B-177565, FEB 9, 1973

B-177565, FEB 9, 1973

CIVILIAN PERSONNEL - NEW APPOINTEE - REAL ESTATE EXPENSES - ERRONEOUS ADVICE - PER DIEM DECISION DENYING THE CLAIM OF STEVE MITCHELL, AN EMPLOYEE OF THE BUREAU OF MINES, FOR REIMBURSEMENT OF EXPENSES INCIDENT TO THE PURCHASE OF A RESIDENCE IN CONNECTION WITH HIS INITIAL APPOINTMENT. REAL ESTATE AND RELATED MISCELLANEOUS EXPENSES MAY NOT BE REIMBURSED A NEWLY APPOINTED EMPLOYEE. OMB CIRCULAR NO. A-56, SECTION 4.4 AND 3.2B. MOREOVER, ERRONEOUS ADVICE GIVEN THE EMPLOYEE REGARDING SUCH REIMBURSEMENT DOES NOT PROVIDE A BASIS FOR RECOVERY OF SUCH EXPENSES SINCE THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACT AND ADVICES OF ITS EMPLOYEES, EVEN IF SUCH ACTS ARE COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888). ALSO, NO PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE MAY BE MADE FOR THE MEMBERS OF A NEW APPOINTEE'S IMMEDIATE FAMILY. OMB CIRCULAR NO. A-56, SECTION 2.2C(1).

TO MR. JOSEPH A. PAGLIASOTTI:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 27, 1972, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER IT IS PROPER TO CERTIFY FOR PAYMENT THE VOUCHER SUBMITTED BY MR. STEVE MITCHELL IN THE AMOUNT OF $688.85 FOR REIMBURSEMENT OF EXPENSES INCIDENT TO THE PURCHASE OF A RESIDENCE BY MR. MITCHELL IN CONNECTION WITH HIS INITIAL APPOINTMENT TO THE BUREAU OF MINES IN ALBANY, NEW YORK.

MR. MITCHELL WAS HIRED BY THE BUREAU OF MINES AS A NEW APPOINTEE FOR THE POSITION OF MINING ENGINEER, GS-880-12, ON MAY 2, 1971. ALTHOUGH THE RECORD DOES NOT INDICATE THAT MR. MITCHELL WAS APPOINTED TO A "MANPOWER SHORTAGE" POSITION, THE CIVIL SERVICE COMMISSION HAD DETERMINED THAT A MANPOWER SHORTAGE EXISTED NATIONWIDE FOR ALL PROFESSIONAL POSITIONS IN THE ENGINEERING SERIES, GS-800, WHICH APPARENTLY WOULD INCLUDE THE POSITION TO WHICH MR. MITCHELL WAS APPOINTED. SEE FEDERAL PERSONNEL MANUAL 571-A-3, JUNE 15, 1970. ACCORDINGLY, TRAVEL AUTHORIZATION NO. T5801043, ISSUED TO MR. MITCHELL ON APRIL 26, 1971, AUTHORIZED TRAVEL EXPENSES FOR MR. MITCHELL AND HIS WIFE FROM CENTER VALLEY, PENNSYLVANIA, TO ALBANY, AND TRANSPORTATION AND TEMPORARY STORAGE OF HIS HOUSEHOLD GOODS. MR. MITCHELL, APPARENTLY BELIEVING THAT HE WAS ENTITLED TO REIMBURSEMENT FOR REAL ESTATE AND MISCELLANEOUS EXPENSES IF HE PURCHASED A RESIDENCE WITHIN ONE YEAR, PURCHASED THE RESIDENCE FOR WHICH HE CLAIMS REIMBURSEMENT ON APRIL 20, 1972.

YOU STATE THAT MR. MITCHELL WAS NOT AUTHORIZED AN ALLOWANCE FOR REAL ESTATE OR MISCELLANEOUS EXPENSES BECAUSE SECTIONS 4.4 AND 3.2B, RESPECTIVELY, OF THE OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A- 56, REVISED, SPECIFICALLY PROHIBIT REIMBURSEMENT OF SUCH EXPENSES TO NEW APPOINTEES. ALTHOUGH IT APPEARS THAT MR. MITCHELL WAS AWARE OF THESE REGULATIONS, YOUR DOUBT IN THIS MATTER ARISES FROM THE FACT THAT MR. MITCHELL ALLEGES THAT IN INCURRING THESE EXPENSES HE RELIED ON THE ADVICE OF PERSONNEL IN THE DIVISION OF FINANCE THAT THE EXPENSES WERE REIMBURSABLE.

WHILE THE ERRONEOUS ADVICE GIVEN TO MR. MITCHELL IS REGRETTABLE, IT PROVIDES NO BASIS FOR ALLOWING REIMBURSEMENT OF THE EXPENSES. 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 SECTIONS 4.4 AND 3.2B OF OMB CIRCULAR NO. A 56, REVISED, EXPRESSLY PRECLUDE REIMBURSEMENT FOR REAL ESTATE AND MISCELLANEOUS EXPENSES TO NEW APPOINTEES, YOU ARE ADVISED THAT MR. MITCHELL'S CLAIM MAY NOT BE ALLOWED.

FURTHERMORE, WE NOTE THAT THE TRAVEL AUTHORIZATION AUTHORIZED A PER DIEM OF $15 FOR MR. MITCHELL'S WIFE. SECTION 2.2B OF CIRCULAR NO. A-56 AUTHORIZES THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE FOR A TRANSFERRED EMPLOYEE'S IMMEDIATE FAMILY WHEN TRAVELING BETWEEN THE OLD AND NEW OFFICIAL STATION. HOWEVER, SECTION 2.2C(1) EXPRESSLY PRECLUDES THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE FOR THE MEMBERS OF A NEW APPOINTEE'S IMMEDIATE FAMILY. ALTHOUGH THE PRESENT RECORD DOES NOT INDICATE WHAT AMOUNTS OF PER DIEM HAVE BEEN PAID TO MR. MITCHELL, ANY IMPROPER PAYMENTS SHOULD BE RECOVERED.

IN VIEW OF THE ABOVE, THE VOUCHER IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.