B-170213, AUG 17, 1970, 50 COMP GEN 89

B-170213, AUG 17, 1970, 50 COMP GEN 89

OFFICERS AND EMPLOYEES - OVERSEAS - DEPENDENTS - EVACUATION - SPECIAL ALLOWANCE PAYMENTS UNDER THE BROAD AUTHORITY IN 5 U.S.C. 5523(B), THE SPECIAL ALLOWANCES, PRESCRIBED BY THE STANDARDIZED REGULATIONS INCIDENT TO THE EVACUATION OF THE DEPENDENTS AT AN OVERSEAS POST OF DUTY, MAY BE PAID TO AN EMPLOYEE IN BEHALF OF DEPENDENTS WHO ARE NOT AT HIS POST AT THE TIME OF AN EVACUATION BUT WHO ARE DIRECTLY AFFECTED BY THE ORDERS. HOWEVER, AS PAYMENTS OF THE ADDITIONAL ALLOWANCES FOR UNUSUAL EXPENSES MUST BE ATTRIBUTABLE TO A POST EVACUATION ORDER, WHEN DEPENDENTS ARE ABSENT FOR PERSONAL REASONS AT THE TIME AN EVACUATION ORDER ISSUES, WITH NO INTENTION OF RETURNING TO THE POST FOR THE DURATION OF THE EVACUATION, THE EMPLOYEE IS NOT ENTITLED TO THE SPECIAL ALLOWANCE, HAVING INCURRED NO UNUSUAL EXPENSES; BUT IF AN ABSENT DEPENDENT IS PREVENTED FROM RETURNING BY REASON OF THE EVACUATION ORDER ISSUED DURING HIS ABSENCE, THE UNUSUAL EXPENSES INCURRED ARE PAYABLE FROM THE TIME THE INTENDED RETURN IS BLOCKED. OFFICERS AND EMPLOYEES - DEPENDENTS - SEPARATION ALLOWANCES - SPECIAL V MAINTENANCE THE SEPARATE MAINTENANCE ALLOWANCE PAID AT A LOWER RATE THAN THE SPECIAL ALLOWANCE AUTHORIZED WHEN DEPENDENTS ARE EVACUATED FROM THE OVERSEAS POST OF AN EMPLOYEE, INVOLVES SITUATIONS WHERE DEPENDENTS ARE NOT PERMITTED TO RESIDE AT AN EMPLOYEE'S POST UNDER CIRCUMSTANCE KNOWN WELL IN ADVANCE TO ALLOW FOR REASONABLE PLANNING AND, THEREFORE, SERVES A DIFFERENT PURPOSE THAN THE SPECIAL ALLOWANCES AUTHORIZED INCIDENT TO THE EVACUATION OF DEPENDENTS WHO, INTENDING TO RESIDE AT THE EMPLOYEE'S POST ARE PREVENTED FROM SO DOING BY AN EMERGENCY UNDER CIRCUMSTANCES WHICH DO NOT PERMIT THE ORDERLY PLANNING OF AN EMPLOYEE'S HOUSEHOLD. FURTHERMORE, SECTION 262.32 OF THE STANDARDIZED REGULATIONS PROHIBITS THE PAYMENT OF A SEPARATION ALLOWANCE FOR A PERIOD THAT IS LESS THAN 90 DAYS - A LIMITATION THAT DOES NOT APPLY TO THE SPECIAL ALLOWANCE.

TO THE ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT, AUGUST 17, 1970:

THERE HAS BEEN REFERRED TO OUR OFFICE THE MATTER OF THE CLAIM OF THE UNITED STATES AGAINST JACK A. IRISH WHILE AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, DEPARTMENT OF STATE.

