B-180519, OCT 7, 1974

B-180519: Oct 7, 1974

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WHICH WAS IN EXCESS OF ACTUAL ALLOWANCE FOR TOUR WITH QUARTERS UNDER 6 FAM 162.2. BECAUSE QUARTERS WERE NOT ACTUALLY AVAILABLE AT TIME OF ARRIVAL. EMPLOYEE WAS IMMEDIATELY TRANSFERRED FROM LOS ANGELES TO WASHINGTON. EXCESS WEIGHT OF HOUSEHOLD GOODS: THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR RECONSIDERATION. IT IS NECESSARY TO SET OUT THE FACTS SURROUNDING MR. KUTA WAS TRANSFERRED FROM CLEVELAND. THERE WAS NOTHING TO INDICATE THAT GOVERNMENT QUARTERS WOULD BE FURNISHED FOR MR. IT IS STATED IN PERTINENT PART. KUTA'S HOUSEHOLD EFFECTS WERE PICKED UP BY A CARRIER FOR SHIPMENT ON GOVERNMENT BILL OF LADING NO. THE HOUSEHOLD EFFECTS WERE DELIVERED TO MR. THERE IS NO INDICATION IN THE RECORD OF THE WEIGHT OF GOODS PLACED IN STORAGE BY MR.

B-180519, OCT 7, 1974

VETERANS ADMINISTRATION EMPLOYEE, WHO OCCUPIED GOVERNMENT LEASED QUARTERS FOR MOST OF HIS TOUR OF DUTY IN MANILA, PHILIPPINES, HAD BEEN ALLOWED TO SHIP 4,972 POUNDS OF HOUSEHOLD GOODS, WHICH WAS IN EXCESS OF ACTUAL ALLOWANCE FOR TOUR WITH QUARTERS UNDER 6 FAM 162.2, BECAUSE QUARTERS WERE NOT ACTUALLY AVAILABLE AT TIME OF ARRIVAL. ON RETURN TO UNITED STATES, EMPLOYEE WAS IMMEDIATELY TRANSFERRED FROM LOS ANGELES TO WASHINGTON, D. C., BUT HOUSEHOLD GOODS SHIPPED DIRECTLY TO WASHINGTON. CLAIM FOR COST OF SHIPPING HOUSEHOLD GOODS IN EXCESS OF THE AMOUNT SHIPPED TO MANILA DISALLOWED, BECAUSE NO AUTHORITY EXISTS TO GRANT INCREASED SHIPPING ALLOWANCE WHEN EMPLOYEE RETURNS FROM OVERSEAS, NOR DOES FACT THAT SUCCESSIVE TRANSFERS OCCURRED INCREASE EXTENT OF ALLOWANCE.

FRED KUTA--EXCESS WEIGHT OF HOUSEHOLD GOODS:

THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR RECONSIDERATION, SUBMITTED BY MR. FRED KUTA, AN EMPLOYEE OF THE VETERANS ADMINISTRATION (VA), OF THE SETTLEMENT, DW2-2376798-AS-3 DATED SEPTEMBER 4, 1973, ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION, DISALLOWING MR. KUTA'S REQUEST FOR RELIEF FROM A CHARGE FOR THE TRANSPORTATION OF EXCESS WEIGHT OF HOUSEHOLD GOODS FROM MANILA, REPUBLIC OF THE PHILIPPINES TO WASHINGTON, D. C.

IN ORDER TO FULLY UNDERSTAND THE ISSUES PRESENTED IN THIS CLAIM, IT IS NECESSARY TO SET OUT THE FACTS SURROUNDING MR. KUTA'S TRANSFER TO MANILA AS WELL AS THOSE SURROUNDING HIS RETURN TO THE UNITED STATES. BY TRAVEL AUTHORITY NO. 358-106, DATED APRIL 29, 1968, MR. KUTA WAS TRANSFERRED FROM CLEVELAND, OHIO TO MANILA. THIS AUTHORIZATION PROVIDED FOR A TOTAL SHIPMENT AND STORAGE ALLOWANCE FOR HOUSEHOLD GOODS OF 10,500 POUNDS (NET), WITH A MAXIMUM OVERSEAS SHIPMENT OF 6,000 POUNDS AND NONTEMPORARY STORAGE AUTHORIZED FOR THE BALANCE. IN THE INITIAL TRAVEL AUTHORIZATION, THERE WAS NOTHING TO INDICATE THAT GOVERNMENT QUARTERS WOULD BE FURNISHED FOR MR. KUTA'S USE. HOWEVER, IN A MESSAGE DATED MAY 2, 1968, FROM THE VA CENTRAL OFFICE, WASHINGTON, D.C., TO MR. KUTA'S DUTY STATION, WITH INFORMATION COPY TO THE VA REGIONAL OFFICE IN MANILA, IT IS STATED IN PERTINENT PART, THAT:

"MR. KUTA'S SHIPPING WEIGHT AT GOVT. EXPENSE LIMITED TO 6000 LBS DUE TO USE OF FURNISHED QUARTERS PER VA/AID HOUSING AGREEMENT. BALANCE OF WEIGHT NOT EXCEEDING 4000 LBS MAY BE STORED LOCALLY AT GOVT. EXPENSE. EMPLOYEE RESPONSIBLE FOR EXCESS WEIGHT SHIPPED OR STORED."

ON MAY 16, 1968, MR. KUTA'S HOUSEHOLD EFFECTS WERE PICKED UP BY A CARRIER FOR SHIPMENT ON GOVERNMENT BILL OF LADING NO. C-8594398, WHICH INDICATED A NET SHIPPING WEIGHT OF 4,972 POUNDS. THE HOUSEHOLD EFFECTS WERE DELIVERED TO MR. KUTA IN THE PHILIPPINES ON SEPTEMBER 7, 1968. THERE IS NO INDICATION IN THE RECORD OF THE WEIGHT OF GOODS PLACED IN STORAGE BY MR. KUTA.

ON DECEMBER 19, 1968, A BILL FOR COLLECTION, IN THE AMOUNT OF $500.13, WAS ISSUED AGAINST MR. KUTA, TO RECOVER THE COST OF SHIPPING 1,372 POUNDS OF EXCESS WEIGHT OF HOUSEHOLD GOODS TO THE PHILIPPINES. THE EVENTS LEADING TO THE BILL BEGAN WITH A MESSAGE, DATED SEPTEMBER 10, 1968, FROM THE VA CENTRAL OFFICE TO THE VA REGIONAL OFFICE IN MANILA, WHICH STATED, IN PERTINENT PART:

"USAID LEASED HOUSING PROGRAM. ADMINISTRATIVELY DETERMINED MAXIMUM OF 6000 LBS FOR SHIPMENT OF HOUSEHOLD GOODS AND PERSONAL EFFECTS IS NOT CORRECT. IN ACCORDANCE WITH VA MANUAL MP-1 PART II PARA 215.00 THE PROVISIONS OF VOLUME 6 OF THE DEPARTMENT OF STATE FOREIGN AFFAIRS MANUAL ARE APPLICABLE TO VA EMPLOYEES ASSIGNED TO VARO MANILA. ACCORDINGLY, THE SCHEDULE OF SHIPPING AND STORAGE ALLOWANCES CONTAINED IN 6 FAM 162.2 PROVIDES MAXIMUM LIMITATIONS ***."

SUBSEQUENTLY THE BILL FOR COLLECTION WAS WITHDRAWN ON THE GROUNDS THAT MR. KUTA HAD BEEN FINALLY SELECTED FOR THE POSITION IN MANILA BEFORE THE VA/AID HOUSING AGREEMENT HAD BEEN SIGNED. IT SHOULD ALSO BE NOTED THAT MR. KUTA AND HIS FAMILY DID NOT MOVE INTO GOVERNMENT LEASED HOUSING UNTIL MARCH 1969.

ON MAY 3, 1972, TRAVEL AUTHORITY NO. 358-108 WAS ISSUED TRANSFERRING MR. KUTA FROM MANILA TO LOS ANGELES, CALIFORNIA. WITH REGARD TO THE SHIPMENT OF HOUSEHOLD GOODS, THE AUTHORIZATION PROVIDED:

"AUTHORIZED LIMITED SHIPMENT OF 4,972 LBS. HH GOODS FROM MANILA TO LOS ANGELES AND SHIPMENT OF HH GOODS IN STORAGE IN CLEVELAND. COMBINED SHIPMENT AND STORAGE NOT TO EXCEED 12,000 LBS. ***"

