B-158270, APR. 8, 1966

B-158270: Apr 8, 1966

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THE RECORD SHOWS THAT THE CHANGE OF STATION WAS EFFECTIVE ON OR ABOUT MAY 1. THE CLAIM WAS DISALLOWED BECAUSE THE TRANSPORTATION DID NOT BEGIN WITHIN THE TWO-YEAR PERIOD ALLOWED BY SECTION 1.6 OF THE REGULATIONS IN BUREAU OF THE BUDGET CIRCULAR NO. WE HAVE NO AUTHORITY TO WAIVE SUCH STATUTORY REGULATIONS. WERE STILL IN EFFECT ON THE EFFECTIVE DATE OF YOUR CHANGE OF STATION. SINCE THE TIME LIMITATION PROVISIONS OF SECTION 5 OF THE EXECUTIVE ORDER AND THOSE OF SECTION 1.6 OF THE CIRCULAR ARE SUBSTANTIALLY IDENTICAL SO FAR AS HERE PERTINENT. IT IS UNNECESSARY TO DECIDE AT THIS TIME WHICH OF THE TWO SETS OF REGULATIONS IS APPLICABLE. THE INTRODUCTORY PHRASE OF SAID SECTION 1 (A) IS "UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE.

B-158270, APR. 8, 1966

TO MR. GEORGE F. PHILLIPS:

ON DECEMBER 16, 1965, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT OF NOVEMBER 17, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR FAMILY AND HOUSEHOLD EFFECTS FROM YOUR FORMER OFFICIAL STATION AT SAN FRANCISCO, CALIFORNIA, TO YOUR NEW STATION AT WASHINGTON, D.C., IN CONNECTION WITH YOUR EMPLOYMENT WITH THE GENERAL SERVICES ADMINISTRATION.

THE RECORD SHOWS THAT THE CHANGE OF STATION WAS EFFECTIVE ON OR ABOUT MAY 1, 1962, BUT THAT THE TRANSPORTATION IN QUESTION DID NOT COMMERCE UNTIL SOMETIME IN 1965. THE CLAIM WAS DISALLOWED BECAUSE THE TRANSPORTATION DID NOT BEGIN WITHIN THE TWO-YEAR PERIOD ALLOWED BY SECTION 1.6 OF THE REGULATIONS IN BUREAU OF THE BUDGET CIRCULAR NO. A 56 PROMULGATED PURSUANT TO LAW AND EXECUTIVE ORDER, AND WE HAVE NO AUTHORITY TO WAIVE SUCH STATUTORY REGULATIONS. IN RESPONSE TO A REQUEST BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, IN YOUR BEHALF, THE DEPUTY DIRECTOR, BUREAU OF THE BUDGET, HAD ADVISED ON JUNE 25, 1965, TO LIKE EFFECT, CITING OUT DECISION IN 37 COMP. GEN. 820 CONCERNING WAIVER OF STATUTORY REGULATIONS.

PRELIMINARILY, WE SHOULD POINT OUT THAT CIRCULAR NO. A-56 DID NOT BECOME EFFECTIVE UNTIL JUNE 1, 1962, SO THAT THE REGULATIONS PROMULGATED BY EXECUTIVE ORDER NO. 9805, AS AMENDED, WERE STILL IN EFFECT ON THE EFFECTIVE DATE OF YOUR CHANGE OF STATION. HOWEVER, SINCE THE TIME LIMITATION PROVISIONS OF SECTION 5 OF THE EXECUTIVE ORDER AND THOSE OF SECTION 1.6 OF THE CIRCULAR ARE SUBSTANTIALLY IDENTICAL SO FAR AS HERE PERTINENT, IT IS UNNECESSARY TO DECIDE AT THIS TIME WHICH OF THE TWO SETS OF REGULATIONS IS APPLICABLE, THE EFFECT BEING THE SAME IN EITHER EVENT.

YOU CONTEND IN SUBSTANCE THAT NEITHER THE STATUTORY AUTHORIZATION, SECTION 1 (A) OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806, AS AMENDED, 5 U.S.C. 73B-1 (A), NOR THE CHANGE OF STATION ORDERS (WHICH SPECIFICALLY AUTHORIZED THE TRANSPORTATION OF YOUR FAMILY AND HOUSEHOLD EFFECTS) PRESCRIBES ANY TIME LIMITATION ON THE TRANSPORTATION AND YOU WOULD CONCLUDE, THEREFORE, THAT THE TIME LIMIT SPECIFIED IN THE REGULATIONS MAY NOT BE APPLIED IN YOUR CASE.

THE INTRODUCTORY PHRASE OF SAID SECTION 1 (A) IS "UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE. THE REGULATIONS HAVING BEEN ISSUED (EITHER BY THE PRESIDENT OR BY THE DIRECTOR, BUREAU OF THE BUDGET, UNDER DELEGATED AUTHORITY, AS THE CASE MAY BE) PURSUANT TO STATUTORY DIRECTIVE, AND SINCE THE TIME LIMITATION SPECIFIED IS NOT UNREASONABLE NOR INCONSISTENT WITH ANY PROVISIONS OF THE STATUTE, WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF THE LIMITATION. BEING VALID, IT HAS THE FORCE AND EFFECT OF THE STATUTE ITSELF AND MAY NOT BE WAIVED IN AN INDIVIDUAL CASE, NO MATTER HOW APPEALING, EXCEPT BY LEGISLATION. 37 COMP. GEN. 820, 821, SUPRA, AND DECISIONS THERE CITED.

