B-173572, AUG 23, 1971

B-173572: Aug 23, 1971

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AS THE COMMUTED RATE SYSTEM WAS PROPERLY UTILIZED. PAYMENT OF ADDITIONAL TRANSPORTATION EXPENSES IS NOT AUTHORIZED. CLAIMANT WAS NOT A GS-12 AT REPORTING (SEE BELOW). ENTITLEMENT WAS A GS-11'S RATE. CLAIMS FOR RELOCATION EXPENSES ARE DENIED. THIS LETTER MUST BE DISTINGUISHED FROM A FORMAL APPOINTMENT WHICH IS A PROCEDURAL REQUISITE FOR ENTITLEMENT TO PAY AT A GIVEN LEVEL. CLAIMANT'S PROMOTION WAS NOT EFFECTIVE UNTIL TWO MONTHS AFTER REPORTING. PAYMENT OF CLAIMED DIFFERENTIAL FOR THOSE TWO MONTHS IS DENIED EVEN THOUGH AN AGENT OF THE GOVERNMENT PROMISED TO OBTAIN A WAIVER OF THE WHITTEN REQUIREMENT. IT IS SETTLED THAT THE GOVERNMENT IS NOT BOUND BY PROMISES OF ITS AGENT WHEN SUCH PROMISES ARE NOT PERMITTED BY LAW.

B-173572, AUG 23, 1971

CIVILIAN PERSONNEL - RELOCATION EXPENSES AND PAY DIFFERENTIAL - ENTITLEMENT DECISION DENYING CLAIMS OF MR. FREDRIC J. ZISK, EMPLOYEE OF IRS, FOR ADDITIONAL RELOCATION EXPENSES AND PAY DIFFERENTIAL, ARISING OUT OF TRANSFER OF OFFICIAL STATIONS. AS THE COMMUTED RATE SYSTEM WAS PROPERLY UTILIZED, PAYMENT OF ADDITIONAL TRANSPORTATION EXPENSES IS NOT AUTHORIZED. ALTHOUGH OMB CIR. NO. A-56 AUTHORIZES PAYMENT OF MISCELLANEOUS EXPENSES ABOVE $200 SPECIFIED IN SECTION 3.3A, THE AMOUNT MAY NOT EXCEED TWO WEEKS PAY AT EMPLOYEE'S RATE AT REPORTING. CLAIMANT WAS NOT A GS-12 AT REPORTING (SEE BELOW); THEREFORE, ENTITLEMENT WAS A GS-11'S RATE. CLAIMS FOR RELOCATION EXPENSES ARE DENIED. ALTHOUGH THE PERSONNEL DIVISION OF THE INTERNAL REVENUE SERVICE NOTIFIED CLAIMANT THAT HIS PROMOTION TO GS-12 HAD BEEN CONFIRMED, THIS LETTER MUST BE DISTINGUISHED FROM A FORMAL APPOINTMENT WHICH IS A PROCEDURAL REQUISITE FOR ENTITLEMENT TO PAY AT A GIVEN LEVEL. BECAUSE THE WHITTEN AMENDMENT RESTRICTION UPON PROMOTION HAD NEITHER BEEN MET NOR WAIVED, CLAIMANT'S PROMOTION WAS NOT EFFECTIVE UNTIL TWO MONTHS AFTER REPORTING, WHEN HE HAD ACCUMULATED 12 MONTHS TIME IN GRADE. PAYMENT OF CLAIMED DIFFERENTIAL FOR THOSE TWO MONTHS IS DENIED EVEN THOUGH AN AGENT OF THE GOVERNMENT PROMISED TO OBTAIN A WAIVER OF THE WHITTEN REQUIREMENT. IT IS SETTLED THAT THE GOVERNMENT IS NOT BOUND BY PROMISES OF ITS AGENT WHEN SUCH PROMISES ARE NOT PERMITTED BY LAW.

TO MR. FREDRIC J. ZISK:

THIS WILL REFER TO YOUR LETTER OF JUNE 23, 1971, REQUESTING OUR REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL RELOCATION EXPENSES AND PAY DIFFERENTIALS ARISING OUT OF YOUR TRANSFER OF OFFICIAL STATION FROM BROOKLYN, NEW YORK, TO WASHINGTON, D. C., AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE.