MR. KUTA ARRIVED IN LOS ANGELES ON JUNE 22, 1972. ON AUGUST 4, 1972, A "NOTIFICATION OF PERSONNEL ACTION" WAS PREPARED, PROMOTING MR. KUTA FROM GRADE GS-14 STEP 5 TO GRADE GS-15 STEP 2 AND TRANSFERRING HIM FROM LOS ANGELES TO WASHINGTON, D. C. THE RECORD DOES NOT CONTAIN A COPY OF THE TRAVEL AUTHORIZATION GOVERNING THE LAST TRANSFER. HOWEVER, APPARENTLY ON JULY 28, 1972, A MESSAGE WAS SENT FROM THE VA CENTRAL OFFICE, WASHINGTON, D. C., TO THE VA REGIONAL OFFICE, LOS ANGELES, WHICH STATED:

"INQUIRY INVOLVING SHIPMENT OF HOUSEHOLD GOODS FOR KUTA. AT TIME OF APPOINTMENT TO MANILA KUTA WAS NOT AWARE OF THE AID HOUSING AND WAS NOT SUBJECT TO THE WEIGHT LIMITATION OF MOVEMENT OF HOUSEHOLD EFFECTS. HE WAS THEREFORE ENTITLED TO SHIP 10,000 LBS PLUS 500 ADDITIONAL FOR EACH DEPENDENT OVER TWO IN NUMBER TO AND FROM MANILA AT GOVT EXPENSE. UPON OFFICIAL NOTIFICATION OF CHANGING EMPLOYEE'S DUTY STATION AS CONTEMPLATED IN THE INQUIRY MANILA SHOULD BE REQUESTED TO MAKE ARRANGEMENTS TO SHIP THE KUTA HOUSEHOLD EFFECTS TO NEW DUTY STATION AT GOVT EXPENSE."

ON AUGUST 9, 1972, MRS. KUTA ARRIVED IN LOS ANGELES.

IT IS CLEAR FROM THE RECORD THAT MR. KUTA'S HOUSEHOLD EFFECTS WERE SHIPPED DIRECTLY FROM MANILA TO WASHINGTON. A TOTAL OF 9,335 POUNDS WAS SHIPPED. APPARENTLY MR. KUTA'S HOUSEHOLD EFFECTS THAT HAD BEEN IN STORAGE IN CLEVELAND WERE ALSO SHIPPED DIRECTLY TO WASHINGTON, BUT NEITHER THE WEIGHT NOR ANY OTHER DETAILS CONCERNING THE SHIPMENT ARE IN THE RECORD. ON NOVEMBER 11, 1972, A BILL FOR COLLECTION IN THE AMOUNT OF $1,858.38 WAS ISSUED AGAINST MR. KUTA. THE AMOUNT WAS COMPUTED BY TAKING THE ORIGINALLY AUTHORIZED SHIPMENT WEIGHT OF 4,972 POUNDS AND ADDING TWO THIRDS OF THE UNUSED UNACCOMPANIED BAGGAGE ALLOWANCE FOR A TOTAL AUTHORIZED SHIPPING WEIGHT OF 5,024 POUNDS, BEFORE SUBTRACTING FROM THE ACTUAL SHIPPED WEIGHT OF 9,335 POUNDS. THEN ALL ADJUSTMENTS FOR STORAGE, WAREHOUSE HANDLING, DELIVERY CHARGES, BUNKER SURCHARGE, AND BALANCE DUE MR. KUTA ON HIS TRAVEL VOUCHER, WERE MADE, TO REACH THE FINAL FIGURE. BY LETTER OF DECEMBER 4, 1972, THE VA, FIELD DIRECTOR, AREA 4 DIRECTED THAT THE BILL FOR COLLECTION BE CANCELLED. HOWEVER, THE CHIEF, FINANCE & DATA PROCESSING DIVISION OBJECTED, AND THE MATTER WAS SUBMITTED TO THIS OFFICE FOR A DECISION, RESULTING IN THE SETTLEMENT OF SEPTEMBER 3, 1973, SUSTAINING THE VALIDITY OF THE BILL FOR COLLECTION.