FOR ANOTHER THING, WE POINT OUT THAT THE FIRST GENERAL STATUTE, ACT OF OCTOBER 10, 1940, 54 STAT. 1105, CONCERNING THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF GOVERNMENT EMPLOYEES ALSO AUTHORIZED THE PRESIDENT TO ISSUE REGULATION, AND THEREUNDER BY SECTION 12 OF EXECUTIVE ORDER NO. 8588, AS AMENDED, TIME LIMITATIONS, MORE RESTRICTIVE THAN THE ONE HERE INVOLVED, WERE PRESCRIBED. THEREFORE, THE SUBSTANCE, IN PART, OF THE 1940 STATUTE HAVING BEEN REENACTED BY THE 1946 STATUTE WITHOUT THE IMPOSITION OF ANY RESTRICTION ON THE PRESIDENT IN THE MATTER OF PRESCRIBING TIME LIMITATIONS, THE REASONABLE CONCLUSION IS THAT THE INTERPRETATION OF THE PRESIDENT AS TO THE SCOPE OF HIS AUTHORITY IN PROMULGATING REGULATIONS PURSUANT TO THE STATUTE HAS RECEIVED LEGISLATIVE AFFIRMATION. THAT CONCLUSION IS SUPPORTED BY DECISIONS OF THE UNITED STATES SUPREME COURT IN, AMONG OTHERS, LABOR BOARD V. GULLETT GIN CO., 340 U.S. 361, 366; UNITED STATES V. DAKOTA-MONTANA OIL CO., 288 ID. 459, 466; COSTANZO V. TILLINGHAST, 287 ID. 341, 345. THE SAME CONCLUSION WOULD ALSO BE WARRANTED BY THE FACT THAT THE 1940 STATUTE HAS BEEN AMENDED ON SEVERAL OCCASIONS WITHOUT ANY MODIFICATION PERTINENT TO THE MATTER HERE IN QUESTION.

YOU APPEAR TO BE OF THE VIEW, ALSO, THAT THE OMISSION FROM THE TRAVEL AUTHORIZATION OF A SPECIFIC REFERENCE TO A TIME LIMITATION OR TO THE REGULATIONS PRESCRIBING THE LIMITATION WOULD JUSTIFY A WAIVER OF THE LIMITATION IN YOUR FAVOR. HOWEVER, SUCH IS NOT THE CASE. THE SOLE AUTHORITY FOR PAYMENT OF THE TRANSPORTATION EXPENSES FROM APPROPRIATED FUNDS IS THE 1946 STATUTE, AS AMENDED, AND THE REGULATIONS ISSUED PURSUANT THERETO. CF. 22 COMP. GEN.895. CONSEQUENTLY THE LIMITATION OF THE REGULATIONS APPLY REGARDLESS OF WHETHER YOU WERE GIVEN ACTUAL NOTICE THEREOF. IN THAT CONNECTION, WE POINT OUT THAT EXECUTIVE ORDER NO. 9805, REFERRED TO ABOVE, WAS PUBLISHED IN THE FEDERAL REGISTER (11 F.R. 13823) AS AUTHORIZED BY LAW (44 U.S.C. 305); AND SUCH PUBLICATION CONSTITUTES CONSTRUCTIVE NOTICE OF THE CONTENTS THEREOF TO ANY PERSON AFFECTED THEREBY (44 U.S.C. 307; FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380; LYNSKY V. UNITED STATES, 130 CT.CL. 149, 152-153). WHILE CIRCULAR NO. A- 56 WAS NOT SO PUBLISHED, NEVERTHELESS, YOU HAD CONSTRUCTIVE NOTICE OF THE TIME LIMITATION IN THE EXECUTIVE ORDER WHICH WAS APPLICABLE ON THE EFFECTIVE DATE OF YOUR CHANGE OF STATION, AS EXPLAINED ABOVE. FURTHERMORE, WE NOTE THAT ITEM 22 OF YOUR TRAVEL AUTHORIZATION DIRECTED ATTENTION TO "EXISTING GSA TRAVEL POLICY.' THAT POLICY IS SET FORTH IN CHAPTER 7 OF THE GSA ADMINISTRATIVE MANUAL SECTION 12 OF WHICH SPECIFIED THAT TRAVEL AND TRANSPORTATION ALLOWANCES IN CONNECTION WITH CHANGE OF OFFICIAL STATION WERE COVERED BY EXECUTIVE ORDER NO. 9805, AS AMENDED, AND SECTION 24 C 4 (B) OF WHICH DIRECTS ATTENTION TO THE TWO-YEAR LIMITATION FOR TRAVEL AND TRANSPORTATION.

THE GENERAL RULE IS THAT THE UNITED STATES IS NOT LIABLE IN DAMAGES FOR THE OMISSIONS OF ITS OFFICERS AND EMPLOYEES. 22 COMP. GEN. 221. WE KNOW OF NO AUTHORITY UNDER WHICH, CONTRARY TO THAT GENERAL RULE, YOU COULD BE COMPENSATED ON THE "INJURY" THEORY SUGGESTED BY YOU.

WE HAVE GIVEN MOST CAREFUL CONSIDERATION TO YOUR CONTENTIONS BUT WE MUST CONCLUDE THAT, NOTWITHSTANDING THE IMPRACTICABILITY, FROM YOUR POINT OF VIEW, OF COMMENCING THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS AND FAMILY WITHIN THE TWO-YEAR PERIOD PRESCRIBED BY THE REGULATIONS, AS WELL AS THE PERSONAL HARDSHIP INVOLVED, WE HAVE NO AUTHORITY TO WAIVE THE LIMITATION. THEREFORE, THE SETTLEMENT OF NOVEMBER 17, 1965, MUST BE SUSTAINED.