THE RECORD INDICATES THAT YOUR CLAIM FOR ADDITIONAL RELOCATION EXPENSES CONSISTS OF ACTUAL TRANSPORTATION COSTS IN EXCESS OF THE REIMBURSEMENT ALLOWED UNDER THE COMMUTED RATE SYSTEM AND ADDITIONAL MISCELLANEOUS EXPENSE WHICH YOU HAVE SUBSTANTIATED WITH INVOICES AND RECEIPTS. ON THE BASIS OF TRAVEL VOUCHER #2576 THE DISPUTED AMOUNTS ARE DESCRIBED AS FOLLOWS:

ACTUAL EXPENSES FOR TRANSPORTATION

OF HHG AND P/E $998.87

ALLOWANCE PAID UNDER COMMUTED

RATE SYSTEM 722.03

DIFFERENCE CLAIMED $276.84

CLAIMED MISCELLANEOUS EXPENSES

(BASED ON MAXIMUM ALLOWANCE OF (538.20)

2 WEEKS SALARY AT GS-12,

STEP 1, $515) 515.00

MAXIMUM ALLOWANCE PAID PER

REGULATION (2 WEEKS SALARY

AT GS-11, STEP 1) 432.00

DIFFERENCE CLAIMED 83.00

TOTAL CLAIM $359.84

USE OF THE COMMUTED RATE SYSTEM FOR TRANSPORTATION OF HOUSEHOLD EFFECTS IS AUTHORIZED BY 5 U.S.C. 5724(C) WHICH GENERALLY PROVIDES THAT A TRANSFERRED EMPLOYEE SHALL BE REIMBURSED ON A COMMUTED RATE BASIS, AT PROPERLY FIXED RATES AND UNDER PRESIDENTIAL REGULATIONS, INSTEAD OF BEING PAID FOR THE ACTUAL EXPENSES OF TRANSPORTING, PACKING, CRATING, TEMPORARILY STORING, DRAYING, AND UNPACKING HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS. OUR DECISIONS APPLYING THE IMPLEMENTING REGULATIONS CONTAINED IN SECTION 6 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A- 56, REVISED JUNE 26, 1969, HAVE CONSISTENTLY HELD THAT WHEN THE COMMUTED RATE SYSTEM IS PROPERLY UTILIZED THERE IS NO BASIS FOR ALLOWING REIMBURSEMENT OF ANY ADDITIONAL TRANSPORTATION OR STORAGE EXPENSES IN EXCESS OF THE AMOUNT TO WHICH THE EMPLOYEE IS ENTITLED ON THE COMMUTED RATE BASIS. SEE B-171078, JANUARY 13, 1971, AND B-173142, JULY 26, 1971, COPIES ENCLOSED. SINCE THERE IS NO INDICATION THAT THE RATE SCHEDULE USED WAS INAPPLICABLE OR THAT COMPUTATIONS BASED THEREON WERE INCORRECT, WE MUST CONCLUDE THAT YOUR CLAIM OF $276.84 FOR ADDITIONAL TRANSPORTATION EXPENSES WAS PROPERLY DISALLOWED.

YOUR CLAIM FOR ADDITIONAL MISCELLANEOUS EXPENSES IS BASED UPON SECTION 3.3B OF CIRCULAR NO. A-56 WHICH PROVIDES IN SUBSTANCE THAT SUCH ALLOWANCE MAY EXCEED THE $200 SPECIFIED IN 3.3A, PROVIDED THAT THE AGGREGATE AMOUNT DOES NOT EXCEED 2 WEEKS OF THE EMPLOYEE'S PAY RATE AT THE TIME HE REPORTED FOR DUTY. IN ADDITION TO THE FACT THAT YOU WERE NOT ENTITLED TO COMPENSATION AT THE RATE OF GS-12 AT THE TIME YOU REPORTED FOR DUTY AS HEREINAFTER INDICATED, WE NOTE THAT YOU WERE IMPROPERLY ALLOWED THE AMOUNT OF $150 FOR "WIRING FOR AIR CONDITIONERS." SUCH EXPENSES HAVE BEEN DISALLOWED BY OUR OFFICE UNDER CIRCULAR NO. A-56, SECTION 3.1C(13), AS:

