B-217519, APR 18, 1985, 64 COMP.GEN. 472

B-217519: Apr 18, 1985

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OFFICERS AND EMPLOYEES - TRANSFERS - TRANSPORTATION FOR HOUSE HUNTING - DISALLOWANCE EMPLOYEES WHO WERE PERMANENTLY TRANSFERRED FROM MIAMI TO ORLANDO. THE CLAIMS ARE DENIED SINCE EACH EMPLOYEE MAY BE REIMBURSED TRAVEL AND TRANSPORTATION EXPENSES FOR ONLY ONE ROUND TRIP OF EMPLOYEE AND SPOUSE BETWEEN THE LOCALITIES OF THE OLD AND NEW DUTY STATIONS FOR THE PURPOSE OF SEEKING RESIDENCE QUARTERS. 5 U.S.C. 5724AA) (2) (1982). THE FACT THAT THE EMPLOYEES MAY HAVE BEEN GIVEN ERRONEOUS ADVICE DOES NOT CREATE A RIGHT TO REIMBURSEMENT WHERE THE EXPENSES CLAIMED ARE PRECLUDED BY LAW. 1985: THIS DECISION IS IN RESPONSE TO A REQUEST BY MR. FOR A DETERMINATION AS TO WHETHER MULTIPLE HOUSE HUNTING TRIPS BY EMPLOYEES AND THEIR SPOUSES ARE REIMBURSABLE.

B-217519, APR 18, 1985, 64 COMP.GEN. 472

OFFICERS AND EMPLOYEES - TRANSFERS - TRANSPORTATION FOR HOUSE HUNTING - DISALLOWANCE EMPLOYEES WHO WERE PERMANENTLY TRANSFERRED FROM MIAMI TO ORLANDO, FLA., SEEK REIMBURSEMENT FOR SEVERAL HOUSE HUNTING TRIPS. THE CLAIMS ARE DENIED SINCE EACH EMPLOYEE MAY BE REIMBURSED TRAVEL AND TRANSPORTATION EXPENSES FOR ONLY ONE ROUND TRIP OF EMPLOYEE AND SPOUSE BETWEEN THE LOCALITIES OF THE OLD AND NEW DUTY STATIONS FOR THE PURPOSE OF SEEKING RESIDENCE QUARTERS. 5 U.S.C. 5724AA) (2) (1982). THE FACT THAT THE EMPLOYEES MAY HAVE BEEN GIVEN ERRONEOUS ADVICE DOES NOT CREATE A RIGHT TO REIMBURSEMENT WHERE THE EXPENSES CLAIMED ARE PRECLUDED BY LAW.

MATTER OF: RIVA FRALICK, ET AL.-- MULTIPLE HOUSE HUNTING TRIPS, APRIL 18, 1985:

THIS DECISION IS IN RESPONSE TO A REQUEST BY MR. DON E. HANSEN, MANAGER, FISCAL STANDARDS BRANCH, OFFICE OF ACCOUNTING, FEDERAL AVIATION ADMINISTRATION (FAA), UNITED STATES DEPARTMENT OF TRANSPORTATION, FOR A DETERMINATION AS TO WHETHER MULTIPLE HOUSE HUNTING TRIPS BY EMPLOYEES AND THEIR SPOUSES ARE REIMBURSABLE. FOR THE REASONS HEREAFTER STATED, ONLY ONE ROUND TRIP, NOT SEVERAL TRIPS, BY THE EMPLOYEE AND SPOUSE MAY BE REIMBURSED. THE CLAIMS OF THE EMPLOYEES FOR REIMBURSEMENT OF ADDITIONAL HOUSE HUNTING TRIPS ARE, THEREFORE, DENIED.

