B-175111, OCT 10, 1973

B-175111: Oct 10, 1973

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MERNA: REFERENCE IS MADE TO YOUR LETTER DATED JULY 5. ARE ENTITLED TO ADDITIONAL REIMBURSEMENT FOR SUBSISTENCE EXPENSES INCURRED BY YOU WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM GUANTANAMO BAY. YOU AND YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM THE UNITED STATES NAVAL STATION. YOU WERE ALSO AUTHORIZED REIMBURSEMENT OF SUBSISTENCE EXPENSES FOR YOU AND YOUR DEPENDENTS WHILE OCCUPYING TEMPORARY QUARTERS. ALTHOUGH YOU HAVE BEEN REIMBURSED FOR SUBSISTENCE EXPENSES FOR THE FIRST 30 DAYS THAT YOU AND YOUR DEPENDENTS OCCUPIED TEMPORARY QUARTERS. YOUR CLAIM FOR REIMBURSEMENT FOR SUBSISTENCE EXPENSES FOR THE ADDITIONAL 30-DAY PERIOD HAS BEEN ADMINISTRATIVELY DISALLOWED ON THE BASIS THAT THERE WAS NO AUTHORITY TO AUTHORIZE REIMBURSEMENT FOR THE ADDITIONAL 30-DAY PERIOD.

B-175111, OCT 10, 1973

DISALLOWANCE OF CLAIM OF EMPLOYEE OF THE DEFENSE COMMUNICATIONS AGENCY FOR ADDITIONAL REIMBURSEMENT FOR SUBSISTENCE EXPENSES INCURRED WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM GUANTANAMO BAY, CUBA TO ARLINGTON, VA. DURING 1972.

TO MR. JOHN A. MERNA:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 5, 1973, REQUESTING A DECISION AS TO WHETHER YOU, AS AN EMPLOYEE OF THE DEFENSE COMMUNICATIONS AGENCY (DCA), ARE ENTITLED TO ADDITIONAL REIMBURSEMENT FOR SUBSISTENCE EXPENSES INCURRED BY YOU WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM GUANTANAMO BAY, CUBA, TO ARLINGTON, VIRGINIA, DURING 1972.

IN CONNECTION WITH YOUR TRANSFER OF OFFICIAL STATION, YOU AND YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM THE UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO ARLINGTON, VIRGINIA. YOU WERE ALSO AUTHORIZED REIMBURSEMENT OF SUBSISTENCE EXPENSES FOR YOU AND YOUR DEPENDENTS WHILE OCCUPYING TEMPORARY QUARTERS. HOWEVER, YOU INCURRED DIFFICULTY IN OBTAINING A RESIDENCE IN VIRGINIA AND REQUESTED DCA TO AUTHORIZE REIMBURSEMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS FOR AN ADDITIONAL 30 DAYS. BY A MEMORANDUM DATED JULY 6, 1972, DCA APPROVED YOUR REQUEST AND AMENDED YOUR TRAVEL ORDERS TO AUTHORIZE REIMBURSEMENT FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS FOR A TOTAL OF 60 DAYS. ALTHOUGH YOU HAVE BEEN REIMBURSED FOR SUBSISTENCE EXPENSES FOR THE FIRST 30 DAYS THAT YOU AND YOUR DEPENDENTS OCCUPIED TEMPORARY QUARTERS, YOUR CLAIM FOR REIMBURSEMENT FOR SUBSISTENCE EXPENSES FOR THE ADDITIONAL 30-DAY PERIOD HAS BEEN ADMINISTRATIVELY DISALLOWED ON THE BASIS THAT THERE WAS NO AUTHORITY TO AUTHORIZE REIMBURSEMENT FOR THE ADDITIONAL 30-DAY PERIOD.

SECTION 5724A OF TITLE 5, U.S.C. PROVIDES IN 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. ***"

THE STATUTORY PROVISIONS QUOTED ABOVE AND THE IMPLEMENTING REGULATIONS, SUBSECTIONS 8.2A AND B OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A- 56, REVISED SEPTEMBER 1, 1971, ARE CLEAR AND UNAMBIGUOUS. SEE ALSO, SUBSECTION C 8251-2 OF VOLUME 2, JOINT TRAVEL REGULATIONS. 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 THOSE AUTHORITIES. IN ADDITION TO B- 167871, SEPTEMBER 29, 1969, OF WHICH YOU ARE AWARE SEE B-176078, JULY 14, 1972, AND B-169247, APRIL 2, 1970, COPIES ENCLOSED.

THE FACT THAT DCA AMENDED YOUR TRAVEL ORDERS TO AUTHORIZE REIMBURSEMENT OF SUBSISTENCE EXPENSES FOR AN ADDITIONAL 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS PROVIDES NO BASIS FOR PAYMENT OF YOUR CLAIM SINCE IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942); 44 ID. 337 (1964); 46 ID. 348 (1966). SINCE THE STATUTE AND REGULATIONS PROVIDE THAT SUBSISTENCE EXPENSES FOR AN ADDITIONAL 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS MAY BE ALLOWED ONLY IN CERTAIN CIRCUMSTANCES NOT HERE APPLICABLE, THERE WOULD APPEAR TO BE NO LEGAL BASIS TO ALLOW YOUR CLAIM.