B-179635, MAR 20, 1974

B-179635: Mar 20, 1974

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EMPLOYEE'S CLAIM FOR COSTS OF NEW FURNISHINGS WAS PROPERLY DISALLOWED SINCE THERE IS NO LEGAL AUTHORITY FOR PAYMENT OF THIS TYPE OF EXPENSE. GOVERNMENT IS NOT BOUND BY UNAUTHORIZED REPRESENTATIONS OF AGENTS. IS NOT ELIGIBLE FOR REIMBURSEMENT OF EXPENSES INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS AT NEW STATION SINCE SUCH REIMBURSEMENT IS NOT AUTHORIZED FOR NEW EMPLOYEES. TO CLAIMS DIVISION OF GENERAL ACCOUNTING OFFICE: THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF AUGUST 3. WHO WAS A RESIDENT OF NEW YORK. WAS APPOINTED ON DECEMBER 7. MAIOLO WAS ADVISED DURING A TELEPHONE CALL WITH A REPRESENTATIVE OF THE INS CENTRAL PERSONNEL OFFICE. HE WOULD HAVE TO BEAR THE EXPENSE OF ESTABLISHING HIS RESIDENCE AT THE NEW STATION AND OF TRANSPORTING HIMSELF AND HIS FAMILY TO THAT LOCATION.

B-179635, MAR 20, 1974

INDIVIDUAL APPOINTED TO POSITION OUTSIDE CONTINENTAL UNITED STATES, RELYING ON ERRONEOUS ADVICE OF AGENCY PERSONNEL OFFICE THAT HE COULD NOT MOVE HOUSEHOLD EFFECTS TO NEW STATION AT GOVERNMENT EXPENSE, PURCHASED REPLACEMENT FURNISHINGS AT NEW STATION. EMPLOYEE'S CLAIM FOR COSTS OF NEW FURNISHINGS WAS PROPERLY DISALLOWED SINCE THERE IS NO LEGAL AUTHORITY FOR PAYMENT OF THIS TYPE OF EXPENSE. ALSO, GOVERNMENT IS NOT BOUND BY UNAUTHORIZED REPRESENTATIONS OF AGENTS. INDIVIDUAL APPOINTED TO POSITION IN PUERTO RICO, ALTHOUGH ELIGIBLE FOR CERTAIN TRAVEL AND TRANSPORTATION EXPENSES INDIDENT TO REPORTING TO THAT PLACE FROM THE CONTINENTAL UNITED STATES, IS NOT ELIGIBLE FOR REIMBURSEMENT OF EXPENSES INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS AT NEW STATION SINCE SUCH REIMBURSEMENT IS NOT AUTHORIZED FOR NEW EMPLOYEES.

TO CLAIMS DIVISION OF GENERAL ACCOUNTING OFFICE:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF AUGUST 3, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, DISALLOWING THE CLAIMS OF MR. FRANCIS M. MAIOLO, AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE (INS), DEPARTMENT OF JUSTICE, FOR $6,719.26 FOR THE COST OF FURNISHING HIS QUARTERS AND TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE INCIDENT TO HIS INITIAL APPOINTMENT.

THE CLAIMANT, WHO WAS A RESIDENT OF NEW YORK, NEW YORK, WAS APPOINTED ON DECEMBER 7, 1970, FOR DUTY AT THE INS DISTRICT OFFICE, SAN JUAN, PUERTO RICO, AS A GENERAL ATTORNEY (NATIONALITY) ON JANUARY 25, 1971. IN EARLY DECEMBER 1970 MR. MAIOLO WAS ADVISED DURING A TELEPHONE CALL WITH A REPRESENTATIVE OF THE INS CENTRAL PERSONNEL OFFICE, WASHINGTON, D.C., THAT AS A NEW APPOINTEE, HE WOULD HAVE TO BEAR THE EXPENSE OF ESTABLISHING HIS RESIDENCE AT THE NEW STATION AND OF TRANSPORTING HIMSELF AND HIS FAMILY TO THAT LOCATION. RELYING ON THIS OFFICIAL EXPLANATION OF HIS TRAVEL BENEFITS, THE EMPLOYEE ELECTED NOT TO TRANSPORT HIS HOUSEHOLD EFFECTS TO SAN JUAN, PUERTO RICO, BUT TO PURCHASE NEW HOUSEHOLD FURNISHINGS AT HIS NEW STATION.

