B-182383, MAY 27, 1975

B-182383: May 27, 1975

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INDIVIDUAL APPOINTED TO MANPOWER SHORTAGE POSITION IS REQUIRED TO REFUND TEMPORARY STORAGE EXPENSES INCURRED INCIDENT TO HIS APPOINTMENT. EVEN THOUGH SUCH EXPENSES WERE NECESSITATED BY FACT THAT GOVERNMENT QUARTERS WERE NOT PROVIDED AS SOON AS PROMISED BY THE AGENCY. SINCE SUCH EXPENSES WERE COVERED UNDER 5 U.S.C. 5723 AND EMPLOYEE DID NOT REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS APPOINTMENT AS REQUIRED BY HIS SERVICE AGREEMENT. MALHOTRA - RECONSIDERATION OF ENTITLEMENT FOR TEMPORARY STORAGE EXPENSES: THIS ACTION IS A RECONSIDERATION OF THE DETERMINATION BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED JUNE 20. HIS HOUSEHOLD GOODS WERE SHIPPED AND TEMPORARILY STORED BY A GOVERNMENT BILL OF LADING AT A COST TO THE GOVERNMENT OF $1.

B-182383, MAY 27, 1975

INDIVIDUAL APPOINTED TO MANPOWER SHORTAGE POSITION IS REQUIRED TO REFUND TEMPORARY STORAGE EXPENSES INCURRED INCIDENT TO HIS APPOINTMENT, EVEN THOUGH SUCH EXPENSES WERE NECESSITATED BY FACT THAT GOVERNMENT QUARTERS WERE NOT PROVIDED AS SOON AS PROMISED BY THE AGENCY, SINCE SUCH EXPENSES WERE COVERED UNDER 5 U.S.C. 5723 AND EMPLOYEE DID NOT REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS APPOINTMENT AS REQUIRED BY HIS SERVICE AGREEMENT.

DR. J.C. MALHOTRA - RECONSIDERATION OF ENTITLEMENT FOR TEMPORARY STORAGE EXPENSES:

THIS ACTION IS A RECONSIDERATION OF THE DETERMINATION BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED JUNE 20, 1974, HOLDING DR. J.C. MALHOTRA, M.D., INDEBTED TO THE UNITED STATES FOR THE COST OF TEMPORARILY STORING HIS HOUSEHOLD GOODS INCIDENT TO HIS APPOINTMENT TO A MANPOWER SHORTAGE POSITION WITH THE VETERANS ADMINISTRATION AS A RESULT OF VIOLATION OF A SERVICE AGREEMENT.

INCIDENT TO DR. MALHOTRA'S APPOINTMENT TO A MANPOWER SHORTAGE POSITION AT THE VETERANS ADMINISTRATION HOSPITAL, HUNTINGTON, WEST VIRGINIA, ON AUGUST 26, 1973, HIS HOUSEHOLD GOODS WERE SHIPPED AND TEMPORARILY STORED BY A GOVERNMENT BILL OF LADING AT A COST TO THE GOVERNMENT OF $1,105.93. ALTHOUGH DR. MALHOTRA SIGNED AN AGREEMENT ON AUGUST 31, 1973, TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER THE EFFECTIVE DATE OF HIS APPOINTMENT, HE RESIGNED FROM HIS POSITION ON NOVEMBER 15, 1973, IN VIOLATION OF HIS SERVICE AGREEMENT. ACCORDINGLY, THE VETERANS ADMINISTRATION RECOVERED THE COSTS OF TRANSPORTING AND TEMPORARILY STORING DR. MALHOTRA'S HOUSEHOLD GOODS BY DEDUCTIONS FROM COMPENSATION DUE HIM.

