B-162215, SEP. 6, 1967

B-162215: Sep 6, 1967

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EMPLOYEE APPOINTED TO SHORTAGE CATEGORY POSITION WHO CLAIMS DIFFERENCE BETWEEN AMOUNT ALLOWED FOR TRANSPORTATION OF EFFECTS AND ACTUAL COSTS AS WELL AS ROUND TRIP TRAVEL TO FIND RESIDENCE MUST HAVE SETTLEMENT DISALLOWING CLAIM SUSTAINED SINCE AMOUNT PAID FOR TRANSPORTATION OF HOUSEHOLD GOODS WAS AT COMMUTED RATE PRECLUDING ANY ADDITIONAL REIMBURSEMENT. ALTHOUGH EMPLOYEE WAS ERRONEOUSLY ADVISED THAT HE WOULD BE ENTITLED TO TRAVEL EXPENSES FOR FINDING RESIDENCE. THERE IS NO AUTHORITY FOR SUCH EXPENSES PRIOR TO APPOINTMENT AND GOVT. IS NOT BOUND BY ACTS OF AGENT BEYOND AUTHORITY. WHICH CLAIM WAS DISALLOWED BY THE SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE. THE AUTHORITY FOR PAYMENT BY THE GOVERNMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES YOU INCURRED IN REPORTING TO YOUR FIRST DUTY STATION IS APPARENTLY THAT CONTAINED IN 5 U.S.C. 5723.

B-162215, SEP. 6, 1967

TRAVEL EXPENSES - FIRST DUTY STATION DECISION REVIEWING CLAIM OF ARMY SECURITY AGENCY EMPLOYEE FOR ROUND TRIP TRAVEL AND SUBSISTENCE TO FIND SUITABLE HOUSING INCIDENT TO APPOINTMENT. EMPLOYEE APPOINTED TO SHORTAGE CATEGORY POSITION WHO CLAIMS DIFFERENCE BETWEEN AMOUNT ALLOWED FOR TRANSPORTATION OF EFFECTS AND ACTUAL COSTS AS WELL AS ROUND TRIP TRAVEL TO FIND RESIDENCE MUST HAVE SETTLEMENT DISALLOWING CLAIM SUSTAINED SINCE AMOUNT PAID FOR TRANSPORTATION OF HOUSEHOLD GOODS WAS AT COMMUTED RATE PRECLUDING ANY ADDITIONAL REIMBURSEMENT; AND ALTHOUGH EMPLOYEE WAS ERRONEOUSLY ADVISED THAT HE WOULD BE ENTITLED TO TRAVEL EXPENSES FOR FINDING RESIDENCE, THERE IS NO AUTHORITY FOR SUCH EXPENSES PRIOR TO APPOINTMENT AND GOVT. IS NOT BOUND BY ACTS OF AGENT BEYOND AUTHORITY.

TO MR. GERALD B. SHAMLA:

WE REFER TO YOUR LETTER OF JULY 27, 1967, BY WHICH YOU REQUEST OUR REVIEW OF YOUR CLAIM FOR REIMBURSEMENT OF CERTAIN EXPENSES YOU INCURRED IN CONNECTION WITH YOUR TRAVEL AND THE TRANSPORTATION OF YOUR FAMILY AND YOUR HOUSEHOLD EFFECTS FROM YOUR RESIDENCE IN HUNTSVILLE, ALABAMA, TO YOUR FIRST DUTY STATION IN ARLINGTON, VIRGINIA, INCIDENT TO YOUR APPOINTMENT AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN OCTOBER 1966, WHICH CLAIM WAS DISALLOWED BY THE SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE, DATED JULY 14, 1967.

