO THE CIVIL SERVICE COMMISSION REQUESTING ADDITIONAL TIME, UNTIL MAY 1, 1972, IN WHICH TO AUGMENT THE RECORD FOR APPEAL. THIS REQUEST FOR ADDITIONAL TIME SUPPORTS THE CONCLUSION THAT MR. MORDEROSIAN'S TRAVEL TO SAN FRANCISCO AFTER THE MARCH 8, 1972 DATE OF HIS ATTORNEY'S LETTER WAS NOT FOR THE PURPOSE OF ATTENDING A HEARING BUT WAS INSTEAD FOR THE PURPOSE OF CONSULTING WITH HIS ATTORNEY OR OTHERWISE PREPARING THE RECORD FOR APPEAL.

MR. MORDEROSIAN ALSO CLAIMS EXPENSES IN CONNECTION WITH HIS TRAVEL FROM WASHINGTON, D.C., TO SAN FRANCISCO ON OR ABOUT APRIL 12, 1972. HIS ATTORNEY SUGGESTS THAT MR. MORDEROSIAN'S TRAVEL AT THAT TIME WAS IN CONNECTION WITH A HEARING SCHEDULED IN APRIL OF 1972. IN THIS CONNECTION THE ATTORNEY STATES:

"THE SECOND HEARING WAS SCHEDULED FOR APRIL 25, 1972 AND MR. MORDEROSIAN WAS IN OUR OFFICE SEVERAL DAYS IN ADVANCE, IN ORDER TO REVIEW AND PREPARE A COPY OF THE NOTICE TO HIM AND OUR OFFICE DATED APRIL 14, 1972, WHICH SCHEDULED THAT SUBSEQUENT HEARING.

"WE RECEIVED A CALL FROM A CIVIL SERVICE COMMISSION REPRESENTATIVE SEVERAL DAYS PRIOR TO THAT APRIL 14, 1972 DATE INDICATING THAT THE APRIL 14TH HEARING HAD BEEN POSTPONED UNTIL MAY 16, 1972. THIS WAS NOT DONE AT OUR REQUEST, BUT IT WAS DONE PRESUMABLY BECAUSE INFORMATION THAT WE HAD REQUESTED HAD STILL NOT BEEN FURNISHED."

THE ABOVE STATEMENT EVIDENCES SOME CONFUSION AS TO THE HEARING DATE IN QUESTION. THE RECORD OTHERWISE ESTABLISHES THAT THE HEARING WAS ORIGINALLY SCHEDULED FOR APRIL 25, 1972, AND CONTROVERTS THE STATEMENT THAT IT WAS RESCHEDULED FOR MAY 16, 1972, AT OTHER THAN THE APPELLANT'S REQUEST.

THE CIVIL SERVICE COMMISSION HAS ADVISED US THAT ON OR ABOUT APRIL 11, 1972, MR. MORDEROSIAN'S ATTORNEY REQUESTED THAT THE APRIL 25 HEARING DATE BE RESCHEDULED. THIS IS CONFIRMED BY THE CLAIMANT'S OWN STATEMENT IN HIS LETTER TO THE CIVIL SERVICE COMMISSION DATED APRIL 28, 1972, THAT "MY ATTORNEY, FRANK WINSTON, HAD THE ORIGINAL DATE OF 25 APRIL 1972, CHANGED BECAUSE OF HIS CALL TO ACTIVE DUTY WITH THE MILITARY." IN ADDITION THE CIVIL SERVICE COMMISSION ADVISED THE CLAIMANT'S CONGRESSMAN ON APRIL 26, 1972, THAT THE APRIL 25 HEARING HAD BEEN POSTPONED TO MAY 16, 1972, AT MR. MORDEROSIAN'S REQUEST.

IN FACT MR. MORDEROSIAN'S TRAVEL TO SAN FRANCISCO WAS WELL IN ADVANCE OF THE ORIGINAL APRIL 25 HEARING DATE. HAD HE NOT TRAVELED TO SAN FRANCISCO EARLY IN ORDER TO CONSULT WITH HIS ATTORNEY, HIS OWN REQUEST FOR RESCHEDULING OF THE HEARING WOULD HAVE RENDERED THAT TRIP UNNECESSARY INSOFAR AS HIS ATTENDANCE WAS CONCERNED. MR. MORDEROSIAN CANNOT NOW CLAIM THAT HIS TRAVEL EXPENSES WERE INCIDENT TO THE CANCELLED HEARING WHERE HE HIMSELF REQUESTED THAT CANCELLATION AND WHERE HIS TRIP WOULD HAVE BEEN OTHERWISE UNNECESSARY BUT FOR THE FACT THAT HE CHOSE AN EARLY DEPARTURE DATE IN ORDER TO PREPARE FOR HIS CASE.

WITH RESPECT TO MR. MORDEROSIAN'S CLAIM FOR ATTORNEY'S FEES INCIDENT TO THE HEARING, WE STATED IN OUR DECISION OF JUNE 23, 1975:

"WE ARE UNAWARE OF ANY AUTHORITY UNDER WHICH MR. MORDEROSIAN'S CLAIM FOR ATTORNEY'S FEES INCURRED INCIDENT TO THE CIVIL SERVICE COMMISSION APPEAL HEARING CAN BE REIMBURSED AND, IN ABSENCE OF ANY EXPRESS STATUTORY AUTHORITY FOR ALLOWANCE OF ATTORNEYS FEES TO A PARTY IN A SUIT OR CLAIM AGAINST THE UNITED STATES, REIMBURSEMENT IS NOT PERMISSIBLE. SEE 28 U.S.C. 2412 (1970); PIGGLY WIGGLY CORP. V. UNITED STATES, 112 CT.CL. 391, 432 (1949); AND 52 COMP.GEN. 859 (1973). * * * "

SINCE THE DATE OF THAT DECISION, THE RULE THAT ATTORNEY'S FEES MAY NOT BE PAID IN THE ABSENCE OF SPECIFIC AUTHORITY HAS BEEN CONFIRMED IN FITZGERALD V. UNITED STATES CIVIL SERVICE COMMISSION (D.C. CIVIL 74 319) DECIDED APRIL 13, 1977, BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. IN THAT DECISION THE COURT HELD THAT "A GENERAL WAIVER OF SOVEREIGN IMMUNITY SHOULD NOT BE CONSTRUED TO EXTEND TO ATTORNEY'S FEES UNLESS CONGRESS HAS CLEARLY INDICATED THAT IT SHOULD." IN THE ABSENCE OF SPECIFIC AUTHORITY FOR PAYMENT OF ATTORNEY'S FEES IN CONNECTION WITH APPEALS FROM REDUCTION-IN-FORCE ACTIONS, OUR DECISION B-156482, JUNE 23, 1975, DENYING MR. MORDEROSIAN'S CLAIM FOR ATTORNEY'S FEES IS HEREBY AFFIRMED.

ACCORDINGLY, MR. MORDEROSIAN MAY NOW BE REIMBURSED IN ACCORDANCE WITH THE FOREGOING FOR THE CONSTRUCTIVE COST OF ONE ROUND TRIP FROM WASHINGTON, D.C., TO SAN FRANCISCO NOT TO EXCEED THE CONSTRUCTIVE COST OF ONE ROUND TRIP FROM WOODBRIDGE, VIRGINIA, TO SAN FRANCISCO. OUR CLAIMS DIVISION HAS BEEN SO ADVISED, AND A SETTLEMENT FOR SUCH EXPENSES WILL BE ISSUED IN MR. MORDEROSIAN'S FAVOR.