ALTHOUGH DR. MALHOTRA DOES NOT OBJECT TO PAYING FOR THE COST OF TRANSPORTING HIS HOUSEHOLD GOODS, HE DOES NOT BELIEVE THAT HE SHOULD BE REQUIRED TO PAY FOR THE COST OF TEMPORARILY STORING HIS HOUSEHOLD GOODS. AT THE TIME OF DR. MALHOTRA'S APPOINTMENT, HE WAS ADVISED THAT HE WOULD BE ASSIGNED GOVERNMENT QUARTERS WHICH WOULD BE AVAILABLE SOON AFTER HIS APPOINTMENT. HOWEVER, THESE QUARTERS DID NOT BECOME AVAILABLE FOR ALMOST 2 MONTHS WHICH NECESSITATED THE TEMPORARY STORAGE OF DR. MALHOTRA'S HOUSEHOLD GOODS FOR THIS PERIOD. SINCE THE STORAGE OF HIS HOUSEHOLD GOODS WOULD NOT HAVE BEEN NECESSARY IF GOVERNMENT QUARTERS HAD BEEN AVAILABLE AT THE TIME ANTICIPATED BY THE VETERANS ADMINISTRATION, DR. MALHOTRA CONTENDS THAT THE GOVERNMENT IS RESPONSIBLE FOR THE NEED TO STORE HIS HOUSEHOLD GOODS AND THAT HE SHOULD NOT BE REQUIRED TO PAY THIS EXPENSE.

ALTHOUGH IT IS REGRETTABLE THAT THE TEMPORARY STORAGE WAS A RESULT OF THE DELAY IN PROVIDING GOVERNMENT QUARTERS AS ANTICIPATED, THIS FACT DOES NOT PROVIDE AUTHORITY FOR PAYMENT OF THE COST OF TEMPORARILY STORING AN EMPLOYEE'S HOUSEHOLD GOODS. THE AUTHORITY TO PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF A NEW APPOINTEE TO A MANPOWER SHORTAGE POSITION IS PROVIDED BY 5 U.S.C. 5723 (1970). FEDERAL TRAVEL REGULATIONS (FPMR 101 -7), PARA. 2-8.2C (MAY 1973) ALLOWS, INCIDENT TO THE TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD GOODS, TEMPORARY STORAGE FOR A PERIOD NOT TO EXCEED 60 DAYS. HOWEVER, 5 U.S.C. 5723(B) (1970) PROVIDES THAT TRAVEL AND TRANSPORTATION EXPENSES ARE PAYABLE ONLY AFTER THE INDIVIDUAL AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS APPOINTMENT AND THAT ANY MONEY PAID IS RECOVERABLE FROM THE INDIVIDUAL IF HE VIOLATES THE AGREEMENT. DR. MALHOTRA APPARENTLY SIGNED THE REQUIRED AGREEMENT AND WAS AUTHORIZED TO TRANSPORT HIS HOUSEHOLD GOODS AND 60 DAYS TEMPORARY STORAGE. SINCE DR. MALHOTRA VIOLATED HIS SERVICE AGREEMENT BY NOT REMAINING IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS APPOINTMENT, HE IS REQUIRED TO REFUND ALL AMOUNTS PAID BY THE GOVERNMENT FOR TRAVEL AND TRANSPORTATION EXPENSES UNDER 5 U.S.C. 5723 (1970). SINCE THE TOTAL EXPENSES, INCLUDING STORAGE CHARGES, WERE A VALID EXPENSE OF THE GOVERNMENT AND WOULD NOT HAVE BEEN SUBJECT TO REFUND BUT FOR DR. MALHOTRA'S BREACH OF HIS SERVICE AGREEMENT, HE IS INDEBTED FOR SUCH EXPENSES.

DR. MALHOTRA HAS ALSO REQUESTED INFORMATION CONCERNING A FURTHER APPEAL OF HIS CLAIM. THE DECISIONS OF THIS OFFICE ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. HOWEVER, THE UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT. SEE 28 U.S.C. 1346 AND 1491.

IN VIEW OF THE ABOVE, THE DETERMINATION OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED JUNE 20, 1974, IS SUSTAINED.