"COSTS INCURRED IN CONNECTION WITH STRUCTURAL ALTERATIONS; REMODELING OR MODERNIZING OF LIVING QUARTERS *** TO ACCOMMODATE *** APPLIANCES OR EQUIPMENT *** "

IN THIS REGARD SEE ENCLOSED COPIES OF OUR DECISIONS B-161562, NOVEMBER 2, 1967; B-164111, JUNE 10, 1968; AND B-168582, JANUARY 19, 1970. CONSEQUENTLY, YOUR CLAIM FOR MISCELLANEOUS EXPENSES SHOULD HAVE BEEN ALLOWED FOR $388.20 ($538.20 MINUS $150) INSTEAD OF $432, AND THERE IS A BALANCE DUE THE GOVERNMENT OF $43.80 ($432 MINUS $388.20).

YOUR LETTER OF JUNE 23, 1971, AND AN INFORMAL COMMUNICATION WITH OUR OFFICE SUGGEST THAT YOU ALSO CLAIM PAY DIFFERENTIALS BETWEEN GS-11 AND GS- 12 FOR A PERIOD OF 2 MONTHS DURING WHICH YOU WERE EMPLOYED AS A GS 11 AT YOUR NEW DUTY STATION. THE RECORD INDICATES THAT YOU WERE INFORMED BY LETTER OF JULY 2, 1969, FROM THE CHIEF OF THE RECRUITMENT SECTION, PERSONNEL DIVISION, INTERNAL REVENUE SERVICE, WASHINGTON, D.C., THAT YOUR SELECTION FOR A GS-12 POSITION WITH THE INTERNAL REVENUE SERVICE WAS CONFIRMED. THIS LETTER SHOULD BE DISTINGUISHED FROM A FORMAL APPOINTMENT ACTION WHICH IS THE PROCEDURAL REQUISITE FOR ENTITLEMENT TO COMPENSATION AT A PARTICULAR GRADE LEVEL. SUCH AN APPOINTMENT MUST BE MADE IN COMPLIANCE WITH ALL APPLICABLE CIVIL SERVICE RULES AND REGULATIONS, INCLUDING THE WHITTEN AMENDMENT. WE UNDERSTAND YOU WERE NOT APPOINTED TO GS-12 AT THE TIME OF YOUR TRANSFER BECAUSE OF THE WHITTEN AMENDMENT REQUIREMENT OF 1 YEAR OF SERVICE IN THE PREVIOUS GRADE. WHILE YOU MAY HAVE BEEN INFORMED THAT A WAIVER OF SUCH REQUIREMENT WOULD BE OBTAINED FROM THE CIVIL SERVICE COMMISSION, WE FURTHER UNDERSTAND THAT A WAIVER WAS NOT OBTAINED AND THAT YOU DID NOT ACTUALLY RECEIVE YOUR PROMOTION TO GRADE GS-12 UNTIL APPROXIMATELY 2 MONTHS AFTER REPORTING FOR DUTY IN WASHINGTON. WITHOUT A WAIVER OF THE WHITTEN AMENDMENT RESTRICTION, YOUR APPOINTMENT TO GRADE GS-12 PRIOR TO COMPLETION OF THE 1-YEAR SERVICE IN THE LOWER GRADE WOULD NOT HAVE BEEN LEGALLY PROPER. IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NEITHER BOUND NOR ESTOPPED BY ACTS OF ITS OFFICERS OR AGENTS IN ENTERING INTO AN AGREEMENT TO DO OR CAUSE TO BE DONE THAT WHICH THE LAW DOES NOT SANCTION OR PERMIT. FEDERAL CROP INSURANCE CORP. V MERRIL, 332 U.S. 380 (1947); IN RE HOOPER'S ESTATE, 359 F. 2D 569 (1966). ACCORDINGLY, THIS ASPECT OF YOUR CLAIM WOULD ALSO BE FOR DISALLOWANCE.

ON THE BASIS OF THE FOREGOING DISCUSSION, WE CONCLUDE THAT THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR CLAIM MUST BE AND IS SUSTAINED.