B-182162, JAN 29, 1975, 54 COMP GEN 638

B-182162: Jan 29, 1975

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WAS AUTHORIZED AND PAID FOR TRANSPORTATION OF HOUSEHOLD GOODS UNDER COMMUTED RATE SYSTEM CLAIMS REIMBURSEMENT FOR ACTUAL EXPENSES IN EXCESS OF SUCH REIMBURSEMENT SINCE HE WAS REQUIRED TO HAVE GOODS MOVED AT HIGHER RATES THAN THOSE OF ANOTHER CARRIER WITH LOWER RATES BECAUSE OF A TEAMSTERS' STRIKE. EMPLOYEE IS NOT ENTITLED TO SUCH REIMBURSEMENT SINCE RIGHTS AND LIABILITIES REGARDING TRAVEL ORDERS VEST AT TIME OF TRANSPORTATION OF GOODS AND MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE BENEFITS IN ABSENCE OF EVIDENCE OF ADMINISTRATIVE ERROR IN ORDERS. WHO WAS TRANSFERRED FROM CALIFORNIA TO FLORIDA EFFECTIVE JULY 9. WHO WAS UNABLE TO MOVE INTO NEWLY ACQUIRED HOME UNTIL SEPTEMBER 11.

B-182162, JAN 29, 1975, 54 COMP GEN 638

TRANSPORTATION - HOUSEHOLD EFFECTS - ACTUAL EXPENSES - IN LIEU OF COMMUTED RATE - TEAMSTERS' STRIKE EMPLOYEE WHO, INCIDENT TO TRANSFER OF STATION, WAS AUTHORIZED AND PAID FOR TRANSPORTATION OF HOUSEHOLD GOODS UNDER COMMUTED RATE SYSTEM CLAIMS REIMBURSEMENT FOR ACTUAL EXPENSES IN EXCESS OF SUCH REIMBURSEMENT SINCE HE WAS REQUIRED TO HAVE GOODS MOVED AT HIGHER RATES THAN THOSE OF ANOTHER CARRIER WITH LOWER RATES BECAUSE OF A TEAMSTERS' STRIKE. EMPLOYEE IS NOT ENTITLED TO SUCH REIMBURSEMENT SINCE RIGHTS AND LIABILITIES REGARDING TRAVEL ORDERS VEST AT TIME OF TRANSPORTATION OF GOODS AND MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE BENEFITS IN ABSENCE OF EVIDENCE OF ADMINISTRATIVE ERROR IN ORDERS. OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - TEMPORARY QUARTERS - TIME LIMITATION EMPLOYEE, WHO WAS TRANSFERRED FROM CALIFORNIA TO FLORIDA EFFECTIVE JULY 9, 1973, AND WHO WAS UNABLE TO MOVE INTO NEWLY ACQUIRED HOME UNTIL SEPTEMBER 11, 1973, BECAUSE OF DELAY IN MORTGAGE CLOSING, MAY NOT BE REIMBURSED FOR TEMPORARY LODGING EXPENSES BEYOND INITIAL 30 DAYS SINCE FEDERAL TRAVEL REGULATIONS PARAGRAPH 2-5.2A (1973) PROVIDES FOR MAXIMUM 30 -DAY TIME LIMITATION WHEN EMPLOYEE IS TRANSFERRED BETWEEN AREAS IN CONTINENTAL UNITED STATES AND, BEING A STATUTORY REGULATION, ITS PROVISIONS MAY NOT BE WAIVED.

IN THE MATTER OF RELOCATION EXPENSES, JANUARY 29, 1975:

AN ADVANCE DECISION HAS BEEN REQUESTED FROM AN AUTHORIZED CERTIFYING OFFICER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CONCERNING THE REIMBURSEMENT OF CERTAIN RELOCATION EXPENSES INCURRED BY MR. JOHN I. OTERO, INCIDENT TO A PERMANENT CHANGE OF STATION FROM LOS ANGELES, CALIFORNIA, TO MIAMI, FLORIDA. HE ASKS FIRST WHETHER MR. OTERO MAY BE PAID AN AMOUNT OF $472.87 FOR ACTUAL COSTS OF MOVEMENT OF HOUSEHOLD GOODS IN EXCESS OF THE REIMBURSEMENT UNDER THE COMMUTED RATE; AND SECOND, WHETHER HE MAY BE ALLOWED TEMPORARY QUARTERS ALLOWANCE FOR A PERIOD IN EXCESS OF 30 DAYS BECAUSE OF SPECIAL JUSTIFICATIONS IN EACH CASE.

EFFECTIVE JULY 9, 1973, MR. OTERO WAS TRANSFERRED FROM LOS ANGELES, CALIFORNIA, TO MIAMI, FLORIDA. IN MOVING HIS HOUSEHOLD GOODS HE INCURRED ACTUAL EXPENSES OF $472.87 IN EXCESS OF THE AMOUNT REIMBURSED HIM UNDER THE COMMUTED RATE SYSTEM FOR WHICH HE IS SEEKING REIMBURSEMENT. HE STATES THAT HE HAD TO SHIP HIS GOODS BY A LOCAL EXPRESS AND TRANSFER COMPANY FROM HIS OLD HOME TO HIS NEW DUTY STATION BECAUSE THERE WAS A TEAMSTER'S STRIKE IN CALIFORNIA AT THE TIME HE WAS REQUIRED TO SHIP HIS GOODS, AND HE WAS UNABLE TO SECURE THE SERVICES OF AN INTERSTATE MOVING COMPANY AT A LOWER COST. THE ADMINISTRATIVE AGENCY IS WILLING TO AMEND THE EMPLOYEE'S PERMANENT CHANGE OF STATION TRAVEL AUTHORIZATION TO PROVIDE FOR ACTUAL EXPENSES OF TRANSPORTATION BY A LOCAL CARTAGE CARRIER IN ORDER TO PERMIT PAYMENT OF THE HIGHER TRANSPORTATION CHARGES IF SUCH AN AMENDMENT IS PERMISSIBLE.

IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE TRAVELER'S ORDERS AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS AND BENEFITS WHICH HAVE BEEN FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS. EXCEPTION MAY BE MADE ONLY WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORDER AND ALL FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. SEE 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944); 47 ID. 127 (1967); AND B 175433, APRIL 27, 1972.

THE COMMUTED RATE SYSTEM WAS AUTHORIZED BY 5 U.S.C. 5724(C) (1970) AND WAS IMPLEMENTED, AT THE TIME OF MR. OTERO'S TRANSFER, BY THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-8.3A (MAY 1973). NEITHER THE STATUTE NOR THE REGULATION PROVIDES FOR REIMBURSEMENT BEYOND THE RATE CONTAINED IN THE COMMUTED RATE SCHEDULE. IN THE INSTANT CASE, IT WAS INTENDED AND DETERMINED AT THE TIME OF TRANSFER THAT MR. OTERO WOULD BE AUTHORIZED REIMBURSEMENT OF TRANSPORTATION AND STORAGE EXPENSES ON THE COMMUTED RATE SYSTEM. SINCE THIS DETERMINATION WAS PROPERLY MADE UNDER THE APPLICABLE LAW AND REGULATION, AND SINCE NO ERROR OR OMISSION IS ALLEGED OR DEMONSTRATED, THE ADMINISTRATIVE AGENCY MAY NOT AMEND THE EMPLOYEES' PERMANENT CHANGE OF STATION TRAVEL AUTHORIZATION RETROACTIVELY TO PERMIT PAYMENT OF THE HIGHER TRANSPORTATION AND STORAGE CHARGES. ACCORDINGLY, MR. OTERO IS NOT ENTITLED TO ADDITIONAL REIMBURSEMENT FOR THE ACTUAL CARTAGE CHARGES INCURRED.

MR. OTERO ALSO SEEKS ADDITIONAL REIMBURSEMENT IN THE AMOUNT OF $291.20 FOR EXPENSES INCURRED INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS FROM AUGUST 8 TO SEPTEMBER 11, 1973, MINUS A VACATION PERIOD FROM AUGUST 11 TO 25. HE STATES THAT HE HAD PURCHASED A PERMANENT RESIDENCE WITHIN A 30- DAY PERIOD FOLLOWING HIS TRANSFER, BUT HE WAS UNABLE TO OCCUPY HIS NEW RESIDENCE UNTIL THE MORTGAGE CLOSING DAY OF SEPTEMBER 6, 1973, AND WAS THEREFORE REQUIRED TO OCCUPY TEMPORARY QUARTERS FOR THE 65-DAY PERIOD OF JULY 9 THROUGH SEPTEMBER 11, MINUS THE ABOVE-MENTIONED VACATION. MR. OTERO WAS REIMBURSED FOR HIS SUBSISTENCE EXPENSES FOR THE FIRST 30 DAYS ONLY THEREBY RECEIVING NO REIMBURSEMENT FOR THE PERIOD OF AUGUST 8 TO SEPTEMBER 11, MINUS THE VACATION.

REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS IN CONNECTION WITH A TRANSFER IS GOVERNED BY 5 U.S.C. 5724AA)(3) (1970) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE *** APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724(A) OF THIS TITLE:

(3) SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY FOR A PERIOD OF 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS WHEN THE NEW OFFICIAL STATION IS LOCATED WITHIN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. THE PERIOD OF RESIDENCE IN TEMPORARY QUARTERS MAY BE EXTENDED FOR AN ADDITIONAL 30 DAYS WHEN THE EMPLOYEE MOVES TO OR FROM HAWAII, ALASKA, THE TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE ***

THE STATUTORY PROVISION IS IMPLEMENTED BY FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARAS. 2-5.2A AND B WHICH SET FORTH THE TIME LIMITS IN THE STATUTE. THE LAW AND ITS IMPLEMENTING REGULATION ARE CLEAR AND UNAMBIGUOUS. REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE IS LIMITED TO A PERIOD OF 30 DAYS BY FTR PARA. 2-5.2A (MAY 1973). UNDER THE PROVISIONS OF FTR PARA. 2-5.2B (MAY 1973), AN EXTENTION OF TIME, NOT TO EXCEED 30 DAYS, MAY BE MADE IF THE EMPLOYEE IS TRANSFERRED EITHER TO OR FROM HAWAII, ALASKA, THE TERRITORIES AND POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. SINCE MR. OTERO WAS NOT TRANSFERRED TO OR FROM ANY OF THE AREAS CITED IN PARA. 2-5.2B, PARA. 2-5.2A CONSTITUTES THE BASIS OF HIS CLAIM AND CONTAINS THE TIME LIMITATION PERTAINING TO REIMBURSEMENT. BEING A STATUTORY REGULATION HAVING THE FORCE AND EFFECT OF LAW, IT MAY NOT BE WAIVED, MODIFIED OR EXTENDED, REGARDLESS OF EXTENUATING CIRCUMSTANCES. SEE B-176078, JULY 14, 1972. THEREFORE, MR. OTERO MAY NOT BE AUTHORIZED ADDITIONAL SUBSISTENCE EXPENSES BEYOND THE INITIAL 30 DAYS, NOTWITHSTANDING HIS INABILITY TO OCCUPY HIS NEW HOME "UNTIL MORTGAGE CLOSING DAY."

IN VIEW OF THE FOREGOING, THE RECLAIM VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.