SHORTLY AFTER REPORTING FOR DUTY, MR. MAIOLO DISCOVERED HE HAD BEEN ERRONEOUSLY ADVISED AS TO HIS ENTITLEMENT TO TRAVEL AND RELOCATION BENEFITS AND REGISTERED AN OFFICIAL COMPLAINT TO THAT EFFECT IN MEMORANDUM DATED FEBRUARY 5, 1971, TO HIS DISTRICT DIRECTOR. ON APRIL 6, 1971, THE EMPLOYEE WAS ADVISED THAT HE WAS ENTITLED TO TRAVEL EXPENSES FOR HIMSELF AND TRANSPORTATION OF HIS IMMEDIATE FAMILY AND HOUSEHOLD EFFECTS. HOWEVER, THE EMPLOYEE HAD NOT ELECTED TO SHIP HIS HOUSEHOLD EFFECTS FROM NEW YORK TO SAN JUAN AND STATED HE WOULD SUFFER FINANCIAL LOSS IF HE SOLD HIS NEW FURNISHINGS AND SHIPPED THE OLD ONES. INSTEAD, HE SUBMITTED A CLAIM FOR REPLACEMENT FURNISHINGS PURCHASED IN PUERTO RICO IN THE AMOUNT OF $3,429.26 AND FOR A TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE IN THE AMOUNT OF $3,290 FOR HIMSELF AND HIS FAMILY FROM JANUARY 25, 1971, TO APRIL 6, 1971.

MR. MAIOLO CONTENDS THAT A REPRESENTATIVE OF THE GOVERNMENT IN THE INS CENTRAL PERSONNEL OFFICE ERRONEOUSLY ADVISED HIM OF HIS TRAVEL AND TRANSPORTATION ENTITLEMENTS, THAT HE RELIED ON THIS ERRONEOUS ADVICE IN GOOD FAITH, THAT HE CHANGED HIS POSITION, AND THE CHANGE CAUSED HIM TO SUSTAIN FINANCIAL DAMAGES FOR WHICH THE GOVERNMENT IS LIABLE. IN HIS LETTER OF AUGUST 7, 1973, HE MADE THE FOLLOWING OFFER OF SETTLEMENT WITH REGARD TO HIS CLAIM, "*** IN FULL SETTLEMENT OF THIS CLAIM, I WILL ACCEPT EITHER THE COST OF TRANSPORTATION OF MY HOUSEHOLD FURNISHINGS (THAT WHICH THE GOVERNMENT WAS OBLIGATED BY STATUTE TO ASSUME), OR THE COST OF REPLACEMENT OF NECESSARY HOUSEHOLD FURNISHINGS NECESSITATED BY THE GOVERNMENT'S MISREPRESENTATIONS."

SETTLEMENT OF CLAIMS BY THIS OFFICE IS GOVERNED BY 31 U.S.C. 71 AS IMPLEMENTED BY PART 31 OF TITLE 4, CODE OF FEDERAL REGULATIONS (CFR). THE BASIS ON WHICH THIS OFFICE EFFECTS SETTLEMENT OF A CLAIM IS SET FORTH IN 4 CFR 31.7 WHICH PROVIDES AS FOLLOWS:

"SEC 31.7 BASIS OF CLAIM SETTLEMENTS.

"CLAIMS ARE SETTLED ON THE BASIS OF THE FACTS AS ESTABLISHED BY THE GOVERNMENT AGENCY CONCERNED AND BY EVIDENCE SUBMITTED BY THE CLAIMANT. SETTLEMENTS ARE FOUNDED ON A DETERMINATION OF THE LEGAL LIABILITY OF THE UNITED STATES UNDER THE FACTUAL SITUATION INVOLVED AS ESTABLISHED BY THE WRITTEN RECORD. THE BURDEN IS ON CLAIMANTS TO ESTABLISH THE LIABILITY OF THE UNITED STATES, AND THE CLAIMANTS' RIGHT TO PAYMENT. THE SETTLEMENT OF CLAIMS IS BASED UPON THE WRITTEN RECORD ONLY."