UNDER THE PROVISIONS OF 38 U.S.C. SEC. 235, THE VA ADMINISTRATOR MAY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR HIS DESIGNEE, GRANT VA EMPLOYEES, IN THE VA OFFICES IN THE PHILIPPINES AND EUROPE, VARIOUS LISTED BENEFITS NORMALLY ALLOWED TO FOREIGN SERVICE PERSONNEL. INCLUDED IN THESE BENEFITS ARE THOSE RELATING TO THE SHIPMENT OF HOUSEHOLD EFFECTS. BY VA MANUAL MP-1, PART II, PARAGRAPH 215 (NOW DESIGNATED MP-1, PART II, CHAPTER 2, PARAGRAPH 15), THE VA ADMINISTRATOR ADOPTED THE "UNIFORM STATE/AID/USIA FOREIGN SERVICE REGULATIONS, WHICH ARE CONTAINED IN VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL (6 FAM), AS THE GOVERNING REGULATIONS FOR OVERSEAS TRAVEL FOR VA EMPLOYEES. THESE REGULATIONS ARE PRESCRIBED BY THE SECRETARY OF STATE, AND ARE STATUTORY REGULATIONS THAT MAY NOT BE WAIVED IN INDIVIDUAL CASES. 49 COMP. GEN. 145 (1969).

AT THE TIME OF MR. KUTA'S TRANSFER TO MANILA, 6 FAM 162.2 CONTAINED THE AUTHORIZED SHIPPING WEIGHT ALLOWANCES FOR HOUSEHOLD GOODS, AND, FOR EMPLOYEES OF MR. KUTA'S GRADE, THE LIMITS WERE: COMBINED SHIPMENT AND STORAGE, 12,000 POUNDS AND LIMITED SHIPMENT 3,600 POUNDS. THAT PARAGRAPH ALSO PROVIDES THAT:

"THE AMOUNTS UNDER THE HEADING 'COMBINED SHIPPING AND STORAGE', OR A LESSER AMOUNT MAY BE AUTHORIZED ***."

THE RECORD IS NOT ENTIRELY CLEAR AS TO THE EXACT STATUS OF THE VA-AID HOUSING AGREEMENT AT THE TIME MR. KUTA WAS TRANSFERRED TO MANILA. HOWEVER, AS WE NOTED ABOVE, MR. KUTA DID NOT BEGIN TO OCCUPY GOVERNMENT QUARTERS UNTIL MARCH 1969. BECAUSE OF THE UNCERTAINTIES REGARDING HOUSING, AND THE ABOVE AUTHORITY, IT WAS PERMISSABLE FOR THE VA TO AUTHORIZE AN ORIGINAL SHIPMENT OF 6,000 POUNDS EVEN THOUGH ONLY 3,600 POUNDS WOULD HAVE BEEN AUTHORIZED WHEN QUARTERS ACTUALLY BECAME AVAILABLE.

AT THE TIME OF MR. KUTA'S RETURN, 6 FAM 162.2 ALSO PROVIDED THAT:

"ON RETURN TO THE UNITED STATES, AN EMPLOYEE OCCUPYING QUARTERS HAVING GOVERNMENT-OWNED FURNISHINGS WILL BE AUTHORIZED THE APPROPRIATE LIMITED SHIPMENT ALLOWANCE SPECIFIED BELOW TOGETHER WITH THE NET WEIGHT OF EFFECTS IN STORAGE AT GOVERNMENT EXPENSE."

AT THAT TIME THE LIMITED SHIPMENT FOR MR. KUTA'S GRADE HAD BEEN RAISED TO 4,200 POUNDS, STILL BELOW THE WEIGHT THAT HE ACTUALLY SHIPPED TO MANILA. BY INITIALLY AUTHORIZING A SHIPMENT OF 4,972 POUNDS, THE VA WAS ACTING IN ACCORD WITH THE SPIRIT OF THE REGULATIONS. IN THAT CONNECTION, 6 FAM 462.6-2 AUTHORIZES AN ADDED SHIPMENT ALLOWANCE TO AN EMPLOYEE'S RESIDENCE FROM OVERSEAS, WHEN THE EMPLOYEE'S CLASS OR FAMILY SIZE CHANGES SO THAT HIS SHIPPING ALLOWANCE WOULD BE DECREASED. SIMPLY PUT, THE REGULATIONS ALLOW AN EMPLOYEE TO SHIP AS MUCH BACK TO THE UNITED STATES AS HE TOOK OVERSEAS WITH HIM WHEN CONDITIONS CHANGE, DECREASING HIS SHIPPING ALLOWANCE. WE WILL NOT QUESTION THIS ACTION.

