B-179686, MAY 14, 1974, 53 COMP GEN 861

B-179686: May 14, 1974

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BETWEEN FOREIGN ASSIGNMENTS IS CLEAR. " AS A WHOLE THEREBY PERMITTING REIMBURSEMENT REGARDLESS OF WHERE THE EXPENSES ARE REIMBURSABLE IF "INCURRED *** IN A FOREIGN AREA" OR INCIDENT TO ESTABLISHING HIMSELF AT A POST IN A FOREIGN AREA.". EXPENSES ARE REIMBURSABLE IF "INCURRED *** IN A FOREIGN AREA" OR BY AN "EMPLOYEE *** IN A FOREIGN AREA" AND. THE DEPARTMENT CONTENDS THAT THE FORMER INTERPRETATION IS THE CORRECT ONE AND THAT OUR DECISION. THE LANGUAGE OF WHICH WAS SIMILAR TO THE PRESENT SECTION 5924(2). THE DEPARTMENT FURTHER STATES: *** THE FACTS OF THE CASE ARE NOT SET OUT FULLY IN THE OPINION BUT IT APPEARS THAT THE EMPLOYEE WAS REIMBURSED FOR EXPENSES INCURRED IN THE UNITED STATES PRIOR TO HIS DEPARTURE FOR MANILA.

B-179686, MAY 14, 1974, 53 COMP GEN 861

FOREIGN SERVICE - TRAVEL EXPENSES - HOTEL EXPENSES - UNITED STATES HOTEL EXPENSES INCURRED IN THE U.S. INCIDENT TO A MOVE TO A POST OF ASSIGNMENT ABROAD CANNOT BE REIMBURSED UNDER THE TRANSFER ALLOWANCE AUTHORITY OF 5 U.S.C. 5924(2). WHILE THE CONGRESSIONAL INTENT TO EXTEND THE TRANSFER ALLOWANCE TO COVER TEMPORARY LODGING EXPENSES INCURRED INCIDENT TO AN EMPLOYEE'S ESTABLISHING HIMSELF AT A POST IN THE U.S. BETWEEN FOREIGN ASSIGNMENTS IS CLEAR, WE FIND NO SUCH INTENT WITH REGARD TO TEMPORARY LODGING EXPENSES INCURRED IN THE U.S. INCIDENT TO ASSIGNMENTS ABROAD.

IN THE MATTER OF REIMBURSEMENT OF HOTEL EXPENSES, MAY 14, 1974:

THE DEPARTMENT OF STATE HAS REQUESTED OUR OPINION AS TO WHETHER AN ALLOWANCE FOR HOTEL EXPENSES INCURRED IN THE UNITED STATES BY AN EMPLOYEE PRIOR TO DEPARTURE TO A POST OF ASSIGNMENT OVERSEAS MAY BE PAID UNDER THE AUTHORITY OF 5 U.S.C. 5924(2).

SECTION 5924(2) STATES:

THE FOLLOWING COST-OF-LIVING ALLOWANCES MAY BE GRANTED, WHEN APPLICABLE, TO AN EMPLOYEE IN A FOREIGN AREA:

(2) A TRANSFER ALLOWANCE FOR EXTRAORDINARY, NECESSARY, AND REASONABLE EXPENSES, NOT OTHERWISE COMPENSATED FOR, INCURRED BY AN EMPLOYEE INCIDENT TO ESTABLISHING HIMSELF AT A POST OF ASSIGNMENT IN

(A) A FOREIGN AREA, OR

(B) THE UNITED STATES BETWEEN ASSIGNMENTS TO POST IN FOREIGN AREAS.