THE CLAIM AGAINST MR. IRISH ACCORDING TO THE RECORD NOW BEFORE US ARISES FROM A PAYMENT TO HIM OF $2,046 REPRESENTING A SPECIAL ALLOWANCE FOR THE PERIOD AUGUST 18, 1967, THROUGH DECEMBER 31, 1967. MR. IRISH AT THE TIME WAS AT HIS ASSIGNED POSTS, KINSHASA, IN THE CONGO. HIS WIFE HAD LEFT THE POST ON DECEMBER 14, 1966, TO RETURN TO THE UNITED STATES PENDING THE BIRTH OF HER SECOND CHILD, A DAUGHTER, BORN ON APRIL 24, 1967. THEREAFTER, MRS. IRISH AND THE CHILDREN RETURNED TO BELGIUM AND WERE THERE ON AUGUST 18, 1967, WHEN THE DEPARTMENT OF STATE AUTHORIZED THE EVACUATION OF DEPENDENTS AT POST AND BANNED RETURN TRAVEL TO THOSE NOT AT POST. THE U.S. MISSION AT KINSHASA AUTHORIZED AS PART OF THE EVACUATION ORDERS PAYMENT OF SPECIAL ALLOWANCE TO MR. IRISH IN BEHALF OF HIS DEPENDENTS.

THE PAYMENT WAS LATER DETERMINED BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT TO BE IN ERROR. THE EMBASSY AT KINSHASA IN AUTHORIZING THE PAYMENT INTERPRETED THE DEFINITION OF "EVACUEE" AS CONTAINED IN THE DEPARTMENT OF STATE EMERGENCY AND EVACUATION MANUAL TO INCLUDE MR. IRISH'S DEPENDENTS. THAT MANUAL AT SECTION 324.12 READS:

324.12 DEFINITIONS

A. EVACUATED EMPLOYEE

EVACUATED EMPLOYEE MEANS (1) EMPLOYEES EVACUATED FROM THE POST, AND (2) ALL OTHER EMPLOYEES WHOSE PAY CARDS ARE, OR WERE, IN THE POSSESSION OF THE EVACUATED POST AT THE TIME OF THE EVACUATION. THE LATTER MAY INCLUDE (A) EMPLOYEES ON TEMPORARY DUTY AT OTHER POSTS OR IN THE DEPARTMENT, (B) TRANSFERRED EMPLOYEES, (C) EMPLOYEES ON HOME LEAVE OR ABSENT FROM THE POST ON ANNUAL LEAVE, AND (D) EMPLOYEES IN TRANSIT TO OR FROM THE POST AT THE TIME THE POST IS BEING EVACUATED.

THE ALLOWANCE PAID TO MR. IRISH IS ADMINISTRATIVELY REFERRED TO AS A SPECIAL COST-OF-LIVING ALLOWANCE. THE REFERENCE TO "COST-OF-LIVING" APPARENTLY STEMS FROM THE PROVISION OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) AT SECTION 013 WHICH IN PERTINENT PART PROVIDES:

*** WHEN THE SECRETARY OF STATE DETERMINES THAT UNUSUAL CIRCUMSTANCES EXIST, THE HEAD OF AN AGENCY MAY GRANT SPECIAL QUARTERS, COST-OF-LIVING, AND REPRESENTATION ALLOWANCES IN ADDITION TO OR IN LIEU OF THOSE AUTHORIZED IN THESE REGULATIONS.

CHAPTER 600 OF THE STANDARDIZED REGULATIONS PROVIDES FOR EVACUATION PAYMENTS. SECTION 614 SHOWS AGENCY FOR INTERNATIONAL DEVELOPMENT TO HAVE ADOPTED THE REGULATIONS APPROVED BY THE SECRETARY OF STATE. SECTION 600/105(E) OF SUCH REGULATIONS READS:

"EVACUATED EMPLOYEE" MEANS AN EMPLOYEE WHO IS EVACUATED FROM HIS POST OF ASSIGNMENT OR WHO IS ORDERED TO BE EVACUATED BUT CANNOT BE EVACUATED BECAUSE OF REASONS BEYOND HIS CONTROL.

