B-180603, APR 18, 1974

B-180603: Apr 18, 1974

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WAS AUTHORIZED TO ATTEND A TRAINING COURSE AT BOSTON UNIVERSITY. WAS ADVISED HE WOULD BE ENTITLED TO PER DIEM AT HEADQUARTERS AND TRAVEL EXPENSES ON WEEKENDS TO AND FROM HIS RESIDENCE AT FAIRFIELD BECAUSE THE TRAINING WAS NOT IN HIS IMMEDIATE HEADQUARTERS BUILDING. CLAIM FOR TRAVEL EXPENSES AND PER DIEM AT HIS HEADQUARTERS WAS PROHIBITED BY APPLICABLE STATUTE AND DECISIONS OF OUR OFFICE AND IN ABSENCE OF STATUTE. GOVERNMENT IS NOT RESPONSIBLE FOR NEGLIGENT ACTS OF ITS AGENTS. WAS DETAILED FOR TRAINING AT THE BOSTON UNIVERSITY IN BOSTON. THE PLACE FROM WHICH HE WAS ORIGINALLY HIRED BY THE IRS ON AUGUST 20. BELOVITCH CLAIMED AND WAS PAID $377.20 FOR THE PERIOD OF OCTOBER 15-31. BELOVITCH WAS ERRONEOUSLY PAID PER DIEM WHILE IN THE VICINITY OF HIS PERMANENT DUTY STATION AND THAT HE WAS ALSO ERRONEOUSLY PAID FOR TRANSPORTATION BETWEEN BOSTON UNIVERSITY AND FAIRFIELD.

B-180603, APR 18, 1974

EMPLOYEE WITH HEADQUARTERS AT BOSTON, MASSACHUSETTS, WHO MAINTAINS A RESIDENCE AT FAIRFIELD, CONNECTICUT, WAS AUTHORIZED TO ATTEND A TRAINING COURSE AT BOSTON UNIVERSITY, WITHIN THE BOSTON METROPOLITAN AREA, AND WAS ADVISED HE WOULD BE ENTITLED TO PER DIEM AT HEADQUARTERS AND TRAVEL EXPENSES ON WEEKENDS TO AND FROM HIS RESIDENCE AT FAIRFIELD BECAUSE THE TRAINING WAS NOT IN HIS IMMEDIATE HEADQUARTERS BUILDING. CLAIM FOR TRAVEL EXPENSES AND PER DIEM AT HIS HEADQUARTERS WAS PROHIBITED BY APPLICABLE STATUTE AND DECISIONS OF OUR OFFICE AND IN ABSENCE OF STATUTE, GOVERNMENT IS NOT RESPONSIBLE FOR NEGLIGENT ACTS OF ITS AGENTS.

TO MR. LEO E. BELOVITCH:

THIS CONCERNS THE CLAIM OF MR. LEO E. BELOVITCH, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), DEPARTMENT OF THE TREASURY, FOR PER DIEM IN LIEU OF SUBSISTENCE AT HIS PERMANENT DUTY STATION.

MR. BELOVITCH, AN IRS EMPLOYEE WITH A PERMANENT DUTY STATION AT BOSTON, MASSACHUSETTS, WAS DETAILED FOR TRAINING AT THE BOSTON UNIVERSITY IN BOSTON. AT THE TIME HE STILL MAINTAINED HIS RESIDENCE AT FAIRFIELD, CONNECTICUT, THE PLACE FROM WHICH HE WAS ORIGINALLY HIRED BY THE IRS ON AUGUST 20, 1973. MR. BELOVITCH CLAIMED AND WAS PAID $377.20 FOR THE PERIOD OF OCTOBER 15-31, 1973, REPRESENTING $272.75 PER DIEM, $93.50 MILEAGE FOR WEEKEND TRAVEL BETWEEN HIS HEADQUARTERS AND RESIDENCE AT FAIRFIELD, CONNECTICUT, AND $10.95 TOLLS.

A POST AUDIT OF THE TRAVEL VOUCHER BY THE FISCAL MANAGEMENT BRANCH OF THE IRS NORTH ATLANTIC REGION DISCLOSED THAT MR. BELOVITCH WAS ERRONEOUSLY PAID PER DIEM WHILE IN THE VICINITY OF HIS PERMANENT DUTY STATION AND THAT HE WAS ALSO ERRONEOUSLY PAID FOR TRANSPORTATION BETWEEN BOSTON UNIVERSITY AND FAIRFIELD, CONNECTICUT, WHICH WAS NOT THE RESIDENCE FROM WHICH HE COMMUTED DAILY TO HIS PERMANENT DUTY STATION. AS A RESULT OF THE POST AUDIT MR. BELOVITCH WAS REQUESTED TO REPAY A TOTAL OF $377.20 PAID TO HIM FOR THE PERIOD OF OCTOBER 15-31, 1973.

