B-185532, SEP 21, 1976

B-185532: Sep 21, 1976

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INCIDENT TO SALE BY CIVILIAN EMPLOYEE OF HOUSE OCCUPIED BY EMPLOYEE AND FAMILY AT TIME TRANSFER WAS AUTHORIZED. EMPLOYEE IS NOT ENTITLED TO TEMPORARY QUARTERS ALLOWANCE SINCE HOUSE WAS NOT TEMPORARY QUARTERS BUT RATHER PERMANENT RESIDENCE. GOVERNMENT IS NOT BOUND BY UNAUTHORIZED REPRESENTATIONS OF AGENTS. 2. CIVILIAN EMPLOYEE MADE HOUSE-HUNTING TRIP INCIDENT TO PERMANENT CHANGE OF STATION EVEN THOUGH SUCH TRIP WAS NOT AUTHORIZED ON TRAVEL ORDER. PRIOR AUTHORIZATION WAS NOT REQUESTED BY EMPLOYEE WHO HAD ELECTED TO TAKE TEMPORARY QUARTERS ALLOWANCE UPON ERRONEOUS ADVICE OF AGENCY OFFICIAL. ERRORS WHICH MAY BE RETROACTIVELY CORRECTED ARE THOSE WHICH RELATE TO SPECIFIC INTENT OF AUTHORIZING OFFICIAL TO GRANT PRIOR AUTHORIZATION FOR TRIP.

B-185532, SEP 21, 1976

1. INCIDENT TO SALE BY CIVILIAN EMPLOYEE OF HOUSE OCCUPIED BY EMPLOYEE AND FAMILY AT TIME TRANSFER WAS AUTHORIZED, EMPLOYEE CONTRACTED TO RENT HOUSE UNTIL VACATED, 3 1/2 MONTHS LATER. EMPLOYEE IS NOT ENTITLED TO TEMPORARY QUARTERS ALLOWANCE SINCE HOUSE WAS NOT TEMPORARY QUARTERS BUT RATHER PERMANENT RESIDENCE. FURTHER, GOVERNMENT IS NOT BOUND BY UNAUTHORIZED REPRESENTATIONS OF AGENTS. 2. CIVILIAN EMPLOYEE MADE HOUSE-HUNTING TRIP INCIDENT TO PERMANENT CHANGE OF STATION EVEN THOUGH SUCH TRIP WAS NOT AUTHORIZED ON TRAVEL ORDER. PRIOR AUTHORIZATION WAS NOT REQUESTED BY EMPLOYEE WHO HAD ELECTED TO TAKE TEMPORARY QUARTERS ALLOWANCE UPON ERRONEOUS ADVICE OF AGENCY OFFICIAL. EMPLOYEE MAY NOT BE REIMBURSED EXPENSES OF TRIP BECAUSE IN HOUSE-HUNTING MATTERS, ERRORS WHICH MAY BE RETROACTIVELY CORRECTED ARE THOSE WHICH RELATE TO SPECIFIC INTENT OF AUTHORIZING OFFICIAL TO GRANT PRIOR AUTHORIZATION FOR TRIP.

WILLIAM D. STOCK - TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES:

THIS ACTION CONCERNS AN APPEAL FROM THE SETTLEMENT CERTIFICATE ISSUED ON AUGUST 15, 1972, BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION) WHICH DISALLOWED THE CLAIM OF MR. WILLIAM D. STOCK FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES INCIDENT TO THE CHANGE OF HIS PERMANENT DUTY STATION.