THE AGENCY FOR INTERNATIONAL DEVELOPMENT STATES THAT THE DEPARTMENT OF STATE HAS INTERPRETED THE ABOVE DEFINITION TO COVER ONLY THOSE DEPENDENTS WHO ARE PHYSICALLY EVACUATED FROM THE POST, AND IN LIEU THEREOF REGARD A SEPARATE MAINTENANCE ALLOWANCE AS PAYABLE FOR THOSE DEPENDENTS WHO WERE NOT PHYSICALLY EVACUATED FROM THE POST BUT ARE AFFECTED BY THE EVACUATION ORDER. IN MR. IRISH'S CASE THE $2,046 PAYMENT WAS SET OFF BY $1,229.44 - THE AMOUNT ALLOWED FOR SEPARATE MAINTENANCE - LEAVING $1,176.56 WHICH MR. IRISH HAS BEEN REQUESTED TO PAY.

WE NOTE THAT THE ABOVE-CITED REFERENCES TO BOTH THE DEPARTMENT OF STATE EMERGENCY AND EVACUATION MANUAL AND THE STANDARDIZED REGULATIONS DEFINE EVACUATED EMPLOYEE. DEPENDENTS AS SUCH ARE NOT SPECIFICALLY INCLUDED; HOWEVER, WE ARE ADVISED THAT THE ADMINISTRATIVE DETERMINATIONS CONCERNING MR. IRISH'S DEPENDENTS ARE BASED ON THE ASSUMPTION THAT DEPENDENTS ARE CONSIDERED AS THOUGH THEY WERE INCLUDED IN THE CITED DEFINITIONS.

SECTIONS 600/130 AND 131(B) OF THE STANDARDIZED REGULATIONS UNDER THE TITLE "SPECIAL ALLOWANCES" READ:

130 PURPOSE OF SPECIAL ALLOWANCES

SPECIAL ALLOWANCES SPECIFIED IN SECTIONS 131 AND 133 ARE PAID TO EVACUATED EMPLOYEES TO OFFSET ANY DIRECT ADDED EXPENSES WHICH ARE INCURRED BY THE EMPLOYEE AS A RESULT OF HIS EVACUATION OR THE EVACUATION OF HIS DEPENDENTS.

131(B) SUBSISTENCE EXPENSE ALLOWANCE

UNLESS OTHERWISE DIRECTED BY THE SECRETARY OF STATE, A SUBSISTENCE EXPENSE ALLOWANCE FOR THE EVACUATED EMPLOYEE OR HIS DEPENDENTS SHALL BE DETERMINED AT APPLICABLE TRAVEL PER DIEM RATES FOR THE SAFEHAVEN POST OR A STATION OTHER THAN THE SAFEHAVEN POST WHICH HAS BEEN APPROVED BY APPROPRIATE AUTHORITY. SUCH SUBSISTENCE EXPENSE ALLOWANCE SHALL BE PAID AS OF THE DATE FOLLOWING ARRIVAL AND MAY CONTINUE UNTIL TERMINATED UNDER THESE REGULATIONS. THE DAILY AMOUNT OF THE SUBSISTENCE EXPENSE ALLOWANCE SHALL BE:

(1) THE MAXIMUM RATE OF TRAVEL PER DIEM FOR THE EMPLOYEE AND EACH DEPENDENT WHO IS 11 YEARS OF AGE OR OVER; AND ONE-HALF SUCH RATE FOR EACH DEPENDENT UNDER 11 YEARS OF AGE. THIS PRESCRIBED MAXIMUM RATE SHALL BE PAID FOR A PERIOD NOT TO EXCEED THE FIRST 30 DAYS OF EVACUATION.