WITH RESPECT TO THE LOCATION AT WHICH THESE EXPENSES CAN BE INCURRED, THE DEPARTMENT HAS SUGGESTED THAT THE ABOVE LANGUAGE MAY BE INTERPRETED IN EITHER OF TWO WAYS. THE PHRASE "IN FOREIGN AREA" IN SUBSECTION (2)(A) MAY BE VIEWED AS MODIFYING THE LANGUAGE "INCURRED BY AN EMPLOYEE INCIDENT TO ESTABLISHING HIMSELF AT A POST OF ASSIGNMENT IN," AS A WHOLE THEREBY PERMITTING REIMBURSEMENT REGARDLESS OF WHERE THE EXPENSES ARE REIMBURSABLE IF "INCURRED *** IN A FOREIGN AREA" OR INCIDENT TO ESTABLISHING HIMSELF AT A POST IN A FOREIGN AREA." ON THE OTHER HAND, THE PHRASE IN QUESTION MAY BE READ AS MODIFYING EITHER THE WORD "INCURRED" OR THE WORD "EMPLOYEE." UNDER THIS INTERPRETATION, EXPENSES ARE REIMBURSABLE IF "INCURRED *** IN A FOREIGN AREA" OR BY AN "EMPLOYEE *** IN A FOREIGN AREA" AND, THEREFORE, HOTEL EXPENSES INCURRED IN THE UNITED STATES WOULD NOT QUALIFY.

THE DEPARTMENT CONTENDS THAT THE FORMER INTERPRETATION IS THE CORRECT ONE AND THAT OUR DECISION, 29 COMP. GEN. 461 (1950), SUPPORTS THEIR VIEW. THE DEPARTMENT CITES OUR DECISION AS HOLDING THAT SECTION 901(2)(II) OF THE FOREIGN SERVICE ACT OF 1946, THE LANGUAGE OF WHICH WAS SIMILAR TO THE PRESENT SECTION 5924(2), AUTHORIZED PAYMENT OF A TRANSFER ALLOWANCE TO A NEW EMPLOYEE FOR EXPENSES INCURRED BECAUSE OF THE UNAVAILABILITY OF STEAMSHIP ACCOMMODATIONS TO MANILA. THE DEPARTMENT FURTHER STATES:

*** THE FACTS OF THE CASE ARE NOT SET OUT FULLY IN THE OPINION BUT IT APPEARS THAT THE EMPLOYEE WAS REIMBURSED FOR EXPENSES INCURRED IN THE UNITED STATES PRIOR TO HIS DEPARTURE FOR MANILA.

OUR DECISION AT 29 COMP. GEN. 461 DOES NOT STAND FOR NOR DOES IT SUPPORT THIS PROPOSITION. THIS DECISION INVOLVED A NEWLY APPOINTED EMPLOYEE WHO WAS TRANSFERRED FROM BROOKLYN, NEW YORK, TO MANILA, P.I. HIS TRAVEL WAS TO HAVE BEGUN ON OR ABOUT OCTOBER 18, 1948, BUT BECAUSE OF THE UNAVAILABILITY OF STEAMSHIP ACCOMMODATIONS HE DID NOT COMMENCE TRAVELING UNTIL DECEMBER 20, 1948, ARRIVING IN MANILA ON JANUARY 10, 1949. THE DELAY WAS IMPORTANT NOT BECAUSE IT MAY HAVE RESULTED IN THE EMPLOYEE'S HAVING INCURRED EXPENSES IN THE UNITED STATES, BUT BECAUSE AS A RESULT THE EMPLOYEE ARRIVED IN THE FOREIGN AREA AFTER JANUARY 2, 1949, THE EFFECTIVE DATE OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS (FOREIGN AREAS). IN THAT DECISION, OUR OPINION WAS REQUESTED IN REGARD TO TWO QUESTIONS: (1) WHETHER THE EMPLOYEE'S CLAIM FOR A TRANSFER ALLOWANCE MUST BE DISALLOWED ON THE GROUND THAT HE WAS A NEW APPOINTEE, AS DISTINGUISHED FROM A TRANSFEREE; AND (2) WHETHER AN EMPLOYEE WHOSE TRAVEL WAS BEGUN PRIOR TO THE EFFECTIVE DATE OF THE REGULATIONS WAS ELIGIBLE FOR THE TRANSFER ALLOWANCE. OUR DECISION HELD THAT THE NEWLY APPOINTED EMPLOYEE WAS ENTITLED TO RECEIVE A TRANSFER ALLOWANCE INCIDENT TO HIS INITIAL ASSIGNMENT ABROAD TO THE SAME EXTENT AS AN EMPLOYEE TRANSFERRED FROM ONE POST TO ANOTHER AND THAT HE WAS ELIGIBLE FOR THE TRANSFER ALLOWANCE IF THE REGULATIONS WERE IN EFFECT AT THE FOREIGN DUTY STATION AT THE TIME OF HIS ARRIVAL.

