B-138928, JUN. 23, 1960

B-138928: Jun 23, 1960

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THE FACTS INVOLVED WERE STATED IN OUR DECISION. HOGAN AND WILL NOT BE REPEATED HERE EXCEPT AS PERTINENT TO THE PRESENT DISCUSSION OF THE CASE. HONOLULU IS PREDICATED UPON THE FACT THAT HE SATISFACTORILY COMPLETED THE OVERSEAS EMPLOYMENT AGREEMENT HE EXECUTED WITH THE CIVIL AERONAUTICS ADMINISTRATION ON JANUARY 23. AS PRECLUDING AN AGENCY FROM REQUIRING THE PERIOD OF SERVICE TO BE WITH THE PARTICULAR AGENCY WITH WHOM THE AGREEMENT IS EXECUTED. HOGAN VIOLATED THE SUPPLEMENTARY EMPLOYMENT AGREEMENT AND IT WOULD APPEAR THAT THE REASON FOR SUCH VIOLATION WAS NOT BEYOND HIS CONTROL. HOGAN WAS NOT SEPARATED FROM GOVERNMENT SERVICE BUT WAS TRANSFERRED PLACES THE PAYMENT OF HIS TRAVEL EXPENSES UNDER SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946.

B-138928, JUN. 23, 1960

TO HONORABLE E. R. QUESADA, ADMINISTRATOR, FEDERAL AVIATION AGENCY:

ON MARCH 8, 1960, YOU REQUESTED OUR RECONSIDERATION OF THE REQUEST OF OUR CLAIMS DIVISION THAT YOU TAKE ACTION TO COLLECT A $1,345.72 INDEBTEDNESS FROM JOHN B. HOGAN, NOW AN EMPLOYEE OF YOUR AGENCY. THAT DEBT AROSE FROM MR. HOGAN'S FAILURE TO SERVE 12 MONTHS IN HONOLULU, HAWAII, PURSUANT TO AN OVERSEAS EMPLOYMENT AGREEMENT HE ENTERED INTO ON JUNE 18, 1956, WITH THE GENERAL SERVICES ADMINISTRATION AND REPRESENTS THE COST OF TRAVEL AND TRANSPORTATION OF MR. HOGAN, HIS DEPENDENTS, AND HOUSEHOLD EFFECTS TO HONOLULU.

THE FACTS INVOLVED WERE STATED IN OUR DECISION, B-138928, MAY 12, 1959, COPY ENCLOSED, TO MR. HOGAN AND WILL NOT BE REPEATED HERE EXCEPT AS PERTINENT TO THE PRESENT DISCUSSION OF THE CASE.

THE BASIS WHICH YOU PROPOUND FOR MR. HOGAN'S ENTITLEMENT TO THE EXPENSES OF HIS TRAVEL AND TRANSPORTATION BETWEEN ANCHORAGE, ALASKA, AND HONOLULU IS PREDICATED UPON THE FACT THAT HE SATISFACTORILY COMPLETED THE OVERSEAS EMPLOYMENT AGREEMENT HE EXECUTED WITH THE CIVIL AERONAUTICS ADMINISTRATION ON JANUARY 23, 1952, AND BECAUSE OF THAT FACT HE BECAME ELIGIBLE FOR RETURN TRANSPORTATION TO HIS ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT TO OVERSEAS DUTY. THE RECORD SHOWS THAT MR. HOGAN TOOK HOME LEAVE AFTER COMPLETING THE ABOVE AGREEMENT AND, IN CONNECTION THEREWITH, HE EXECUTED A SUPPLEMENTARY AGREEMENT FOR 24 MONTHS' SERVICE SUBSEQUENT TO HIS RETURN FROM HOME LEAVE. WE UNDERSTAND THOSE EMPLOYMENT AGREEMENTS REQUIRED 24 MONTHS OF SERVICE AT ANCHORAGE WITH THE DEPARTMENT OF COMMERCE. WE DO NOT INTERPRET THE AGREEMENTS AS MERELY REQUIRING THE EMPLOYEE TO STAY IN "GOVERNMENT SERVICE" IRRESPECTIVE OF LOCATION FOR THE STATED PERIOD OF TIME. MOREOVER, WE DO NOT VIEW THE PHRASE "TO REMAIN IN THE GOVERNMENT SERVICE," AS USED IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B- 3, AS PRECLUDING AN AGENCY FROM REQUIRING THE PERIOD OF SERVICE TO BE WITH THE PARTICULAR AGENCY WITH WHOM THE AGREEMENT IS EXECUTED. THEREFORE, BY LEAVING THE CIVIL AERONAUTICS ADMINISTRATION APPROXIMATELY 17 MONTHS AFTER RETURNING FROM HOME LEAVE MR. HOGAN VIOLATED THE SUPPLEMENTARY EMPLOYMENT AGREEMENT AND IT WOULD APPEAR THAT THE REASON FOR SUCH VIOLATION WAS NOT BEYOND HIS CONTROL. SECTION 27 (D) (2) OF EXECUTIVE ORDER NO. 9805 AS ADDED BY BUREAU OF THE BUDGET CIRCULAR A-4,DATED MAY 2, 1955 (EFFECTIVE AUGUST 31, 1954), PROVIDES THAT THE EMPLOYEE MUST BEAR THE EXPENSES OF THE RETURN TRAVEL TO HIS PLACE OF RESIDENCE WHEN, AS HERE, HE COMPLETES ONLY 17 MONTHS OF A 24-MONTH EMPLOYMENT AGREEMENT AFTER HE HAS TAKEN HOME LEAVE, BUT, IN RECOGNITION OF COMPLETION OF THE PREVIOUS PERIOD OF SERVICE, AUTHORIZES A CREDIT EQUAL TO COST OF TRANSPORTING FROM THE POST OF DUTY HIS HOUSEHOLD AND PERSONAL EFFECTS TO HIS ACTUAL PLACE OF RESIDENCE. HOWEVER, THE FACT THAT MR. HOGAN WAS NOT SEPARATED FROM GOVERNMENT SERVICE BUT WAS TRANSFERRED PLACES THE PAYMENT OF HIS TRAVEL EXPENSES UNDER SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806, AS AMENDED, 5 U.S.C. 73B-1. UNDER THAT SECTION ONLY THE RIGHT TO TRANSPORTATION FROM OLD TO NEW STATION ACCRUES TO A TRANSFERRED EMPLOYEE AND IF SUCH EMPLOYEE TRANSFERS BETWEEN AGENCIES THE COSTS OF HIS TRANSPORTATION MUST BE PAID BY THE RECEIVING AGENCY-- HERE THE GENERAL SERVICES ADMINISTRATION. BY ACCEPTING TRANSFERS AT GOVERNMENT EXPENSE TO HONOLULU AND TO NEW YORK IN THIS CASE ANY RIGHT TO TRANSPORTATION CREDIT FOR COST OF SHIPPING HIS HOUSEHOLD EFFECTS TO HIS PLACE OF RESIDENCE UNDER HIS AGREEMENTS WITH THE CIVIL AERONAUTICS ADMINISTRATION AND SECTION 27 (D) (2) OF BUREAU OF THE BUDGET CIRCULAR A-4 NO LONGER WAS FOR APPLICATION. AS NOW WORDED THE REGULATIONS CONTAIN NO PROVISION AUTHORIZING THE ALLOWANCE OF ANY SIMILAR CREDIT IN THE CIRCUMSTANCES HERE PRESENTED.