(2) AFTER EXPIRATION OF THE 30-DAY PERIOD AND IF THE EVACUATION HAS NOT BEEN TERMINATED, THE SUBSISTENCE EXPENSE ALLOWANCE SHALL BE COMPUTED AT 60 PERCENT OF THE RATES PRESCRIBED IN SUBPARAGRAPH (1). THIS PRESCRIBED RATE SHALL BE PAID UNTIL A DETERMINATION IS MADE BY COMPETENT AUTHORITY THAT SUBSISTENCE ALLOWANCES ARE NO LONGER AUTHORIZED BUT MAY NOT EXCEED IN ANY CASE 180 DAYS AFTER THE EVACUATION.

(3) THE DAILY RATE OF THE SUBSISTENCE EXPENSE ALLOWANCE ACTUALLY PAID AN EMPLOYEE SHALL BE EITHER THE MAXIMUM RATE DETERMINED IN ACCORDANCE WITH 1 AND 2 ABOVE, OR A LOWER RATE IF, IN THE JUDGMENT OF THE AUTHORIZING OFFICER, SUCH LOWER RATE WOULD BE MORE IN KEEPING WITH THE EMPLOYEE'S NECESSARY LIVING EXPENSES.

IN SUMMARY, THE QUESTION IS WHETHER THE APPLICABLE REGULATIONS - CHAPTER 600 OF THE STANDARDIZED REGULATIONS - PRECLUDE PAYMENT OF THE SPECIAL ALLOWANCE TO OR ON BEHALF OF THOSE DEPENDENTS WHO WERE NOT PHYSICALLY EVACUATED FROM THE POST, BUT WERE ABSENT FROM THE POST FOR SPECIFIED REASONS AND WERE PRECLUDED FROM RETURNING TO POST BY THE EVACUATION ORDER.

THE AGENCY FOR INTERNATIONAL DEVELOPMENT URGES THAT THE DEPARTMENTAL INTERPRETATION IS UNDULY RESTRICTIVE, AND REFERS TO 5 U.S.C. 5523(B), THE STATUTORY AUTHORITY FOR EVACUATION PAYMENTS, WHICH READS, IN PERTIENT PART:

*** AN EMPLOYEE IN AN EXECUTIVE AGENCY MAY BE GRANTED SUCH ADDITIONAL ALLOWANCE PAYMENTS AS THE PRESIDENT DETERMINES NECESSARY TO OFFSET THE DIRECT ADDED EXPENSES INCIDENT TO THE EVACUATION.

OUR VIEW IS THAT THE STATUTORY AUTHORITY IS SUFFICIENTLY BROAD TO PERMIT SPECIAL PAYMENTS TO THOSE EMPLOYEES IN BEHALF OF THEIR DEPENDENTS WHO ARE NOT AT THE POST AT THE TIME OF EVACUATION BUT WHO ARE DIRECTLY AFFECTED BY IT. ADDITIONALLY, WE DO NOT FIND ANY PROVISION IN THE STANDARDIZED REGULATIONS WHICH NECESSARILY LIMITS PAYMENT OF THE SPECIAL ALLOWANCES FOR THOSE PERSONS PHYSICALLY EVACUATED FROM A POST.

HOWEVER, WE BELIEVE THE REGULATIONS IMPLICITLY REQUIRE WITH RESPECT TO PAYMENT OF THE SPECIAL ALLOWANCES FOR UNUSUAL EXPENSES INCURRED AS A RESULT OF POST EVACUATIONS THAT SUCH UNUSUAL EXPENSES BE DIRECTLY ATTRIBUTABLE TO A POST EVACUATION ORDER. WHERE DEPENDENTS OF AN EMPLOYEE ARE ABSENT FOR PERSONAL REASONS FROM A POST AT THE TIME ORDERS ARE ISSUED FOR ITS EVACUATION AND THEY HAVE NO INTENTION OF RETURNING TO THE POST FOR THE DURATION OF THE EVACUATION, IT MAY NOT REASONABLY BE SAID THAT THE EVACUATION HAS OCCASIONED ANY UNUSUAL EXPENSE. ON THE OTHER HAND, WHERE AN ABSENT DEPENDENT FULLY INTENDS TO RETURN TO A POST BUT IS PRECLUDED FROM SO DOING PRIMARILY BY REASON OF AN EVACUATION ORDER ISSUED DURING HIS ABSENCE, IT WOULD SEEM TO FOLLOW THAT UNUSUAL EXPENSES INCURRED FROM THE TIME THE INTENDED RETURN IS BLOCKED ARE PRIMARILY THE RESULT OF THE ORDER.