THE RECORD INDICATES THAT MR. STOCK, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), WAS AUTHORIZED A CHANGE OF DUTY STATION FROM OGDEN, UTAH, TO FRESNO, CALIFORNIA, PURSUANT TO A TRAVEL AUTHORIZATION DATED MAY 27, 1971. HE REPORTED TO HIS NEW DUTY STATION ON NOVEMBER 15, 1971. ON JULY 13, 1971, MR. STOCK CONTRACTED FOR THE SALE OF HIS RESIDENCE IN OGDEN, UTAH, WITH POSSESSION TO PASS TO THE BUYER ON AUGUST 1, 1971. AFTER THE DATE OF THE CONTRACT OF SALE, BUT PRIOR TO SETTLEMENT, MR. STOCK ASKED THE APPROPRIATE IRS OFFICIAL WHETHER HE COULD RENT HIS FORMER RESIDENCE FROM THE NEW OWNER AND STILL QUALIFY FOR THE TEMPORARY QUARTERS ALLOWANCE. ADVISED THAT SUCH AN ARRANGEMENT WOULD BE ACCEPTABLE, THE CLAIMANT CLOSED THE SALE TRANSACTION ON JULY 16, 1971, AND RENTED THE HOUSE FROM THE PURCHASER FROM AUGUST 1, 1971, TO NOVEMBER 15, 1971. HE THEREUPON SUBMITTED HIS VOUCHER CLAIMING $589.82 FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES FROM AUGUST 1, 1971, TO AUGUST 30, 1971. THIS CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON THE BASIS THAT THE CLAIMANT AND HIS WIFE WERE CONTINUING TO OCCUPY THEIR PERMANENT RESIDENCE, AS DISTINGUISHED FROM TEMPORARY QUARTERS.

IN HIS APPEAL, MR. STOCK CONTENDS THAT HE SHOULD NOT BE PREJUDICED FOR HIS RELIANCE ON THE ERRONEOUS ADVICE GIVEN TO HIM WITH RESPECT TO THE RENTAL OF HIS RESIDENCE AS "TEMPORARY QUARTERS." IN THIS REGARD, ALL GOVERNMENT OFFICERS AND EMPLOYEES ARE SPECIAL AGENTS OF LIMITED AUTHORITY AND ALL PERSONS DEALING WITH SUCH AGENTS AND EMPLOYEES ARE CHARGED WITH NOTICE THEREOF AND OF THE LIMITATIONS UPON THE AUTHORITY OF THE AGENTS WITH WHICH THEY DEAL. B-179635, MARCH 20, 1974. IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE GOVERNMENT IS NOT LIABLE FOR THE NEGLIGENT ACTS OR OMISSIONS OF ITS OFFICERS AND EMPLOYEES; NOR IS IT BOUND BY OR RESPONSIBLE FOR THEIR UNAUTHORIZED OR INCORRECT STATEMENTS. ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 22 COMP.GEN. 221 (1942); 44 ID. 337 (1964).

MR. STOCK FURTHER CONTESTS THE MERITS OF THE DENIAL OF HIS CLAIM, NOTING IN PARTICULAR THAT IN THE MATTER OF VIOLET L. CONLEY, Z-2508669, OUR CLAIMS DIVISION ISSUED A SETTLEMENT ON JULY 30, 1973, ALLOWING HER CLAIM FOR A TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES IN CIRCUMSTANCES BEARING AN APPARENT RESEMBLANCE TO THOSE PRESENT HERE. IT SHOULD BE OBSERVED AT THE OUTSET THAT A SETTLEMENT ISSUED BY THE CLAIMS DIVISION IS NOT DETERMINATIVE OF THE RIGHTS OF SIMILARLY SITUATED CLAIMANTS. 17 COMP.GEN. 445, 449 (1937); 18 COMP.GEN. 609, 611-12 (1939). ACCORDINGLY, MR. STOCK'S ENTITLEMENT TO A TEMPORARY QUARTERS ALLOWANCE MUST BE ESTABLISHED ON ITS OWN MERITS. THE REGULATIONS IN EFFECT AT THE TIME OF MR. STOCK'S TRANSFER DEFINED TEMPORARY QUARTERS AS, "LODGING OBTAINED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED." SECTION 2.5B(3), BUREAU OF BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969. ALL OF THE CRITERIA SET FORTH IN THE REGULATION MUST BE SATISFIED IN ORDER FOR LODGING TO QUALIFY AS TEMPORARY QUARTERS.