THE ABOVE-QUOTED REGULATION REQUIRES THAT FOR A CLAIM TO BE ALLOWED, A DETERMINATION MUST BE MADE THAT THE PARTICULAR FACTUAL SITUATION SATISFIES THE REQUIREMENTS OF A STATUTE OR REGULATION ENTITLING THE EMPLOYEE TO PAYMENT. IN THIS CONNECTION, 5 U.S.C. 5722 ENTITLES A NEW APPOINTEE TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO REIMBURSEMENT OF EXPENSES INCURRED IN THE TRANSPORTATION OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM HIS RESIDENCE TO HIS PLACE OF EMPLOYMENT. THIS STATUTE DOES NOT AUTHORIZE ANY PAYMENT TO BE MADE IN LIEU OF TRANSPORTATION EXPENSES. HENCE, WE KNOW OF NO LEGAL BASIS THAT WOULD PERMIT PAYMENT TO THE EMPLOYEE OF THE REPLACEMENT COST OF HIS HOUSEHOLD FURNISHINGS OR AN AMOUNT IN LIEU OF EXPENSES INCURRED IN THE ACTUAL TRANSPORTATION OF HOUSEHOLD EFFECTS.

REGARDING MR. MAIOLO'S ARGUMENT THAT THE GOVERNMENT IS LIABLE FOR HIS EXPENSES BECAUSE HE CHANGED HIS POSITION AND INCURRED CERTAIN COSTS AS A RESULT OF ERRONEOUS ADVICE GIVEN HIM BY A GOVERNMENT EMPLOYEE IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND NOR RESPONSIBLE FOR THE UNAUTHORIZED OR INCORRECT STATEMENTS OF ITS AGENTS AND EMPLOYEES. POSEY V. UNITED STATES, 449 F.2D 228, 234 (1971). ALL GOVERNMENT AGENTS AND EMPLOYEES ARE SPECIAL AGENTS OF LIMITED AUTHORITY AND ALL PERSONS DEALING WITH SUCH AGENTS AND EMPLOYEES ARE CHARGED WITH NOTICE OF THAT FACT AND OF THE LIMITATIONS UPON THE AUTHORITY OF THE AGENTS WITH WHOM THEY DEAL. UNITED STATES V THOMPSON, 293 F. SUPP. 1307 (1967), AFFIRMED 408 F.2D 1075 (1969).

WHILE THE REPRESENTATIVE OF INS CENTRAL PERSONNEL WITH WHOM MR. MAIOLO SPOKE MAY HAVE BEEN CLOTHED WITH APPARENT AUTHORITY TO EXPLAIN TRAVEL, TRANSPORTATION AND OTHER ENTITLEMENTS TO EMPLOYEES, HE DID NOT HAVE AUTHORITY TO DIMINISH ENTITLEMENTS PROVIDED BY LAW OR TO ADVISE EMPLOYEES REGARDING THEIR ENTITLEMENTS CONTRARY TO THE LAW. THEREFORE THE GOVERNMENT IS NOT BOUND BY THE REPRESENTATIONS THAT HE MAY HAVE MADE WHICH WERE CONTRARY TO LAW. SIMILARLY, THE GOVERNMENT IS NOT BOUND BY LOSSES WHICH ARE AN INDIRECT RESULT OF ERRONEOUS ADVICE GIVEN BY A GOVERNMENT EMPLOYEE.

AS TO MR. MAIOLO'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE THERE IS NO LEGAL AUTHORITY WHICH WOULD PERMIT PAYMENT OF THIS CLAIM. ALTHOUGH SECTION 2.5 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56, REVISED, JUNE 26, 1969, IN FORCE AT THE TIME IN QUESTION, PROVIDED FOR PAYMENT OF SUBSISTENCE EXPENSES OF EMPLOYEES AND THEIR FAMILIES WHILE OCCUPYING TEMPORARY QUARTERS UPON TRANSFER TO A NEW OFFICIAL STATION, SECTION 2.5C OF THE CIRCULAR SPECIFICALLY EXCLUDED NEW APPOINTEES FROM SUCH BENEFITS.

UPON RECONSIDERATION IT IS DETERMINED THAT THE SETTLEMENT OF AUGUST 3, 1973, DISALLOWING MR. MAIOLO'S CLAIM FOR $6,719.26 MUST BE SUSTAINED.