B-165389, OCT. 22, 1968

B-165389: Oct 22, 1968

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SCHULLERY: THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 4. IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER A FEDERAL AVIATION ADMINISTRATION EMPLOYEE IS ENTITLED TO SUBSISTENCE EXPENSES WHILE OCCUPYING LEASED. UNFURNISHED QUARTERS FOR THE PERIOD BEFORE HIS HOUSEHOLD EFFECTS ARRIVED AND WHETHER THOSE QUARTERS WERE TEMPORARY WITHIN THE MEANING OF BUREAU OF THE BUDGET CIRCULAR NO. THE PERTINENT FACTS AS SET FORTH IN YOUR LETTER ARE THAT THE EMPLOYEE AND FAMILY ARRIVED AT HIS NEW OFFICIAL STATION (HONOLULU. BEDS AND LINEN FOR CHILDREN WERE RENTED AND MEALS WERE TAKEN OUT UNTIL FEBRUARY 24. WHEN THE EMPLOYEE'S HOUSEHOLD EFFECTS WERE DELIVERED. THE SITUATION YOU PRESENT IS NOT MATERIALLY DIFFERENT FROM THOSE CONSIDERED IN THE DECISIONS CITED IN YOUR LETTER.

B-165389, OCT. 22, 1968

TO MR. R. J. SCHULLERY:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 4, 1968, REFERENCE MS 430, IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER A FEDERAL AVIATION ADMINISTRATION EMPLOYEE IS ENTITLED TO SUBSISTENCE EXPENSES WHILE OCCUPYING LEASED, UNFURNISHED QUARTERS FOR THE PERIOD BEFORE HIS HOUSEHOLD EFFECTS ARRIVED AND WHETHER THOSE QUARTERS WERE TEMPORARY WITHIN THE MEANING OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, SECTION 2.5B (3).

THE PERTINENT FACTS AS SET FORTH IN YOUR LETTER ARE THAT THE EMPLOYEE AND FAMILY ARRIVED AT HIS NEW OFFICIAL STATION (HONOLULU, HAWAII) ON DECEMBER 30, 1966, AND OCCUPIED TEMPORARY QUARTERS IN HOTELS UNTIL JANUARY 8, 1967, WHEN THEY TOOK POSSESSION OF AN UNFURNISHED HOUSE (EXCEPT FOR A BED, STOVE AND REFRIGERATOR) UNDER A 12 - MONTH LEASE. BEDS AND LINEN FOR CHILDREN WERE RENTED AND MEALS WERE TAKEN OUT UNTIL FEBRUARY 24, 1967, WHEN THE EMPLOYEE'S HOUSEHOLD EFFECTS WERE DELIVERED. THE QUESTIONABLE PERIOD EXTENDS FROM JANUARY 8 THROUGH FEBRUARY 23, 1967.

THE SITUATION YOU PRESENT IS NOT MATERIALLY DIFFERENT FROM THOSE CONSIDERED IN THE DECISIONS CITED IN YOUR LETTER, B-161363 AND B 160970, DATED MAY 8, 1967, AND MARCH 4, 1967, RESPECTIVELY. IN THE INSTANT CASE, NOT ONLY DID THE HOUSE WHICH WAS OCCUPIED ON JANUARY 8 CONSTITUTE A TYPE OF QUARTERS GENERALLY RECOGNIZED AND ACCEPTED AS BEING PERMANENT BUT IT WAS OCCUPIED UNDER A LONG TERM LEASE AND THE EMPLOYEE AND FAMILY ACTUALLY UTILIZED SUCH HOUSE AS PERMANENT QUARTERS AFTER THE ARRIVAL OF THEIR HOUSEHOLD EFFECTS. THUS, THE FACTS APPEARING CLEARLY ESTABLISH THAT THE QUARTERS WERE PERMANENT REGARDLESS OF THE SUBJECTIVE INTENT OF THE EMPLOYEE AND THE INCORRECT ADVICE FURNISHED THE EMPLOYEE BY HIS SUPERVISOR. IN SUCH CONNECTION IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT LIABLE FOR UNAUTHORIZED ACTS OF ITS OFFICERS. WILBER NATIONAL BANK V UNITED STATES, 294 U.S. 120, 123.

ACCORDINGLY, IT IS OUR DECISION THAT THE EMPLOYEE IN THIS CASE WAS NOT OCCUPYING TEMPORARY QUARTERS WITHIN THE MEANING OF SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 AND, THEREFORE, IS NOT ENTITLED TO SUBSISTENCE EXPENSES FOR THE PERIOD JANUARY 8, 1967, TO FEBRUARY 23, 1967.

THE VOUCHERS AND SUPPORTING DOCUMENTS ARE RETURNED HEREWITH. COLLECTION OF THE AMOUNT OWING THE GOVERNMENT AS THE RESULT OF THE INCORRECT PAYMENT OF THE SUBSISTENCE ALLOWANCE SHOULD BE EFFECTED.