B-165500, NOV. 22, 1968

B-165500, NOV. 22, 1968

TO MR. ROBERT E. HODGE:

THIS IS IN REPLY TO YOUR LETTER OF SEPTEMBER 23, 1968, APPEALING FROM OFFICE SETTLEMENT DATED JULY 9, 1968, WHICH AFFIRMED YOUR LIABILITY FOR AN ERRONEOUS PAYMENT (IN THE AMOUNT OF $96.20) REPRESENTING SUBSISTENCE EXPENSES IN CONNECTION WITH YOUR TRANSFER TO HONOLULU, HAWAII, IN NOVEMBER 1966 AS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION.

IN YOUR EARLIER LETTER OF MAY 22, 1968, YOU STATE THAT YOU ARRIVED IN HONOLULU ON NOVEMBER 22, 1966, AND STAYED AT THE PACIFIC POLYNESIAN HOTEL UNTIL DECEMBER 30, 1966. ON THE FOLLOWING DAY YOU MOVED INTO THE DWELLING AT 45-269 POUHANUU PLACE, KANEOHE, WHERE YOU CONTINUED TO RESIDE DURING YOUR ASSIGNMENT IN HAWAII. PRIOR TO THE ARRIVAL OF YOUR HOUSEHOLD EFFECTS ON JANUARY 12, 1967, YOU RENTED FURNITURE AT A COST OF $96.20 WHICH YOU USED FROM DECEMBER 31, 1966, TO JANUARY 12, 1967. THAT AMOUNT ($96.20) WHICH ORIGINALLY WAS PAID TO YOU AND SUBSEQUENTLY RECOVERED IS THE SUBJECT OF YOUR PRESENT APPEAL.

YOU STATE THAT YOU COULD HAVE REMAINED IN TEMPORARY QUARTERS AT THE HOTEL FOR ANOTHER 20 DAYS AT GREATER EXPENSE TO THE GOVERNMENT. HOWEVER, YOU WERE ADVISED BY THE VOUCHER EXAMINER THAT THE EXPENSE OF RENTING FURNITURE WHILE IN PERMANENT QUARTERS AWAITING THE ARRIVAL OF YOUR HOUSEHOLD EFFECTS WAS REIMBURSABLE SINCE IT WAS NOT IN EXCESS OF THE COST OF TEMPORARY QUARTERS. HAVING ACTED IN RELIANCE OF SUCH ADVICE YOU FEEL THAT YOU SHOULD NOT HAVE BEEN REQUIRED TO REFUND THE AMOUNT EXPENDED IN RENTING THE FURNITURE.

SECTION 2.5B (3), BUREAU OF THE BUDGET CIRCULAR NO. A-56, APPROVED OCTOBER 12, 1966, READS AS FOLLOWS:

"TEMPORARY QUARTERS REFER TO LODGING OBTAINED TEMPORARILY, AFTER A TRANSFER HAS BEEN AUTHORIZED OR APPROVED AND AFTER THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY VACATE THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME OF THE TRANSFER, UNTIL THE EMPLOYEE MOVES, WITHIN THE ALLOWABLE 30 OR 60 DAYS' TIME LIMIT INTO PERMANENT RESIDENCE QUARTERS.'

IN INTERPRETING THE FOREGOING PROVISION WE HAVE HELD THAT THE ABSENCE OF FURNITURE DOES NOT CHANGE THE CHARACTER OF PERMANENT QUARTERS TO TEMPORARY QUARTERS. SEE B-161363, MAY 8, 1967; B-160970, MARCH 24, 1967, COPIES ENCLOSED. SINCE THE RENTAL OF FURNITURE CAN BE ALLOWED ONLY WHEN INCIDENT TO THE OCCUPATION OF TEMPORARY QUARTERS IT IS NOT A REIMBURSABLE EXPENSE WHEN THE EMPLOYEE, IN FACT, IS OCCUPYING PERMANENT QUARTERS. B-161530, JUNE 14, 1967, COPY ENCLOSED.

INSOFAR AS YOUR CONTENTION THAT YOU SHOULD NOT HAVE TO BEAR THE COST OF THE ERRONEOUS ADVICE FROM ADMINISTRATORS IT HAS LONG BEEN THE RULE THAT THE UNITED STATES CANNOT BE BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE THROUGH ADMINISTRATIVE ERROR BY ITS OFFICERS WHETHER MADE UNDER MISTAKE OF FACT OR OF LAW. PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM AND THE COURTS CONSISTENTLY HAVE HELD THAT THEY ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES ET AL. V DISTRICT OF COLUMBIA, 22 CT. CL. 366; UNITED STATES V BURCHARD, 125 U.S. 176; WISCONSIN CENTRAL RAILROAD V UNITED STATES, 164 U.S. 190, AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V SUTTON CHEMICAL COMPANY, 11 F.2D 24.

FOR THE REASONS SET FORTH ABOVE, THE OFFICE SETTLEMENT OF JULY 9 DENYING YOUR CLAIM IS SUSTAINED.