B-171589, MAR 23, 1971, 50 COMP GEN 644

B-171589, MAR 23, 1971, 50 COMP GEN 644

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HIRED OVERSEAS - RESIDENCE IN UNITED STATES, ETC. THE TRAVEL AND TRANSPORTATION EXPENSES OF A NEWLY APPOINTED EMPLOYEE FROM A FOREIGN COUNTRY MAY BE PAID BY CANAL ZONE AGENCIES IF THE EMPLOYEE AT THE TIME OF APPOINTMENT HAS A PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS. HOWEVER, AS 5 U.S.C. 5722 AUTHORIZES THE PAYMENT OF SUCH EXPENSES ONLY FROM THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT, REIMBURSEMENT MAY NOT EXCEED THAT WHICH WOULD HAVE BEEN ALLOWED THE EMPLOYEE FOR TRAVEL AND TRANSPORTATION FROM HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS. CANAL ZONE - EMPLOYEES - HIRED OVERSEAS - RESIDENCE IN UNITED STATES, ETC. A FORMER EMPLOYEE OF THE CANAL ZONE GOVERNMENT WHOSE PLACE OF ACTUAL RESIDENCE WAS IN CALIFORNIA, BUT WHO AT THE TIME OF HIS APPOINTMENT WAS TEMPORARILY RESIDING IN COSTA RICA, AND WHO HAD TRANSPORTED HIS HOUSEHOLD GOODS TO COSTA RICA IN HIS OWN TRUCK PRIOR TO SIGNING AN EMPLOYMENT AGREEMENT, WHICH HE SIGNED IN COSTA RICA PRIOR TO HIS TRAVEL TO THE CANAL ZONE, MAY BE REIMBURSED TRAVEL AND TRANSPORTATION EXPENSES FROM COSTA RICA TO THE CANAL ZONE IN ACCORDANCE WITH THE PROVISIONS OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, BUT HE MAY NOT BE REIMBURSED THE EXPENSES OF MOVING FROM CALIFORNIA TO COSTA RICA SINCE THESE EXPENSES WERE NOT INCURRED IN ANTICIPATION OF HIS APPOINTMENT IN THE CANAL ZONE. OFFICERS AND EMPLOYEES - OVERSEAS - "ACTUAL RESIDENCE" THE TERM "ACTUAL RESIDENCE" IS NOT DEFINED IN 5 U.S.C. 5722 OR IMPLEMENTING REGULATIONS, WHICH AUTHORIZE TRAVEL AND TRANSPORTATION EXPENSES FOR NEW APPOINTEES TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, AND IS FOR DETERMINATION FROM THE FACTS OF EACH CASE. ALTHOUGH THE TERM AS USED IN SECTION 5722 GENERALLY WOULD BE UNDERSTOOD TO MEAN THE PLACE AT WHICH AN APPOINTEE PHYSICALLY RESIDES AT THE TIME OF HIS APPOINTMENT, THE TERM MAY INCLUDE THE "LEGAL RESIDENCE" OR "DOMICILE" OF AN EMPLOYEE.

TO THE GOVERNOR OF THE CANAL ZONE, MARCH 23, 1971:

THIS IS IN REPLY TO A LETTER OF FEBRUARY 18, 1971, FROM FORMER GOVERNOR LEBER REQUESTING OUR DECISION ON QUESTIONS INVOLVING THE INTERPRETATION OF 5 U.S.C. 5722 AS IT RELATES TO THE TRAVEL AND TRANSPORTATION ALLOWANCES OF NEW APPOINTEES TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES.

GOVERNOR LEBER'S LETTER READS IN PART AS FOLLOWS:

FORMER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED (NOW CODIFIED AT 5 U.S.C. 5722) AUTHORIZES THE PAYMENT BY A GOVERNMENT AGENCY OF THE "TRAVEL EXPENSES OF A NEW APPOINTEE AND TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT TO THE PLACE OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES."

