B-177277(1), MAY 3, 1973

B-177277(1): May 3, 1973

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GALT: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. WHICH INVOLVE THE QUESTION AS TO WHETHER THE EMPLOYEES ARE ENTITLED TO VARIOUS RELOCATION ALLOWANCES UNDER OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. THE FOLLOWING EMPLOYEES WERE AUTHORIZED AND PAID SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS AND ALSO WERE ALLOWED MISCELLANEOUS EXPENSES ALLOWANCES: MELVIN D. ROGERS WERE ALSO REIMBURSED FOR REAL ESTATE EXPENSES INCIDENT TO THE PURCHASE OF NEW RESIDENCES AS AUTHORIZED BY THEIR TRAVEL ORDERS. FAA SUBSEQUENTLY DETERMINED THAT THERE WAS NO AUTHORITY TO ALLOW THE EMPLOYEES TO BE REIMBURSED RELOCATION ALLOWANCES AND BENEFITS UNDER THE PROVISIONS OF CIRCULAR NO. WHO WAS TRANSFERRED FROM TOKYO TO AURORA.

B-177277(1), MAY 3, 1973

CLAIMS OF THE UNITED STATES AGAINST MR. LEONARD H. PITHON AND SIX OTHER EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, FOR CERTAIN PAYMENTS MADE INCIDENT TO THEIR PERMANENT CHANGES OF STATION IN 1969 TO 1971 FROM TOKYO, JAPAN TO VARIOUS POINTS WITHIN THE CONTINENTAL UNITED STATES.

TO JAY M. GALT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1972, WITH ENCLOSURES, CONCERNING THE CLAIMS OF THE UNITED STATES AGAINST MR. LEONARD H. PITHAN AND SIX OTHER EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION, FOR CERTAIN PAYMENTS MADE INCIDENT TO THEIR PERMANENT CHANGES OF STATION IN 1969 TO 1971 FROM TOKYO, JAPAN, TO VARIOUS POINTS INSIDE THE CONTINENTAL UNITED STATES. THE CLAIMS, WHICH INVOLVE THE QUESTION AS TO WHETHER THE EMPLOYEES ARE ENTITLED TO VARIOUS RELOCATION ALLOWANCES UNDER OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A -56, AROSE UNDER THE CIRCUMSTANCES STATED BELOW.

THE FOLLOWING EMPLOYEES WERE AUTHORIZED AND PAID SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS AND ALSO WERE ALLOWED MISCELLANEOUS EXPENSES ALLOWANCES: MELVIN D. MCCLENDON, MALCOLM L. MCMILLAN, FRED A. NIPPER, LEONARD H. PITHAN, KENNETH L. ROGERS AND LESLIE C. TORGUSON. MR. PITHAN AND MR. ROGERS WERE ALSO REIMBURSED FOR REAL ESTATE EXPENSES INCIDENT TO THE PURCHASE OF NEW RESIDENCES AS AUTHORIZED BY THEIR TRAVEL ORDERS. FAA SUBSEQUENTLY DETERMINED THAT THERE WAS NO AUTHORITY TO ALLOW THE EMPLOYEES TO BE REIMBURSED RELOCATION ALLOWANCES AND BENEFITS UNDER THE PROVISIONS OF CIRCULAR NO. A-56 SINCE ALL FAA EMPLOYEES IN FOREIGN COUNTRIES CAN BE PAID ONLY TRAVEL EXPENSES AND RELOCATION ALLOWANCES AUTHORIZED BY THE FOREIGN AFFAIRS MANUAL ISSUED BY THE DEPARTMENT OF STATE. ACCORDINGLY, ADMINISTRATIVE ACTION TO OBTAIN COLLECTION OF THE AMOUNTS PAID UNDER THE PROVISIONS OF CIRCULAR NO. A-56 HAS BEEN INSTITUTED.

MR. JOSE P. CARPIO, WHO WAS TRANSFERRED FROM TOKYO TO AURORA, ILLINOIS, WAS NOT AUTHORIZED ALLOWANCES OR BENEFITS UNDER CIRCULAR NO. A-56. HOWEVER, HE CLAIMED SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS AND A MISCELLANEOUS EXPENSES ALLOWANCE, ON THE BASIS THAT HE HAD BEEN INFORMED, BEFORE HE DEPARTED HIS OLD DUTY STATION, THAT HE WOULD BE ENTITLED TO SUCH ALLOWANCES. THE ITEMS CLAIMED WERE DISALLOWED SINCE THEY WERE NOT AUTHORIZED UNDER THE TRAVEL ORDER, PARAGRAPH 4, FAA TRAVEL HANDBOOK 1500.13, OR THE FOREIGN AFFAIRS MANUAL.

YOU BELIEVE THE EMPLOYEES ARE ENTITLED TO ALLOWANCES UNDER CIRCULAR NO. A -56 SINCE FAA REGULATIONS IN EFFECT AT THE TIME OF THEIR TRANSFERS DID NOT SPECIFICALLY EXCLUDE EMPLOYEES TRANSFERRED TO THE UNITED STATES FROM FOREIGN AREAS BY ORDERS ISSUED BY INSTALLATIONS IN THE UNITED STATES. YOU ALSO REQUEST, IF OUR DECISION AS TO THEIR ENTITLEMENT TO THE ALLOWANCES IN QUESTION IS ADVERSE, THAT WE CONSIDER THEIR CASES FOR WAIVER OF COLLECTION UNDER THE PROVISIONS OF PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, OR REFER THE CASES TO CONGRESS AS MERITORIOUS CLAIMS.