ALTHOUGH THAT DECISION DOES NOT SUPPORT THE PROPOSITION THAT CERTAIN EXPENSES INCURRED IN THE UNITED STATES ARE REIMBURSABLE UNDER SECTION 5924(2), BASED ON THE LEGISLATIVE HISTORY OF THIS SECTION IT IS OUR VIEW THAT CONGRESS DID NOT RESTRICT PAYMENT OF THE TRANSFER ALLOWANCE BASED ON THE LOCATION AT WHICH EXPENSES ARE INCURRED. IT IS OUR FURTHER VIEW, HOWEVER, THAT CONGRESS INTENDED THIS ALLOWANCE TO COVER ONLY CERTAIN TYPES OF EXPENSES AND THAT THE COST OF HOTEL ACCOMMODATIONS WAS NOT ONE OF THE EXPENSES INTENDED TO BE COVERED.

AT PAGE 6 OF S. REPORT 1647 ON H.R. 7758, 86TH CONG., 2D SESS., (1960), EXAMPLES OF THE TYPES OF EXPENSES COVERED BY THE TRANSFER ALLOWANCE AS "EXTRAORDINARY, NECESSARY, AND REASONABLE" ARE ENUMERATED, AS FOLLOWS:

THE TRANSFER ALLOWANCE IS INTENDED TO REIMBURSE PARTIALLY AN EMPLOYEE FOR THE ADDITIONAL EXPENSE INCURRED BECAUSE OF THE NECESSITY FOR CHANGING TYPES OF CLOTHING, PROVIDING INSURANCE ON SHIPMENTS OF HOUSEHOLD GOODS, AND REPLACING FURNITURE AND HOUSEHOLD EQUIPMENT AS NECESSARY BECAUSE OF TRANSFER TO A NEW ENVIRONMENT.

AT PAGE 13 OF THE REPORT OF HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, ON H.R. 7758, H. REPORT NO. 902, 86TH CONG., 1ST SESS., (1959), FURTHER MENTION IS MADE OF THE TYPES OF EXPENSES INCLUDED AS PART OF THE TRANSFER ALLOWANCE:

THIS TRANSFER ALLOWANCE WILL COVER, FOR EXAMPLE, INITIAL COSTS AND UNUSUAL OUT-OF-POCKET EXPENSES IN CONNECTION WITH TRANSFER TO A POST OF ASSIGNMENT IN A FOREIGN AREA WHERE, FOR EXAMPLE, A DIFFERENT TYPE OF CLOTHING IS REQUIRED OR ELECTRICAL EQUIPMENT OF A DIFFERENT VOLTAGE IS NECESSARY.