MR. BELOVITCH CONTENDS THAT HE IS ENTITLED TO THE PER DIEM AND TRANSPORTATION REIMBURSEMENT PAID TO HIM SINCE HE AND OTHERS WERE INSTRUCTED BY THE BOSTON DISTRICT TRAINING BRANCH EMPLOYEE DEVELOPMENT OFFICER DURING AN ORIENTATION HELD BEFORE THE TRAINING PERIOD BEGAN, THAT HE WOULD BE ENTITLED TO PER DIEM AND TRANSPORTATION SINCE HE DID NOT RESIDE IN THE BOSTON AREA. THE EMPLOYEE DEVELOPMENT OFFICER CORROBORATED MR. BELOVITCH'S STATEMENT AND ADMITTED THAT HE NOW REALIZES THAT HIS INFORMATION TO THE TRAINEES WAS ERRONEOUS AND THAT PER DIEM IN QUESTION MAY NOT LEGALLY BE REIMBURSED SINCE THE TRAINING WAS CONDUCTED IN THE VICINITY OF THE PERMANENT DUTY STATION.

CONCERNING REIMBURSEMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY AN EMPLOYEE ASSIGNED TO TRAINING UNDER THE EMPLOYEES TRAINING ACT, SECTION 4109 OF TITLE 5 OF THE U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118(A)(8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE AGENCY, MAY -

"(2) PAY, OR REIMBURSE THE EMPLOYEE FOR, ALL OR A PART OF THE NECESSARY EXPENSES OF THE TRAINING, WITHOUT REGARD TO SECTION 529 OF TITLE 31, INCLUDING AMONG THE EXPENSES THE NECESSARY COSTS OF -

"(A) TRAVEL AND PER DIEM INSTEAD OF SUBSISTENCE UNDER SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE OR, IN THE CASE OF COMMISSIONED OFFICERS OF THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, SECTIONS 404 AND 405 OF TITLE 37, AND THE JOINT TRAVEL REGULATIONS FOR THE UNIFORMED SERVICES

SUBCHAPTER I OF CHAPTER 57 (5 U.S.C. 5702(A)) PROVIDES THAT AN EMPLOYEE, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, IS ENTITLED TO A PER DIEM ALLOWANCE PRESCRIBED BY THE AGENCY CONCERNED. AS STATED ABOVE BOSTON WAS MR. BELOVITCH'S PERMANENT DUTY STATION AND DURING THE PERIOD IN QUESTION HE WAS NOT TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS PERMANENT DUTY STATION. WE HAVE HELD THAT THE SUBSISTENCE OF CIVILIAN EMPLOYEES AT THEIR OFFICIAL DUTY STATION IS PERSONAL TO SUCH EMPLOYEES AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY MAY NOT BE PROVIDED AT GOVERNMENT EXPENSE. SEE SECTION 1-7.6A OF FPMR 101-7, MAY 1, 1973; 42 COMP. GEN. 149 (1962).

ALTHOUGH AN EMPLOYEE MAY BE PAID MILEAGE FOR USE OF HIS PRIVATELY OWNED VEHICLE FOR TRAVEL TO A PLACE OF TEMPORARY DUTY WHICH IS LOCATED IN THE VICINITY OF HIS DUTY STATION WHEN TRAVELING FROM HIS RESIDENCE FROM WHICH HE COMMUTES DAILY, 37 COMP. GEN. 197 (1957), WE KNOW OF NO AUTHORITY FOR PAYMENT FOR MILEAGE FOR TRAVEL OF AN EMPLOYEE ASSIGNED TO SUCH TEMPORARY DUTY INCIDENT TO WEEKEND TRAVEL TO A RESIDENCE FROM WHICH HE DOES NOT COMMUTE ON A DAILY BASIS TO HIS OFFICIAL STATION.

IT IS REGRETTED THAT OFFICIALS OF THE IRS EXCEEDED THEIR AUTHORITY BY AUTHORIZING PER DIEM IN LIEU OF SUBSISTENCE AT THE EMPLOYEE'S HEADQUARTERS AS WELL AS TRAVELING EXPENSES ON WEEKENDS IN TRAVELING TO AND FROM HIS HOME ESTABLISHED OUTSIDE OF HIS HEADQUARTERS. THE RULE IS, HOWEVER, WELL ESTABLISHED THAT THE UNITED STATES CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. SEE FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947). IT IS CLEARLY ESTABLISHED THAT NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS GRANTED BY STATUTE AND REGULATION BY MISINFORMING PERSONS CONCERNING THEIR ENTITLEMENT.

ACCORDINGLY, THE CLAIM OF MR. BELOVITCH MAY NOT BE ALLOWED.