B-159729, AUG. 25, 1966

B-159729: Aug 25, 1966

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YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NONTEMPORARY STORAGE OF THE HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED NOR APPROVED BY THE AGENCY AS REQUIRED BY THE APPLICABLE LAW AND REGULATIONS. YOU WERE NOTIFIED OF YOUR TRANSFER FROM SAN FRANCISCO TO HONG KONG ON OR ABOUT DECEMBER 2. TRANSPORTATION OF FAMILY AND PERSONAL EFFECTS IS AUTHORIZED IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. IN LINE WITH THE POLICY THEN BEING FOLLOWED BY THE AGENCY NONTEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS WAS NOT AUTHORIZED. THE MATTER OF SUCH STORAGE HAD BEEN THE SUBJECT OF A DISCUSSION BETWEEN YOU AND THE AGENCY OFFICIALS AND YOU WERE AWARE OF THE AGENCY'S POLICY IN THAT REGARD.

B-159729, AUG. 25, 1966

TO MR. PETER B. NIBLO:

THIS REFERS TO YOUR LETTER OF JUNE 17, 1966, AND THOSE OF YOUR ATTORNEYS DATED JUNE 24 AND AUGUST 12, 1966, REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 6, 1966, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF NONTEMPORARY STORAGE OF YOUR HOUSEHOLD GOODS IN THE UNITED STATES DURING THE PERIOD OF YOUR ASSIGNMENT TO THE HONG KONG BRANCH, BUREAU OF NARCOTICS, FROM DECEMBER 1963 TO DECEMBER 1965.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NONTEMPORARY STORAGE OF THE HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED NOR APPROVED BY THE AGENCY AS REQUIRED BY THE APPLICABLE LAW AND REGULATIONS.

BY LETTER OF NOVEMBER 19, 1963, YOU WERE NOTIFIED OF YOUR TRANSFER FROM SAN FRANCISCO TO HONG KONG ON OR ABOUT DECEMBER 2, 1963, THE EFFECTIVE DATE TO BE THE DATE YOU REPORTED TO THE HONG KONG OFFICE. PARAGRAPH TWO OF THE LETTER CONTAINED THE FOLLOWING STATEMENT:

"ALLOWANCE OF TRAVEL EXPENSES, TRANSPORTATION OF FAMILY AND PERSONAL EFFECTS IS AUTHORIZED IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED; AND BUREAU OF BUDGET CIRCULAR NO. A-56 AND CONSOLIDATED TRAVEL AUTHORIZATION NO. 1-64, DATED JULY 1, 1963.'

IN LINE WITH THE POLICY THEN BEING FOLLOWED BY THE AGENCY NONTEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS WAS NOT AUTHORIZED. THE MATTER OF SUCH STORAGE HAD BEEN THE SUBJECT OF A DISCUSSION BETWEEN YOU AND THE AGENCY OFFICIALS AND YOU WERE AWARE OF THE AGENCY'S POLICY IN THAT REGARD.

PURSUANT TO THE AUTHORIZATION YOU TRANSFERRED TO THE HONG KONG OFFICE WHERE YOU REMAINED UNTIL DECEMBER 1965. APPARENTLY YOU WERE REIMBURSED FOR EXPENSES OF TRAVEL AND TRANSPORTATION INCURRED UNDER THE AUTHORIZATION.

THE AGENCY HAS INFORMED US THAT IN SEPTEMBER 1964 IT CHANGED ITS POLICY CONCERNING PAYMENT FOR NONTEMPORARY STORAGE AND THEREAFTER WITHIN SPECIFIED LIMITS AUTHORIZED SUCH CHARGES FOR QUALIFIED EMPLOYEES WHO TRANSFERRED SUBSEQUENT TO THE CHANGE. HOWEVER, THE AGENCY EMPLOYEES WHO ALREADY WERE OVERSEAS WERE EXPRESSLY EXCLUDED AND YOU WERE SO ADVISED BY THE AGENCY IN RESPONSE TO YOUR CLAIM.

THE APPLICABLE STATUTORY AUTHORITY WILL BE FOUND IN 5 U.S.C. 73B-1 (E) WHICH PROVIDES THAT STORAGE AND RELATED CHARGES MAY BE ALLOWED "IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT * * *.' THE AUTHORITY TO PRESCRIBE SUCH REGULATIONS WAS DELEGATED TO THE DIRECTOR OF THE BUREAU OF THE BUDGET BY EXECUTIVE ORDER NO. 10530 DATED MAY 10, 1954, AS AMENDED. THE REGULATIONS ISSUED BY THE BUREAU PURSUANT TO THAT ORDER PROVIDE THAT WHEN ONE OF THE CONDITIONS SPECIFIED THEREIN IS MET EMPLOYEES MAY BE ALLOWED NONTEMPORARY STORAGE "UNDER REGULATIONS AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED.' THUS, THE AUTHORIZATION OR APPROVAL OF NONTEMPORARY STORAGE OF THE EMPLOYEE'S HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS NOT MANDATORY BUT IS A MATTER OF AGENCY DETERMINATION AND DISCRETION.

IT IS NOT SHOWN NOR IS IT CONTENDED THAT ALL EMPLOYEES OF THE AGENCY WHO WERE SIMILARLY SITUATED WERE NOT ACCORDED THE SAME TREATMENT. THE FACT THAT THOSE WHO TRANSFERRED OVERSEAS SUBSEQUENT TO SEPTEMBER 1964 WERE ALLOWED STORAGE CHARGES WHICH WERE DENIED TO THOSE WHO PREVIOUSLY HAD SO TRANSFERRED RESULTED FROM A CHANGE IN POLICY WHICH THE AGENCY WAS EMPOWERED TO MAKE.

THE DISBURSEMENT OF PUBLIC FUNDS MUST BE MADE IN ACCORDANCE WITH THE APPLICABLE LAWS AND IMPLEMENTING REGULATIONS WHICH HAVE THE FORCE AND EFFECT OF LAW. PAYMENTS NOT IN CONFORMITY THEREWITH ARE IMPROPER. THEREFORE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF JUNE 6, 1966, BY WHICH YOUR CLAIM WAS DISALLOWED.

YOUR ATTORNEYS REQUESTED OUR OFFICE TO DEFER ANY ACTION TO COLLECT THE $550.50 ADVANCE OF FUNDS UNTIL FINAL DISPOSITION OF YOUR CLAIM FOR NONTEMPORARY STORAGE AND UNTIL THEY COULD ADVISE YOU CONCERNING YOUR RIGHTS AND OBLIGATIONS. THE PRESENT DECISION SUSTAINS THE DISALLOWANCE OF THE CLAIM AND THUS THE $550.50 IS DUE. SINCE COLLECTION ACTION IN THE CIRCUMSTANCES IS FOR HANDLING BY THE ADMINISTRATIVE OFFICE CONCERNED OUR OFFICE WOULD NOT BE WARRANTED IN REQUESTING FURTHER ADMINISTRATIVE DELAY IN ITS ACTION TO RECOVER THE ADVANCE OF FUNDS.