AS IS FURTHER PROVIDED IN THIS SECTION AN AGENCY MAY PAY EXPENSES OF A NEW APPOINTEE, HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS ONLY AFTER THE INDIVIDUAL SELECTED FOR APPOINTMENT AGREES IN WRITING TO REMAIN IN GOVERNMENT SERVICE FOR A SPECIFIED PERIOD.

A SPECIFIC CASE ON WHICH YOUR RULING IS REQUESTED RELATES TO A CLAIM FROM A FORMER EMPLOYEE OF THE CANAL ZONE GOVERNMENT WHOSE PLACE OF ACTUAL RESIDENCE WAS IN CALIFORNIA, BUT WHO AT THE TIME OF HIS APPOINTMENT WAS TEMPORARILY RESIDING IN COSTA RICA. HE IS CLAIMING REIMBURSEMENT OF HIS ESTIMATED ACTUAL EXPENSES AND PER DIEM IN TRANSPORTING HIS HOUSEHOLD GOODS FROM CALIFORNIA TO COSTA RICA IN HIS OWN TRUCK, AND AFTER AN APPARENT INTERVAL OF SEVERAL MONTHS, THE TRAVEL AND TRANSPORTATION OF HIMSELF, HIS FAMILY AND HOUSEHOLD GOODS FROM COSTA RICA TO THE CANAL ZONE. TRANSPORTATION AGREEMENT WAS SIGNED PRIOR TO TRANSPORTING THE GOODS FROM CALIFORNIA TO COSTA RICA. HOWEVER, A TRANSPORTATION AGREEMENT WAS SIGNED BY HIM IN COSTA RICA PRIOR TO HIS TRAVEL FROM THERE TO THE CANAL ZONE. IS REQUESTING REIMBURSEMENT OF THESE EXPENSES AS A RECRUITMENT TRAVEL EXPENSE. THE EMPLOYEE SUBSEQUENTLY COMPLETED THE AGREED PERIOD OF SERVICE AND WAS REPATRIATED TO CALIFORNIA AT GOVERNMENT EXPENSE.

UP TO THE PRESENT TIME WE HAVE RECRUITED OUR NON-LOCAL HIRE EMPLOYEES ONLY FROM THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS. IT IS NOT CLEAR TO THE CANAL AGENCIES WHETHER OR NOT WE WOULD HAVE THE AUTHORITY TO RECRUIT AND PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES, THEIR IMMEDIATE FAMILIES AND HOUSEHOLD GOODS FROM OTHER GEOGRAPHIC LOCATIONS SUCH AS NEIGHBORING COUNTRIES IN LATIN AMERICA OR OTHER FOREIGN AREAS, IN A CASE WHERE THE EMPLOYEE AT THE TIME OF APPOINTMENT HAD "A PLACE OF ACTUAL RESIDENCE" IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS.

OUR DECISION HAS BEEN REQUESTED AS TO WHETHER THE EMPLOYEE IN THE CASE CITED IS PRECLUDED FROM RECEIVING REIMBURSEMENT FOR EXPENSES INCURRED BETWEEN CALIFORNIA AND COSTA RICA SINCE NO TRANSPORTATION AGREEMENT WAS SIGNED PRIOR TO THE DEPARTURE OF THE EMPLOYEE. OUR DECISION IS ALSO REQUESTED AS TO WHETHER UNDER 5 U.S.C. 5722 THE CANAL AGENCIES MAY PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF A NEWLY APPOINTED EMPLOYEE FROM A FOREIGN COUNTRY IF THE EMPLOYEE AT THE TIME OF APPOINTMENT HAS A PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS AND, IF SO, WHETHER THE AMOUNT ALLOWABLE IS LIMITED TO THE COSTS FOR TRAVEL FROM THE PLACE OF ACTUAL RESIDENCE.