IN HIS REQUEST FOR RECONSIDERATION, MR. KUTA EMPHAZISES THE FACT THAT HE WAS TRANSFERRED FROM MANILA TO LOS ANGELES TO WASHINGTON. HE APPEARS TO BELIEVE THAT THESE SUCCESSIVE TRANSFERS SOMEHOW INCREASE HIS SHIPPING ALLOWANCE. IN 48 COMP. GEN. 651 (1969), WE HELD THAT, IN THE CASE OF SUCCESSIVE TRANSFERS WHERE THERE HAVE BEEN NO SHIPMENTS OF HOUSEHOLD GOODS TO THE INTERMEDIATE STATION, THE SHIPMENTS WILL BE TREATED AS IF THERE HAD BEEN A DIRECT TRANSFER FROM THE FIRST TO THE LAST DUTY STATIONS. SEE ALSO, 53 COMP. GEN. 123 (1973) AND B-169155, JUNE 30, 1970. THEREFORE, THE SUCCESSIVE TRANSFERS DO NOT INCREASE MR. KUTA'S SHIPPING ALLOWANCE.

MR. KUTA ALSO REFERS TO "THE DOCTRINE OF ADMINISTRATIVE ERROR," AND SEEMS TO CONTEND THAT SINCE HE RELIED ON THE ADVICE GIVEN HIM BY VA OFFICIALS, HE SHOULD NOT BE RESPONSIBLE FOR ANY ERRORS THEY MAY HAVE MADE. THIS IS DIRECTLY CONTRARY TO THE EXISTING LAW. WHILE IT IS REGRETTABLE THAT MR. KUTA WAS INCORRECTLY ADVISED AND ERRONEOUS INSTRUCTIONS WERE GIVEN BY VARIOUS VA OFFICIALS AND EMPLOYEES, IT IS WELL SETTLED THAT WHEN A GOVERNMENT EMPLOYEE ACTS OUTSIDE THE SCOPE OF THE AUTHORITY ACTUALLY HELD BY HIM, THE UNITED STATES IS NOT ESTOPPED TO DENY HIS UNAUTHORIZED OR MISLEADING REPRESENTATIONS, COMMITMENTS, OR ACTS, BECAUSE THOSE WHO DEAL WITH A GOVERNMENT AGENT, OFFICER, OR OR EMPLOYEE ARE DEEMED TO HAVE NOTICE OF THE LIMITATIONS ON HIS AUTHORITY, AND ALSO BECAUSE EVEN THOUGH A PRIVATE INDIVIDUAL MIGHT BE ESTOPPED, THE PUBLIC SHOULD NOT SUFFER FOR THE ACT OR REPRESENTATION OF A SINGLE GOVERNMENT AGENT. UTAH POWER & LIGHT CO. V UNITED STATED, 243 U.S. 389 (1917); BIANCO V. UNITED STATES, 171 CT. CL. 719 (1965); BORNSTEIN V. UNITED STATES, 170 CT. CL. 576, 345 F. 2D 558 (1965); POTTER V. UNITED STATES, 167 CT. CL. 28 (1964), CERT. DENIED, 382 U.S. 817 (1965); VOGT BROS. MFG. CO. V. UNITED STATES, 160 CT. CL. 687 (1963); BYRNE ORGANIZATION, INC. V. UNITED STATES, 152 CT. CL. 578, 287 F 2D 582 (1961); NATIONAL ELECTRONICS LAB., INC. V. UNITED STATES 148 CT. CL. 308 (1960). THE GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ADVICE GIVEN BY ONE OF ITS OFFICIALS IF THAT ADVICE IS ERRONEOUS. VON KALINOWASKI V. UNITED STATES, 151 CT. CL. 172 (1960), CERT DENIED, 368 U.S. 829 (1971). WHERE A GOVERNMENT OFFICIAL APPROVES AND PROMISES REIMBURSEMENT BEYOND THAT ALLOWED BY APPLICABLE LAW, ANY PAYMENTS MADE UNDER SUCH UNAUTHORIZED ACTIONS ARE RECOVERABLE BY THE GOVERNMENT. PENN HOROLOGICAL INST. V. UNITED STATES, 146 CT. CL. 540 (1959).

ACCORDINGLY, BASED UPON THE RECORD BEFORE US, THE SETTLEMENT ISSUED BY THE TRANSPORTATION AND CLAIMS DIVISION IS AFFIRMED.