AS EXPLAINED IN THE SENATE AND HOUSE REPORTS QUOTED ABOVE CONGRESS INTENDED THAT AN EMPLOYEE BE PARTIALLY REIMBURSED FOR ADDITIONAL EXPENSES INCURRED, FOR EXAMPLE, BECAUSE OF THE NECESSITY FOR A DIFFERENT TYPE OF CLOTHING IN HIS NEW POST OF ASSIGNMENT. IT CLEARLY MAKES NO DIFFERENCE WHETHER SUCH CLOTHING IS PURCHASED IN THE UNITED STATES OR AT THE NEW POST OF ASSIGNMENT. FOR THIS REASON IT IS OUR OPINION THAT THE LOCATION AT WHICH THE EXPENSE IS INCURRED WAS NOT RESTRICTED BY CONGRESS AND, THEREFORE, WE AGREE WITH THE DEPARTMENT OF STATE THAT THE FIRST INTERPRETATION AS STATED ABOVE IS THE CORRECT ONE. THIS, HOWEVER, IS NOT DISPOSITIVE OF THE MORE IMPORTANT ISSUE OF WHETHER HOTEL EXPENSES INCURRED IN THE UNITED STATES BY AN EMPLOYEE PRIOR TO DEPARTURE TO A POST OF ASSIGNMENT OVERSEAS ARE INCLUDED IN THE TYPES OF EXPENSES THAT SECTION 5924(2) REFERS TO AS "EXTRAORDINARY, NECESSARY AND REASONABLE."

THE DEPARTMENT IS OF THE OPINION THAT HOTEL EXPENSES WERE INTENDED TO BE INCLUDED UNDER SECTION 5924(2). THAT POSITION IS SUMMARIZED AS FOLLOWS IN THE SUBMISSION:

AN EMPLOYEE WHO RETURNS HOME TO THE UNITED STATES IS ELIGIBLE FOR A "HOME SERVICE TRANSFER ALLOWANCE" (LODGING PORTION) IF HE IS FORCED TO INCUR HOTEL BILLS INCIDENT TO HIS RETURN. A NEW EMPLOYEE OR AN EMPLOYEE RETURNING OVERSEAS AFTER AN ASSIGNMENT IN THE UNITED STATES MAY INCUR SIMILAR EXPENSES IN THE UNITED STATES PRIOR TO HIS DEPARTMENT FOR HIS POST OVERSEAS. THERE IS NO REASON TO DISCRIMINATE AGAINST THE EMPLOYEE IN THE SECOND SITUATION.

ACCORDING TO THE COMPTROLLER GENERAL'S 1950 OPINION, THE DEPARTMENT COULD REIMBURSE SUCH AN EMPLOYEE. THE INTERVENING STATUTORY AMENDMENTS HAVE NOT BEEN DIRECTED AGAINST THE MATTER CONSIDERED BY THE 1950 OPINION AND ORDINARILY, IT IS ASSUMED THAT THE LEGISLATORS APPROVE OF DECISIONS REGARDING A PARTICULAR LAW WHEN THEY REENACT THE LAW WITHOUT INDICATION OF ANY DISAPPROVAL. ***

THE DEPARTMENT'S ARGUMENT IS BASED IN PART OF ITS INTERPRETATION OF OUR 1950 DECISION, 29 COMP. GEN. 461, WHICH IT CONSIDERS IMPLICITLY UPHELD PAYMENT OF A NEW EMPLOYE'S HOTEL EXPENSES UNDER LANGUAGE SIMILAR TO THAT OF THE PRESENT SECTION 5924(2). OUR 1950 DECISION, AS DISCUSSED ABOVE, DID NOT SO HOLD AND, THUS, DOES NOT SUPPORT THE DEPARTMENT' POSITION.

WE ARE AWARE OF CONGRESS' GENERAL INTENT AS STATED IN SECTION 101 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, PUBLIC LAW 86-707, SEPTEMBER 6, 1960, 74 STAT. 792, TO IMPROVE ADMINISTRATION OF GOVERNMENT OVERSEAS ACTIVITIES BY PROVIDING A MEANS FOR MORE EFFICIENTLY COMPENSATING GOVERNMENT EMPLOYEES FOR THE EXTRA COSTS AND HARDSHIPS INCIDENT TO THEIR ASSIGNMENTS OVERSEAS. HOWEVER, WE FIND NO SPECIFIC INTENT ON THE PART OF THE LEGISLATORS THAT THE TRANSFER ALLOWANCE AUTHORIZED UNDER SECTION 5924(2) SHOULD REIMBURSE THE COST OF HOTEL EXPENSES INCURRED IN THE UNITED STATES BY A NEW EMPLOYEE OR AN EMPLOYEE RETURNING OVERSEAS AFTER AN ASSIGNMENT IN THE UNITED STATES.