THE FACTS, BRIEFLY STATED, ARE AS FOLLOWS. IN JANUARY 1983, THE EMPLOYEES OF THE MIAMI AIRPORTS DISTRICT OFFICE (ADO), FAA, WERE NOTIFIED THAT THEY WOULD BE RELOCATING TO ORLANDO, FLORIDA. IN A TELEPHONE CONFERENCE BETWEEN THE ADO EMPLOYEES AND THE SOUTHERN REGION TRAVEL OFFICE CONCERNING THE 1982 CHANGES TO RELOCATION ALLOWANCES, THE ADO STAFF WAS ADVISED THAT THE ADVANCE HOUSE HUNTING TRIP BY EMPLOYEE AND SPOUSE COULD BE SPLIT INTO SEPARATE TRIPS BUT THAT REIMBURSEMENT OF THE COSTS WOULD STILL BE LIMITED TO ONE ROUND TRIP.

APPARENTLY THE EMPLOYEES INTERPRETED THIS ADVICE TO AUTHORIZE MULTIPLE HOUSE HUNTING TRIPS BY EMPLOYEE AND SPOUSE TOGETHER, RATHER THAN A SEPARATE HOUSE HUNTING TRIP BY THE EMPLOYEE AND SPOUSE TRAVELING AT DIFFERENT TIMES. CONSEQUENTLY, FIVE ADO EMPLOYEES AND THEIR SPOUSES MADE MULTIPLE HOUSE HUNTING TRIPS AND INCURRED COSTS FOR EACH TRIP. THE FIVE EMPLOYEES SUBMITTED TRAVEL VOUCHERS CLAIMING REIMBURSEMENT OF THE COSTS OF THE MULTIPLE HOUSE HUNTING TRIPS MADE TO THE ORLANDO AREA. THE FAA DECLINED TO PAY FOR MORE THAN ONE HOUSE HUNTING TRIP BY AN EMPLOYEE AND SPOUSE BASED UPON THE PROVISIONS OF PARAGRAPH 2-4.1A, FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SUPP. 4, OCTOBER 1, 1982) FTR INCORP. BY REF., 41 C.F.R. SEC.101-7.003 (1983), AND OUR DECISION, 47 COMP.GEN. 189 (1967).IN 47 COMP.GEN. 189, WE HELD THAT HOUSE HUNTING COULD NOT EXTEND OVER SEVERAL TRIPS UNTIL THE THEN-APPLICABLE MAXIMUM OF 6 DAYS' PER DIEM REIMBURSEMENT FOR EMPLOYEE AND SPOUSE WAS EXHAUSTED.

THE EMPLOYEES BELIEVE THEY SHOULD BE REIMBURSED FOR THE COSTS OF THE MULTIPLE HOUSE HUNTING TRIPS FOR THE FOLLOWING REASONS:

1. MISINFORMATION WAS GIVEN THEM BY FAA TRAVEL OFFICE PERSONNEL.

2. OUR DECISION IN 47 COMP.GEN. 189 WAS DECIDED PRIOR TO THE 1982 CHANGES TO THE FTR.

3. THE FAA DISCOURAGED ABSENCES FROM THE OFFICE FOR EXTENDED PERIODS OF TIME; THEREFORE, MULTIPLE HOUSE HUNTING TRIPS MADE ON WEEKENDS WERE ADVANTAGEOUS TO THE GOVERNMENT.

SECTION 5724AA)(2) OF TITLE 5, U.S.C. 1982, PROVIDES THAT THE EXPENSES INCURRED IN SEEKING PERMANENT RESIDENCE QUARTERS AT A NEW OFFICIAL STATION MAY BE ALLOWED "ONLY FOR ONE ROUND TRIP" IN CONNECTION WITH EACH CHANGE OF STATION OF THE EMPLOYEE. THE IMPLEMENTING REGULATION, PARAGRAPH 2-4.1A OF THE FTR, SUPPLEMENT 4, EFFECTIVE OCTOBER 1, 1982, PROVIDES THAT:

PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF THE EMPLOYEE AND SPOUSE TRAVELING TOGETHER, OR THE EMPLOYEE OR SPOUSE TRAVELING INDIVIDUALLY INSTEAD OF TRAVEL BY THE OTHER OR TOGETHER, FOR ONE ROUND TRIP BETWEEN THE LOCALITIES OF THE OLD AND NEW DUTY STATIONS FOR THE PURPOSE OF SEEKING RESIDENCE QUARTERS, MAY BE AUTHORIZED WHEN CIRCUMSTANCES WARRANT. SEPARATE ROUND TRIPS BY THE EMPLOYEE AND SPOUSE MAY BE ALLOWED PROVIDED THE OVERALL COST TO THE GOVERNMENT IS LIMITED TO THE COST OF ONE ROUND TRIP FOR THE EMPLOYEE AND SPOUSE TRAVELING TOGETHER. (EMPHASIS IN ORIGINAL.)