THE TERM "ACTUAL RESIDENCE" IS NOT DEFINED IN THE LAW OR IMPLEMENTING REGULATIONS AND IS FOR DETERMINATION FROM THE FACTS OF EACH CASE. SEE 29 COMP. GEN. 526, 527 (1950). THE TERM AS USED IN THE STATUTE GENERALLY WOULD BE UNDERSTOOD TO MEAN THE PLACE AT WHICH THE APPOINTEE PHYSICALLY RESIDES AT THE TIME OF HIS APPOINTMENT. HOWEVER, WE HAVE RECOGNIZED THAT, IN A PROPER CASE, THE TERM MAY INCLUDE THE "LEGAL RESIDENCE" OR "DOMICILE" OF THE EMPLOYEE. 26 COMP. GEN. 488, 492 (1947).

WE HAVE HELD THAT UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 TRAVEL AND TRANSPORTATION EXPENSES OF AN APPOINTEE MAY BE PAID FROM A FOREIGN COUNTRY TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. SEE B-107059, JANUARY 10, 1952. ORDINARILY AN EMPLOYEE RECRUITED FOR ASSIGNMENT OUTSIDE THE CONTINENTAL UNITED STATES IS ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES UPON SEPARATION ONLY TO THE COUNTRY OF ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO SUCH DUTY. SEE B-160029, OCTOBER 4, 1966. HOWEVER, WE HAVE ALSO HELD THAT THE TRAVEL AND TRANSPORTATION EXPENSES OF AN EMPLOYEE RECRUITED AT A PLACE OF TEMPORARY RESIDENCE MAY BE PAID FROM THAT LOCATION TO HIS OVERSEAS DUTY STATION AND, AFTER A TOUR OF DUTY, TO HIS PERMANENT RESIDENCE. SEE B-124492, SEPTEMBER 21, 1955. WHILE THIS DECISION INVOLVED A TEMPORARY RESIDENCE IN THE UNITED STATES AND HOME LEAVE ENTITLEMENT, WE SEE NO REASON WHY IT CANNOT BE APPLIED TO A SITUATION INVOLVING THE APPOINTMENT OF AN INDIVIDUAL AT A TEMPORARY RESIDENCE IN A FOREIGN COUNTRY FOR A SINGLE TOUR OF DUTY OVERSEAS.

WITH RESPECT TO THE CLAIM OF YOUR FORMER EMPLOYEE FOR TRAVEL AND TRANSPORTATION EXPENSES TO THE CANAL ZONE, WE UNDERSTAND THAT NONE OF THE EXPENSES FROM CALIFORNIA TO COSTA RICA WERE INCURRED IN ANTICIPATION OF HIS APPOINTMENT IN THE CANAL ZONE. IN VIEW THEREOF AND SINCE HE ACTUALLY WAS APPOINTED FROM COSTA RICA, THERE APPEARS NO BASIS FOR ALLOWING TRAVEL AND TRANSPORTATION EXPENSES FROM CALIFORNIA TO COSTA RICA. SEE B-127944, JUNE 28, 1956. HOWEVER, SINCE HE HAD AN ACTUAL RESIDENCE IN THE UNITED STATES AT THE TIME OF HIS APPOINTMENT WE SEE NO OBJECTION TO PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES FROM COSTA RICA TO THE CANAL ZONE IN ACCORDANCE WITH THE PROVISIONS OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56.

IN ANSWER TO YOUR GENERAL QUESTIONS THE CANAL AGENCIES MAY PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF A NEWLY APPOINTED EMPLOYEE FROM A FOREIGN COUNTRY, IF THE EMPLOYEE AT THE TIME OF APPOINTMENT HAS A PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS. HOWEVER, AS 5 U.S.C. 5722 AUTHORIZES THE PAYMENT OF SUCH EXPENSES ONLY FROM THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT, REIMBURSEMENT MAY NOT EXCEED THAT WHICH WOULD HAVE BEEN ALLOWED THE EMPLOYEE FOR TRAVEL AND TRANSPORTATION FROM HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS. SEE 26 COMP. GEN. 322 (1946).