THE DEPARTMENT OF STATE CITES THE APPARENT INEQUITY OF DENYING AN EMPLOYEE REIMBURSEMENT FOR HOTEL EXPENSES INCURRED IN THE UNITED STATES PRIOR TO HIS DEPARTURE FOR AN ASSIGNMENT ABROAD IN VIEW OF THE FACT THAT HOTEL EXPENSES INCURRED IN THE UNITED STATES ARE REIMBURSABLE AS PART OF THE HOME SERVICE TRANSFER ALLOWANCE PAYABLE INCIDENT TO AN EMPLOYEE'S ESTABLISHING HIMSELF AT A POST OF ASSIGNMENT IN THE UNITED STATES BETWEEN ASSIGNMENTS TO POSTS IN FOREIGN AREAS. EMPLOYEES IN THE LATTER CATEGORY ARE ENTITLED TO A HOME SERVICE TRANSFER ALLOWANCE BY VIRTUE OF THE LANGUAGE OF 5 U.S.C. 5924(2)(B), QUOTED ABOVE. AS DEFINED AT CHAPTER 250 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) THE HOME SERVICE TRANSFER ALLOWANCE DOES PROVIDE FOR REIMBURSEMENT OF TEMPORARY LODGING EXPENSES INCURRED IN THE UNITED STATES. SUCH EXPENSES ARE REIMBURSABLE IN THAT CASE, HOWEVER, BECAUSE OF THE VERY SPECIFIC INTENT OF CONGRESS IN ENACTING SECTION 10(A) OF THE FOREIGN SERVICE ACT AMENDMENTS OF 1955, PUBLIC LAW 22-84, 69 STAT. 24, FROM WHICH THE PRESENT AUTHORITY AT 5 U.S.C. 5924(2)(B) IS DERIVED. THE PURPOSE OF THAT ENACTMENT WAS TO EXTEND THE TRANSFER ALLOWANCE TO COVER TEMPORARY LODGING EXPENSES.

AT PAGE 14 OF HOUSE REPORT NO. 229, 84TH CONG., 1ST SESS. (1955), THE PURPOSE OF SECTION 10(A) OF THE FOREIGN SERVICE ACT AMENDMENTS OF 1955 IS EXPLAINED AS FOLLOWS:

(A) HOME SERVICE TRANSFER ALLOWANCE

THIS SUBSECTION AMENDS THE FOREIGN SERVICE ACT OF 1946 TO GIVE SPECIFIC AUTHORIZATION FOR A HOME SERVICE TRANSFER ALLOWANCE TO AN EMPLOYEE ASSIGNED TO A POST IN THE UNITED STATES BETWEEN ASSIGNMENTS TO POSTS ABROAD. SUCH AN ALLOWANCE IS ALREADY BEING PROVIDED TO EMPLOYEES TRANSFERRED TO A NEW POST IN A FOREIGN COUNTRY.