THE AUTHORITY FOR PAYMENT BY THE GOVERNMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES YOU INCURRED IN REPORTING TO YOUR FIRST DUTY STATION IS APPARENTLY THAT CONTAINED IN 5 U.S.C. 5723. THAT SECTION AUTHORIZES GOVERNMENT AGENCIES TO REIMBURSE NEW EMPLOYEES APPOINTED TO SHORTAGE CATEGORY POSITIONS CERTAIN EXPENSES THEY INCUR FOR THEIR TRAVEL AND FOR THE TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND HOUSEHOLD GOODS FROM THEIR RESIDENCES AT THE TIME OF SELECTION FOR APPOINTMENT TO THEIR FIRST DUTY STATIONS. YOU HAVE BEEN REIMBURSED CERTAIN EXPENSES OF TRAVEL AND TRANSPORTATION AND YOUR PRESENT CLAIM IS FOR THE DIFFERENCE BETWEEN THE AMOUNT ALLOWED YOU FOR TRANSPORTATION OF YOUR HOUSEHOLD GOODS AND THE ACTUAL COST OF SUCH TRANSPORTATION, FOR THE COST OF THE ROUND TRIP TRAVEL YOU AND YOUR WIFE PERFORMED FROM YOUR RESIDENCE TO YOUR FIRST DUTY STATION FOR THE PURPOSE OF FINDING SUITABLE HOUSING, AND FOR PER DIEM FOR YOUR IMMEDIATE FAMILY WHILE TRAVELING FROM YOUR RESIDENCE TO YOUR FIRST DUTY STATION.

THE COSTS INCURRED BY TRANSFERRED EMPLOYEES AND NEW APPOINTEES FOR TRANSPORTING THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS MAY BE REIMBURSED UNDER 5 U.S.C. 5724 (C) WHICH PROVIDES:

"/C) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN EMPLOYEE WHO TRANSFERS BETWEEN POINTS INSIDE THE CONTINENTAL UNITED STATES, INSTEAD OF BEING PAID FOR THE ACTUAL EXPENSES OF TRANSPORTING, PACKING, CRATING, TEMPORARILY STORING, DRAYING, AND UNPACKING, OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, SHALL BE REIMBURSED ON A COMMUTED BASIS AT THE RATES PER 100 POUNDS THAT ARE FIXED BY ZONES IN THE REGULATIONS. THE REIMBURSEMENT MAY NOT EXCEED THE AMOUNT WHICH WOULD BE ALLOWABLE FOR THE AUTHORIZED WEIGHT ALLOWANCE.'

THE AMOUNT YOU WERE PAID FOR TRANSPORTATION OF YOUR HOUSEHOLD GOODS WAS THE COMMUTED RATE PRESCRIBED UNDER THE AUTHORITY OF THAT SECTION. THE LAW DOES NOT AUTHORIZE ANY ADDITIONAL REIMBURSEMENT BECAUSE THE EXPENSES INCURRED ARE IN EXCESS OF THE AMOUNT TO WHICH ENTITLED UNDER THE COMMUTED RATE PRESCRIBED IN ACCORDANCE WITH THAT SECTION.

REGARDING YOUR CLAIMS FOR ROUND TRIP TRAVEL TO YOUR OFFICIAL STATION TO SEEK SUITABLE HOUSING AND FOR PER DIEM FOR YOUR IMMEDIATE FAMILY WHILE TRAVELING FROM YOUR RESIDENCE TO YOUR OFFICIAL STATION, IT IS CLEAR THAT THE APPLICABLE PROVISIONS OF LAW AND REGULATIONS DO NOT AUTHORIZE PAYMENTS TO NEW APPOINTEES ON ACCOUNT OF SUCH EXPENSES.

THE LETTER YOU RECEIVED FROM THE DEPARTMENT OF THE ARMY PRIOR TO YOUR APPOINTMENT WHICH ERRONEOUSLY ADVISED YOU THAT REIMBURSEMENT FOR EXPENSES OF THE TYPE IN QUESTION WOULD BE ALLOWABLE MAY NOT BE CONSIDERED AS BINDING UPON THE GOVERNMENT. THE GOVERNMENT OFFICIAL CONCERNED ACTED BEYOND THE SCOPE OF HIS AUTHORITY IN THAT HE ADVISED YOU THAT CERTAIN EXPENSES OF YOUR TRAVEL AND TRANSPORTATION WOULD BE PAID BY THE GOVERNMENT WHEN NO LEGAL AUTHORITY EXISTED FOR THE PAYMENT OF SUCH EXPENSES. IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND BY THE ACTS OF ITS AGENTS WHEN THEY ARE ACTING BEYOND THE SCOPE OF THEIR AUTHORITY. B-156327, MARCH 24, 1965, COPY ENCLOSED.

FOR THE REASONS STATED THE SETTLEMENT OF JULY 14, 1967, IS SUSTAINED.

YOU MAY BE ADVISED THAT SETTLEMENTS OF THIS OFFICE ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. 31 U.S.C. 74. HOWEVER, YOU ARE, OF COURSE, FREE TO PURSUE YOUR CLAIM IN THE COURTS. SEE 28 U.S.C. 1346.