THE LIMITATION UPON PAYMENT BY THE GOVERNMENT OF THE EXPENSES OF TRANSPORTING NEW EMPLOYEES TO OVERSEAS POSTS OF DUTY UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 73B-3, ARE IMPOSED UPON THE TRANSFER OF EMPLOYEES TO OVERSEAS POSTS BY SECTION 1 OF THAT ACT. THEREFORE, AS STATED IN OUR DECISION OF MAY 12 TO MR. HOGAN THE GENERAL SERVICES ADMINISTRATION HAD NO AUTHORITY TO PAY THE EXPENSES OF MR. HOGAN'S TRAVEL AND TRANSPORTATION TO HONOLULU WITHOUT REQUIRING HIM TO EXECUTE AN EMPLOYMENT AGREEMENT UNDER WHICH HE AGREED TO REIMBURSE THE GOVERNMENT FOR THE COST OF TRANSPORTATION TO HIS OVERSEAS STATION IF HE FAILED TO SERVE ONE YEAR UNDER THAT AGREEMENT. THE RECORD IS CLEAR THAT MR. HOGAN WAS ON NOTICE AT THE TIME OF HIS DEPARTURE FROM HONOLULU FOR NEW YORK THAT THE GENERAL SERVICES ADMINISTRATION CONSIDERED THAT HE HAD VIOLATED HIS AGREEMENT. IT IS CLEAR ALSO THAT HE HAD BEEN INFORMED BY THE CIVIL AERONAUTICS ADMINISTRATION, PRIOR TO HIS ACCEPTANCE OF THE POSITION WITH THE GENERAL SERVICES ADMINISTRATION, THAT IT WOULD NOT BE LIABLE FOR THE TRAVEL AND TRANSPORTATION EXPENSES ARISING OUT OF THAT TRANSFER. THEREFORE, SINCE THE REASON FOR MR. HOGAN'S FAILURE TO COMPLETE THAT AGREEMENT WAS WELL WITHIN HIS CONTROL HE MUST REIMBURSE THE GOVERNMENT FOR THE COST OF HIS TRAVEL AND TRANSPORTATION TO HONOLULU.

WE NOTE THAT WHEN MR. HOGAN TOOK HOME LEAVE IN 1955 HE TRAVELED AT GOVERNMENT EXPENSE FROM ANCHORAGE TO TAMPA, FLORIDA, AND RETURN, EVEN THOUGH HE HAD DESIGNATED NEW YORK AS HIS RESIDENCE IN EXECUTING THE EMPLOYMENT AGREEMENT WITH THE GENERAL SERVICES ADMINISTRATION. HOWEVER, WE WILL NOT FURTHER QUESTION THE PROPRIETY OF MR. HOGAN'S HOME LEAVE IN TAMPA AT THIS TIME ALTHOUGH, ON THE PRESENT RECORD, OUR INCLINATION IS TO THE VIEW THAT AUBURN, NEW YORK, WAS HIS ACTUAL PLACE OF RESIDENCE AT TIME OF HIS APPOINTMENT IN 1947. IN ARRIVING AT THE CONCLUSIONS HEREIN WE HAVE NOT CONSIDERED EQUITIES THAT MAY BE INVOLVED FROM EITHER MR. HOGAN'S OR THE GOVERNMENT'S STANDPOINT SINCE OUR OFFICE MUST DECIDE THE CASE UPON THE BASIS OF THE STATUTE AND REGULATIONS.

FOR THE REASONS STATED, YOUR COMPLIANCE WITH OUR CLAIMS DIVISION LETTER OF AUGUST 26, 1959, IS REQUESTED.