IN THE FOREIGN SERVICE, A TRANSFER BACK TO THE UNITED STATES IS JUST ANOTHER IN A SERIES OF TRANSFERS. THE UNUSUAL EXPENSES INCIDENT THERETO MAY BE AS GREAT OR GREATER THAN SIMILAR COSTS INCURRED IN TRANSFERRING BETWEEN POSTS ABROAD. IN THE CASE OF EMPLOYEES OF LONG YEARS OF SERVICE, A TRANSFER TO THE UNITED STATES ADDS THAT MUCH MORE TO THE TOTAL OUT-OF- POCKET EXPENDITURE INCIDENT TO THE MOBILE NATURE OF THEIR EMPLOYMENT. THE HOME SERVICE TRANSFER ALLOWANCE CONTEMPLATED WOULD BE A COMBINATION OF TWO PAYMENTS: (1) THAT COMPARABLE TO THE TEMPORARY LODGING ALLOWANCE AT OVERSEAS POSTS, I.E., REIMBURSEMENT FOR HOTEL ROOM EXPENSES FOR A SHORT PERIOD WHILE THE EMPLOYEE IS LOOKING FOR PERMANENT RESIDENCE QUARTERS, AND (2) A LUMP-SUM PAYMENT TO HELP OFFSET SUCH INEVITABLE EXPENSES CONNECTED WITH TRANSFERS AS THOSE COVERED BY THE EXISTING TRANSFER ALLOWANCE AT PRESENT PAID ONLY ON ASSIGNMENT TO CERTAIN POSTS ABROAD, NAMELY, EXPENSES FOR CLOTHING TO MEET THE DIFFERENT CLIMATIC CONDITIONS AT THE NEW POST, FOR SPECIAL TYPES OF FURNITURE AND HOUSEHOLD EQUIPMENT, FOR INSURANCE ON OR REPAIR OF EFFECTS DAMAGED IN SHIPMENT, ETC.

IT IS INTENDED THAT THIS ALLOWANCE BE PAID TO OFFICERS AND EMPLOYEES OF THE SERVICE WHO ARE ASSIGNED TO DUTY IN THE CONTINENTAL UNITED STATES AND WHO MAY BE NORMALLY EXPECTED TO RETURN TO DUTY ABROAD. IT IS PLANNED TO PAY THIS ALLOWANCE AT THE TIME OF ASSIGNMENT TO THE UNITED STATES. MUST OBVIOUSLY BE PAID WITHOUT REQUIRING PROOF OF RETURN ABROAD, SINCE THAT WOULD DEFEAT THE PURPOSE OF THIS ALLOWANCE. IT IS NOT THE INTENT OF THIS SECTION THAT SUCH PAYMENTS BE REPAID BY THE OFFICER OR EMPLOYEE OR BY HIS SURVIVORS IN THE EVENT HIS RETURN TO SERVICE ABROAD IS MADE IMPOSSIBLE BY DEATH, DISABILITY, OR OTHER UNFORESEEN CIRCUMSTANCES PREVENTING SUCH RETURN. HOWEVER, IF THE OFFICER OR EMPLOYEE REFUSES TO RETURN ABROAD FOR PERSONAL REASONS UNACCEPTABLE TO THE SECRETARY, HE WILL BE REQUIRED TO MAKE REIMBURSEMENT.

THE ABOVE LANGUAGE MAKES IT CLEAR THAT THE EXTENSION OF THE TRANSFER ALLOWANCE TO COVER TEMPORARY LODGING EXPENSES WAS STRICTLY CONFINED TO THE CASE OF EMPLOYEES ESTABLISHING THEMSELVES AT POSTS OF ASSIGNMENT IN THE UNITED STATES BETWEEN ASSIGNMENTS TO POSTS IN FOREIGN AREAS. WE REGARD AS PARTICULARLY SIGNIFICANT THE STATEMENT THEREIN AS TO THE TYPES OF EXPENSES COVERED BY THE THEN EXISTING TRANSFER ALLOWANCE FOR IT IS THAT ALLOWANCE WITH WHICH WE ARE HERE CONCERNED.

FOR THE REASONS DISCUSSED ABOVE, HOTEL OR OTHER TEMPORARY LODGING EXPENSES INCURRED IN THE UNITED STATES BY AN EMPLOYEE INCIDENT TO A TRANSFER ABROAD MAY NOT BE REIMBURSED AS PART OF THE TRANSFER ALLOWANCE AUTHORIZED UNDER 5 U.S.C. 5924(2). TEMPORARY LODGING EXPENSES PAYABLE TO EMPLOYEES INCIDENT TO ASSIGNMENTS ABROAD ARE THOSE PRESCRIBED UNDER THE AUTHORITY OF 5 U.S.C. 5923(1).