IN OUR DECISION, 47 COMP.GEN. 189, SUPRA, WE INTERPRETED THE STATUTORY PROVISION AND THE PREDECESSOR REGULATORY PROVISION TO MEAN THAT ONLY ONE ROUND TRIP, NOT SEVERAL TRIPS, IS CONTEMPLATED. WHILE THAT DECISION WAS RENDERED PRIOR TO THE 1982 CHANGES TO THE FTR, THE STATUTORY PROVISION HAS NOT CHANGED AND THE ABOVE-QUOTED REGULATION STILL CONTEMPLATES ONLY ONE ROUND TRIP OF THE EMPLOYEE AND SPOUSE BETWEEN THE LOCALITIES OF THE OLD AND NEW DUTY STATIONS FOR THE PURPOSE OF SEEKING RESIDENCE QUARTERS. SEE 47 FED.REG. 44567 (1982), WHERE THE REVISED REGULATION WAS EXPLAINED, IN PART, AS FOLLOWS:

PARAGRAPH 2-4.1A IS REVISED TO ALLOW REIMBURSEMENT FOR SEPARATE HOUSE HUNTING TRIPS FOR THE EMPLOYEE AND SPOUSE PROVIDED THE COST IS LIMITED TO THE COST OF ONE ROUND TRIP FOR EMPLOYEE AND SPOUSE TRAVELING TOGETHER (EXPENSES OF ONLY ONE ROUND TRIP ARE ALLOWED BY STATUTE) ***.

WE THEREFORE AFFIRM OUR HOLDING IN 47 COMP.GEN. 189 IN REGARD TO THIS ISSUE.

ALTHOUGH THE ADO EMPLOYEES MAY HAVE BEEN MISINFORMED AS TO THE MEANING OF THE 1982 CHANGES TO THE FTR, IT IS A WELL-ESTABLISHED RULE THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE 55 COMP.GEN. 747 (1975), AND CASES CITED THEREIN. THE ERRONEOUS ADVICE OR AUTHORIZATION DOES NOT, IN ITSELF, CREATE A RIGHT TO REIMBURSEMENT WHERE THE EXPENSES CLAIMED ARE PRECLUDED BY LAW. EUGENE B. ROCHE, B-205041, MAY 28, 1982.

FINALLY, THE FACT THAT THE ADO EMPLOYEES PERFORMED THE MULTIPLE HOUSE HUNTING TRIPS ON WEEKENDS SO AS TO AVOID EXTENDED PERIODS OF ABSENCE FROM THE OFFICE, AND SUCH ACTIONS MAY HAVE BEEN ADVANTAGEOUS TO THE GOVERNMENT, DOES NOT ESTABLISH A BASIS FOR DEROGATION OR WAIVER OF THE EXPRESS PROVISIONS OF THE STATUTE AND REGULATIONS OR CREATE ADDITIONAL ENTITLEMENT TO REIMBURSEMENT.

ACCORDINGLY, IN A CHANGE OF OFFICIAL STATION, REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES MAY BE MADE FOR ONLY ONE ROUND TRIP OF EMPLOYEE AND SPOUSE BETWEEN THE LOCALITIES OF THE OLD AND NEW DUTY STATIONS FOR THE PURPOSE OF SEEKING RESIDENCE QUARTERS. THEREFORE, THE CLAIMS OF THE FIVE EMPLOYEES FOR REIMBURSEMENT OF THE EXPENSES OF ADDITIONAL HOUSE HUNTING TRIPS BY AN EMPLOYEE AND SPOUSE ARE DENIED.