IN YOUR LETTER ON BEHALF OF THE CLAIMANTS YOU STATE THAT OUR DECISION B- 163639, MARCH 27, 1968, HOLDING THAT FAA EMPLOYEES STATIONED IN FOREIGN COUNTRIES ARE NOT ENTITLED TO THE ALLOWANCES IN QUESTION, IS NOT APPLICABLE SINCE THE EMPLOYEES IN THE INSTANT CASES TRAVELED UNDER ORDERS ISSUED BY INSTALLATIONS IN THE UNITED STATES AND THE PROVISIONS OF FAA TRAVEL HANDBOOK 1500.13 APPLY. SECTION 4 OF THE HANDBOOK READS IN PERTINENT PART AS FOLLOWS:

4. APPLICABILITY. THE PROVISIONS OF THIS HANDBOOK APPLY TO ALL FAA EMPLOYEES, INCLUDING EXPERTS AND CONSULTANTS, STATIONED IN THE 50 STATES, THE DISTRICT OF COLUMBIA, PUERTO RICO, THE CANAL ZONE AND IN TERRITORIES AND POSSESSIONS OF THE UNITED STATES. THEY DO NOT APPLY TO:

A. EMPLOYEES TRANSFERRED TO, OR ASSIGNED TO, POSTS OF DUTY IN FOREIGN AREAS. THE TRAVEL OF THESE EMPLOYEES IS GOVERNED BY THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, OR THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED; ***

AN EMPLOYEE'S OFFICIAL OR PERMANENT DUTY STATION IS THE PLACE AT WHICH HE ACTUALLY IS STATIONED; THAT IS, THE PLACE WHERE THE EMPLOYEE EXPECTS, AND IS EXPECTED, TO SPEND THE GREATER PART OF HIS TIME, 32 COMP. GEN. 87, 88 (1952). HE REMAINS ASSIGNED TO SUCH STATION UNTIL THE EFFECTIVE DATE OF A TRANSFER WHICH IS THE DATE HE ACTUALLY ENTERS ON DUTY AT THE NEW STATION. 46 COMP. GEN. 595, 596 (1967). THEREFORE, IN THE INSTANT CASES THE EMPLOYEES WERE STATIONED IN JAPAN AND THE PROVISIONS OF THE HANDBOOK DID NOT APPLY TO THEM. ACCORDINGLY, THE EMPLOYEES ARE NOT ENTITLED TO THE ALLOWANCES CLAIMED UNDER THE PROVISIONS OF CIRCULAR NO. A-56.

PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, PROVIDES FOR THE WAIVER OF OVERPAYMENTS OF PAY. HOWEVER, THE TERM "PAY" IS DEFINED FOR THE PURPOSES OF THIS WAIVER AUTHORITY IN 4 CFR 91.2(B) AS FOLLOWS:

(B) "PAY" MEANS SALARY, WAGES, PAY, COMPENSATION, EMOLUMENTS, AND REMUNERATION FOR SERVICES. IT INCLUDES OVERTIME PAY; NIGHT, SUNDAY STANDBY, IRREGULAR AND HAZARDOUS DUTY DIFFERENTIAL; PAY FOR SUNDAY AND HOLIDAY WORK; PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE; AND SEVERANCE PAY. IT DOES NOT INCLUDE EXPENSES OF TRAVEL AND TRANSPORTATION OR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS.

THE ABOVE REGULATION WAS PROMULGATED PURSUANT TO THE WAIVER STATUTE AND HAS THE FORCE AND EFFECT OF LAW. THEREFORE, THERE IS NO AUTHORITY TO WAIVE THE OVERPAYMENTS. IN THIS CONNECTION WE POINT OUT THAT THE ABOVE STATUTE WAS AMENDED BY PUBLIC LAW 92-453, APPROVED OCTOBER 2, 1972, TO INCLUDE CERTAIN ALLOWANCES WITHIN THE WAIVER AUTHORITY BUT SPECIFICALLY EXCLUDED FROM WAIVER TRANSPORTATION EXPENSES AND ALLOWANCES AS WELL AS RELOCATION EXPENSES. THE FACT THAT SEVERAL OF THE ORDERS AUTHORIZED THE ALLOWANCES IN QUESTION AND THAT MR. CARPIO WAS INFORMED HE WOULD BE ENTITLED TO SUCH ALLOWANCE DOES NOT CONSTITUTE ANY BASIS FOR PAYMENT THEREOF SINCE NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS GRANTED BY STATUTE AND REGULATION. SEE B-168630, JANUARY 23, 1970, COPY ENCLOSED.

CONCERNING YOUR REQUEST FOR SUBMISSION OF THE CLAIMS IN QUESTION TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928 (31 U.S.C. 236), YOU ARE ADVISED THAT OUR OFFICE HAS VIEWED THAT ACT AS PROVIDING AN EXTRAORDINARY REMEDY FOR USE IN EXTRAORDINARY CIRCUMSTANCES. THE CASES WHICH WE HAVE REPORTED TO THE CONGRESS UNDER 31 U.S.C. 236 GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM. TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES. WE THEREFORE MUST DECLINE TO REPORT THESE CASES TO CONGRESS AS MERITORIOUS CLAIMS.

WE ALSO POINT OUT THAT, EVEN IF THE EMPLOYEES INVOLVED WERE ENTITLED TO ALLOWANCES UNDER CIRCULAR NO. A-56, THEY WOULD NOT BE ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED IN PURCHASING RESIDENCES OR SUBSISTENCE IN EXCESS OF 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS. SEE CIRCULAR NO. A-56, REVISED JUNE 26, 1969, SECTIONS 4.1A, AND 2.5B(1) AND (2).