B-168630, JAN. 23, 1970

B-168630: Jan 23, 1970

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EMPLOYEE WHO WAS APPOINTED TO A NONSHORTAGE CATEGORY POSITION AND MISINFORMED AND PAID TRAVEL AND TRANSPORTATION EXPENSES IS INDEBTED FOR SUCH ERRONEOUS PAYMENT. SINCE PAYMENT WAS NOT ERRONEOUS PAYMENT OF "PAY" WAIVER AUTHORITY UNDER PUBLIC LAW 90-616 MAY NOT BE INVOKED. PRIOR TO HIS APPOINTMENT HE WAS ADVISED BY THE FOREST SERVICE THAT HE WAS ENTITLED TO REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES PROVIDED FOR CIVILIAN EMPLOYEES WHO ARE APPOINTED TO A MANPOWER SHORTAGE CATEGORY POSITION AS AUTHORIZED IN 5 U.S.C. 5723 AND AS IMPLEMENTED BY BUREAU OF THE BUDGET CIRCULAR NO. MARCH BANKS WAS APPOINTED TO A POSITION THAT WAS NOT DESIGNATED AS ONE IN A MANPOWER SHORTAGE CATEGORY. HE WAS NOT LEGALLY ENTITLED TO REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES TO HIS FIRST DUTY STATION.

B-168630, JAN. 23, 1970

CIVIL PAY--ERRONEOUS TRAVEL AND TRANSPORTATION EXPENSES DECISION TO CERTIFYING OFFICER OF FOREST SERVICE CONCERNING ERRONEOUS PAYMENT OF TRANSPORTATION AND TRAVEL EXPENSES. EMPLOYEE WHO WAS APPOINTED TO A NONSHORTAGE CATEGORY POSITION AND MISINFORMED AND PAID TRAVEL AND TRANSPORTATION EXPENSES IS INDEBTED FOR SUCH ERRONEOUS PAYMENT. NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS GRANTED BY STATUTE AND REGULATION OR INCLUDE PERSONS EXCLUDED FROM BENEFIT ENTITLEMENT. SINCE PAYMENT WAS NOT ERRONEOUS PAYMENT OF "PAY" WAIVER AUTHORITY UNDER PUBLIC LAW 90-616 MAY NOT BE INVOKED. ADDITIONALLY THE OVERPAYMENT RESULTING FROM UNAUTHORIZED ACT DOES NOT PERMIT RECOMMENDATION TO CONGRESS UNDER MERITORIOUS CLAIMS ACT OF 1928.

TO MR. WILLIAM A. CAMPBELL:

THIS REFERS TO YOUR LETTER OF DECEMBER 10, 1969, REFERENCE 6540, WITH ENCLOSURES, CONCERNING THE CLAIM OF THE UNITED STATES AGAINST MR. MAURICE MARCH BANKS, AN EMPLOYEE OF THE FOREST SERVICE, IN THE AMOUNT OF $667.20. THE DEBT RESULTED FROM THE ERRONEOUS AUTHORIZATION OF TRANSPORTATION AND TRAVEL EXPENSES INCURRED INCIDENT TO HIS APPOINTMENT TO THE FOREST SERVICE AT HEBER, ARIZONA, EFFECTIVE JUNE 18, 1967.

YOU REQUEST THAT OUR OFFICE WAIVE COLLECTION ACTION AGAINST THE INDEBTEDNESS OF MR. MARCH BANKS. PRIOR TO HIS APPOINTMENT HE WAS ADVISED BY THE FOREST SERVICE THAT HE WAS ENTITLED TO REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES PROVIDED FOR CIVILIAN EMPLOYEES WHO ARE APPOINTED TO A MANPOWER SHORTAGE CATEGORY POSITION AS AUTHORIZED IN 5 U.S.C. 5723 AND AS IMPLEMENTED BY BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966. SINCE MR. MARCH BANKS WAS APPOINTED TO A POSITION THAT WAS NOT DESIGNATED AS ONE IN A MANPOWER SHORTAGE CATEGORY, HE WAS NOT LEGALLY ENTITLED TO REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES TO HIS FIRST DUTY STATION. WHILE IT IS REGRETTED THAT MR. MARCH BANKS WAS MISINFORMED BY ADMINISTRATIVE OFFICIALS CONCERNING HIS ENTITLEMENT TO REIMBURSEMENT FOR THE ABOVE DESCRIBED EXPENSES, NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS GRANTED BY STATUTE AND REGULATION OR INCLUDE PERSONS EXCLUDED FROM SUCH STATUTORY OR REGULATORY BENEFITS BY MISINFORMING SUCH PERSONS CONCERNING THEIR ENTITLEMENT.

THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 31 U.S.C. 951-953 AUTHORIZED THE HEAD OF AN AGENCY PURSUANT TO REGULATIONS PRESCRIBED BY HIM AND IN CONFORMITY WITH STANDARDS PROMULGATED JOINTLY BY THE ATTORNEY GENERAL AND THE COMPTROLLER GENERAL TO (1) COMPROMISE CERTAIN CLAIMS OF THE UNITED STATES FOR MONEY OR PROPERTY AND (2) TERMINATE OR SUSPEND COLLECTION ACTION ON SUCH CLAIMS WHERE IT APPEARS THAT NO PERSON LIABLE ON THE CLAIM HAS THE PRESENT OR PROSPECTIVE FINANCIAL ABILITY TO PAY OR WHEN THE COST OF COLLECTION IS LIKELY TO EXCEED THE AMOUNT OF RECOVERY. THE COMPTROLLER GENERAL OR HIS DESIGNEE IN CASES REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR FURTHER COLLECTION ACTION HAS THE FOREGOING AUTHORITY. 31 U.S.C. 952 (B). THE STANDARDS REFERRED TO ABOVE WERE PUBLISHED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS. THERE APPEARS, HOWEVER, TO BE NO VALID BASIS ON THE FACTS OF RECORD THAT WOULD PERMIT A COMPROMISE OF THE DEBT OF $667.20 IN THE CASE OF MR. MARCH BANKS OR THE TERMINATION OF COLLECTION ACTION THEREON UNDER THE CLAIMS COLLECTION ACT OF 1966 OR THE STANDARDS ISSUED THEREUNDER.

ADDITIONALLY, SINCE THE CLAIM OF THE UNITED STATES AGAINST MR. MARCH BANKS WAS NOT AN ERRONEOUS PAYMENT OF "PAY" AS EXPLAINED TO YOUR OFFICE BY OUR CLAIMS DIVISION LETTER OF APRIL 11, 1969, DW-Z2377108-JPS 1, IT MAY NOT BE WAIVED UNDER THE WAIVER AUTHORITY IN PUBLIC LAW 90 616, APPROVED OCTOBER 21, 1968.

THUS, IT APPEARS THERE IS NO LEGAL BASIS OF RELIEVING MR. MARCH BANKS OF THE LIABILITY FOR REPAYMENT OF THE $667.20.

YOU REQUEST IF RELIEF CANNOT BE GRANTED UNDER EXISTING AUTHORITY THAT WE SUBMIT THE MATTER TO THE CONGRESS FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, WHICH READS AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

THE EFFECT OF SUCH A RECOMMENDATION, IF APPROVED, IS THAT MR. MARCH BANKS WOULD BE GRANTED PREFERENTIAL TREATMENT BY THE PAYMENT BY THE GOVERNMENT OF HIS TRAVEL AND TRANSPORTATION EXPENSES IN REPORTING AS A NEW APPOINTEE TO HIS FIRST DUTY STATION. IT IS SIGNIFICANT TO NOTE THAT THE EMPLOYEE AND THE OFFICIAL WHO ISSUED THE TRAVEL ORDERS WERE CHARGEABLE WITH CONSTRUCTIVE NOTICE OF THE STATUTORY AND REGULATORY PROHIBITION AGAINST THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF NEW APPOINTEES REPORTING TO THEIR FIRST DUTY STATION. THE MERE FACT THAT AN OFFICIAL OF THE GOVERNMENT EXCEEDS HIS AUTHORITY IN GRANTING A BENEFIT IN EXCESS OF THAT AUTHORIZED BY LAW DOES NOT AND SHOULD NOT CONSTITUTE A BASIS FOR OUR OFFICE REQUESTING EQUITABLE RELIEF UNDER THE QUOTED STATUTE. NUMEROUS OVERPAYMENTS RESULT FROM ERRORS OR UNAUTHORIZED ACTS ON THE PART OF GOVERNMENT OFFICIALS OR EMPLOYEES. IF OUR OFFICE WERE TO RECOMMEND AND THE CONGRESS TO ENACT RELIEF LEGISLATION IN ALL SUCH CASES, THE EFFECT WOULD BE TO SERIOUSLY WEAKEN THE VARIOUS STATUTORY AND REGULATORY RESTRICTIONS IMPOSED TO INSURE THE EQUAL AND UNIFORM ADMINISTRATION OF EMPLOYEE BENEFITS.

ACCORDINGLY, WE DO NOT CONSIDER THAT MR. MARCH BANKS' CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, AND, THEREFORE, WE MUST DECLINE TO MAKE ANY RECOMMENDATION TO THE CONGRESS UNDER THE AUTHORITY OF SUCH STATUTE.