B-167871, SEP. 29, 1969

B-167871, SEP. 29, 1969

CIVIL PAY - SUBSISTENCE EXPENSES - ADDITIONAL DECISION SUSTAINING DISALLOWANCE OF CLAIM OF OVERSEAS CIVILIAN EMPLOYEE FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS FOR ADDITIONAL 30 DAYS BECAUSE HOUSEHOLD EFFECTS HAD NOT ARRIVED AT NEW PERMANENT STATION. EMPLOYEE WHO INCIDENT TO CHANGE OF STATION FROM GERMANY TO OKLAHOMA OCCUPIED TEMPORARY QUARTERS FOR ADDITIONAL 30 DAYS WHILE AWAITING HOUSEHOLD EFFECTS AT NEW STATION MAY NOT BE PAID SUBSISTENCE EXPENSES BEYOND 30 DAYS NOTWITHSTANDING ADMINISTRATIVE ADVICE THAT SUBSISTENCE EXPENSES COULD BE ALLOWED FOR ADDITIONAL 30 DAYS SINCE ONLY EXCEPTION TO 30-DAY SUBSISTENCE ALLOWANCE LIMITATION INVOLVES TRANSFERS TO OR FROM HAWAII, ALASKA, TERRITORIES, PUERTO RICO OR CANAL ZONE AND INSTANT TRANSFER INVOLVED EUROPEAN TRANSFER.

TO MR. THEODORE J. CREED ON:

YOUR LETTER OF JUNE 9, 1969, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT DATED DECEMBER 30, 1968, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS DURING THE PERIOD NOVEMBER 25 THROUGH DECEMBER 24, 1967, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

THE RECORD SHOWS THAT BY SPECIAL ORDER AB-615, DATED OCTOBER 23, 1967, YOU AND YOUR IMMEDIATE FAMILY WERE AUTHORIZED TO TRAVEL FROM WIESBADEN, GERMANY, TO TINKER AIR FORCE BASE, OKLAHOMA, INCIDENT TO A PERMANENT CHANGE OF STATION. ITEM 9 OF YOUR TRAVEL ORDER AUTHORIZED REIMBURSEMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS IN ACCORDANCE WITH PART III, APPENDIX A, VOLUME II OF THE JOINT TRAVEL REGULATIONS. PART III OF APPENDIX A, AT THAT TIME CONTAINED THE REGULATIONS OF THE BUREAU OF THE BUDGET PUBLISHED IN CIRCULAR NO. A-56, DATED OCTOBER 12, 1966.

DURING THE PERIOD OCTOBER 26 THROUGH NOVEMBER 4, 1967, YOU AND YOUR FAMILY OCCUPIED TEMPORARY QUARTERS AT WIESBADEN, WHILE AWAITING TRANSPORTATION TO THE UNITED STATES. DURING THE PERIOD NOVEMBER 5, 1967, THROUGH JANUARY 4, 1968, YOU OCCUPIED TEMPORARY QUARTERS AT MIDWEST CITY, OKLAHOMA, WHILE AWAITING ARRIVAL OF YOUR HOUSEHOLD GOODS FROM GERMANY.

ON YOUR ORIGINAL TRAVEL VOUCHER YOU CLAIMED REIMBURSEMENT FOR SUBSISTENCE EXPENSES COVERING THE 60-DAY PERIOD FROM OCTOBER 26 THROUGH DECEMBER 24, 1967. IN ACCORDANCE WITH PARAGRAPH C8251-3 OF THE JOINT TRAVEL REGULATIONS, VOLUME 2, YOUR ADMINISTRATIVE OFFICE ALLOWED YOU REIMBURSEMENT ONLY FOR THE 30-DAY PERIOD OCTOBER 26 THROUGH NOVEMBER 24, 1967.

YOU BELIEVE THAT YOU ARE ENTITLED TO PAYMENT OF SUBSISTENCE EXPENSES FOR AN ADDITIONAL 30 DAYS, SINCE PRIOR TO YOUR TRANSFER YOU WERE ADVISED BY CERTAIN ADMINISTRATIVE OFFICIALS THAT YOU WOULD BE ALLOWED SUBSISTENCE EXPENSES FOR A PERIOD OF 60 DAYS. ALSO, YOU POINT OUT THAT YOU COULD NOT MOVE INTO PERMANENT RESIDENCE QUARTERS AT AN EARLIER DATE SINCE YOUR HOUSEHOLD GOODS WERE NOT DELIVERED UNTIL DECEMBER 26, 1967.

THE STATUTORY AUTHORITY FOR REIMBURSEMENT OF AN EMPLOYEE'S SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS IS CONTAINED IN 5 U.S.C. 5724A, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724 (A) OF THIS TITLE:

"/3) SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY FOR A PERIOD OF 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS WHEN THE NEW OFFICIAL STATION IS LOCATED WITHIN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. THE PERIOD OF RESIDENCE IN TEMPORARY QUARTERS MAY BE EXTENDED FOR AN ADDITIONAL 30 DAYS WHEN THE EMPLOYEE MOVES TO OR FROM HAWAII, ALASKA, THE TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. * * *"

ALSO, SEE SECTION 2.5 OF THE IMPLEMENTING REGULATIONS CONTAINED IN BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966.

THE STATUTORY PROVISIONS QUOTED ABOVE ARE CLEAR AND UNAMBIGUOUS. ONLY THOSE EMPLOYEES WHO ARE TRANSFERRED EITHER TO OR FROM HAWAII, ALASKA, THE TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE MAY BE ALLOWED SUBSISTENCE EXPENSES FOR AN ADDITIONAL 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS UNDER THAT AUTHORITY.

THE FACT THAT YOUR HOUSEHOLD GOODS WERE NOT DELIVERED UNTIL DECEMBER 26, 1967, HAS NO BEARING ON YOUR CLAIM SINCE THE STATUTE EXPRESSLY LIMITS REIMBURSEMENT IN YOUR CASE TO A PERIOD OF 30 DAYS. WHILE IT IS UNFORTUNATE THAT YOU WERE FURNISHED ERRONEOUS ADVICE IN THE MATTER, SUCH FACT CANNOT SERVE AS A BASIS FOR ALLOWING YOUR CLAIM. IN SUCH CONNECTION, IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT BOUND BY THE UNAUTHORIZED ACTS OF ITS OFFICERS AND EMPLOYEES. FEDERAL CROP INSURANCE CORP. V MERRIL, 332 U.S. 380; IN RE HOOPER'S ESTATE, 359 F.2D 569.

FOR THE REASONS DISCUSSED ABOVE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.