IT MAY BE ARGUED THAT SEPARATE MAINTENANCE ALLOWANCE WHICH THE DEPARTMENT MAY AUTHORIZE SERVES THE SAME FUNCTION AS THE SPECIAL ALLOWANCE ALTHOUGH AT A LOWER RATE. PAYMENT OF A SEPARATE MAINTENANCE ALLOWANCE WOULD APPEAR TO INVOLVE SITUATIONS WHERE THE DEPENDENTS OF AN EMPLOYEE ARE NOT PERMITTED TO RESIDE AT THE EMPLOYEE'S POST BUT UNDER CIRCUMSTANCES WHERE SUCH FACT IS KNOWN WELL ENOUGH IN ADVANCE TO ALLOW FOR REASONABLE PLANNING. THE SPECIAL ALLOWANCE FOR EVACUATION SITUATIONS, HOWEVER, WOULD SEEM TO BE APPLICABLE WHERE THE EMPLOYEE'S FAMILY FULLY INTENDS TO RESIDE AT HIS POST BUT IS PRECLUDED THEREFROM BY AN EMERGENCY UNDER CIRCUMSTANCES WHICH DO NOT PERMIT ORDERLY PLANNING OF THE EMPLOYEE'S HOUSEHOLD.

MOREOVER, IT HAS BEEN NOTED THAT SECTION 262.32 OF THE STANDARDIZED REGULATIONS PROHIBITS A SEPARATE MAINTENANCE ALLOWANCE WHERE THE PERIOD OF SEPARATION IS LESS THAN 90 CONSECUTIVE CALENDAR DAYS UNDER CONDITIONS OTHERWISE WARRANTING THE ALLOWANCE. THE SPECIAL ALLOWANCE IS NOT SO LIMITED. IF ANY ALLOWANCE IS TO BE PAID ON ACCOUNT OF DEPENDENTS IN CIRCUMSTANCES SIMILAR TO THOSE OF MR. IRISH BUT DURING PERIODS OF SEPARATION OF LESS THAN 90 DAYS, SUCH PAYMENTS WOULD APPARENTLY HAVE TO BE THE SPECIAL ALLOWANCE.

IN THE INSTANT CASE, THE RECORD DOES NOT SHOW WHY MRS. IRISH FAILED TO RETURN TO THE CONGO. WE UNDERSTAND THAT THERE IS SIGNIFICANT INDICATION THAT SHE CHOSE TO REMAIN IN BELGIUM SOLELY FOR PERSONAL REASONS UNRELATED TO THE POST EVACUATION ORDER INVOLVED. HOWEVER, IN LINE WITH THE FOREGOING, WE WOULD NOT OBJECT TO CANCELLATION OF THE GOVERNMENT'S CLAIM AGAINST MR. IRISH FOR $1,176.56 OR AN APPROPRIATE PORTION THEREOF, IF A REVIEW OF THE CIRCUMSTANCES IN QUESTION WERE TO RESULT IN AN ADMINISTRATIVE DETERMINATION THAT, FROM A PARTICULAR POINT IN TIME, MRS. IRISH'S FAILURE TO RETURN TO HER HUSBAND'S POST WAS PRIMARILY TIED TO THE EVACUATION ORDER AND THAT SHE WAS REQUIRED TO INCUR UNUSUAL EXPENSES.

A COPY OF THIS DECISION IS BEING FURNISHED THE SECRETARY OF STATE.