THE ISSUE IN CASES SUCH AS THIS, WHERE AN EMPLOYEE HAS CONTINUED TO OCCUPY HIS OR HER FORMER RESIDENCE AFTER SURRENDER OF A LEASEHOLD OR SALE, GENERALLY IS WHETHER THE EMPLOYEE MAY BE CONSIDERED TO HAVE VACATED THE QUARTERS WITHIN THE MEANING OF THE REGULATIONS SO AS TO QUALIFY FOR TEMPORARY QUARTERS. IN CONSIDERING SUCH CASES WE HAVE CONSISTENTLY GIVEN GREAT WEIGHT TO THE INTENT OF THE EMPLOYEE WITH RESPECT TO VACATING THE FORMER PERMANENT RESIDENCE. THE INQUIRY GENERALLY HAS BEEN WHETHER THE EMPLOYEE, IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES, HAS MANIFESTED BY OBJECTIVE EVIDENCE THE INTENT TO VACATE THE QUARTERS IN QUESTION. WHERE THERE HAS BEEN EVIDENCE OF ACTIONS TAKEN BY THE EMPLOYEE PRIOR TO AND/OR AFTER DEPARTURE FROM THE FORMER RESIDENCE WHICH SUPPORTS A DETERMINATION THAT THE EMPLOYEE IN GOOD FAITH INTENDED TO CEASE OCCUPANCY OF THAT RESIDENCE, WE GENERALLY HAVE AUTHORIZED PAYMENT OF A TEMPORARY QUARTERS ALLOWANCE. SEE DISCUSSION AT B-185696, MAY 28, 1976. CONVERSELY, WHERE THE EMPLOYEE HAS FAILED TO DEMONSTRATE BY OBJECTIVE EVIDENCE THE REQUISITE INTENT TO VACATE THE FORMER RESIDENCE, WE HAVE DENIED REIMBURSEMENT FOR TEMPORARY QUARTERS EXPENSES. SEE B-184579, JUNE 14, 1976; B-185696, SUPRA, AND CASES CITED THEREIN.

FOR THE REASONS SET FORTH BELOW, WE DO NOT BELIEVE THAT THE CLAIMANT HERE HAS DEMONATRATED THE REQUISITE INTENT TO VACATE HIS FORMER RESIDENCE. MR. STOCK HAS NOT SUBMITTED EVIDENCE OF HIS EFFORTS TO OBTAIN TEMPORARY HOUSING. IN LIGHT OF THE FACT THAT ONLY THREE DAYS TRANSPIRED BETWEEN THE DAY ON WHICH HE CONTRACTED TO SELL THE FORMER RESIDENCE AND THE DAY ON WHICH THE RENTAL AGREEMENT FOR THE RESIDENCE WAS EXECUTED, AND THAT DURING THIS PERIOD THE CLAIMANT REQUESTED AND WAS FURNISHED THE ERRONEOUS ADVICE REFERRED TO ABOVE, IT IS UNLIKELY THAT SUCH EFFORTS WERE MADE OR COULD CREDIBLY BE DEMONSTRATED. FURTHER, THE CLAIMANT CONTINUED TO RESIDE IN HIS RESIDENCE FOR 3 1/2 MONTHS AFTER IT WAS SOLD. SUCH PROLONGED OCCUPANCY OF THE RESIDENCE IS INCONSISTENT WITH AN INTENT TO VACATE THE PREMISES AT THE TIME THAT THE RIGHT OF POSSESSION THERETO PASSED TO THE PURCHASER.

THE CLAIMANT PLACES MUCH EMPHASIS ON THE SETTLEMENT IN FAVOR OF MRS. VIOLET CONLEY BY OUR CLAIMS DIVISION IN SUPERFICIALLY SIMILAR CIRCUMSTANCES. HE NOTES THAT BOTH EMPLOYEES WERE ADVISED BY THE SAME IRS OFFICIAL AND THAT BOTH SOLD HOMES IN THE SAME GENERAL AREA, WHICH THEY SUBSEQUENTLY OCCUPIED ON A RENTAL BASIS. SINCE NONE OF THESE FACTORS ARE RELEVANT TO THE QUESTION OF THE INTENT TO VACATE, THE EMPHASIS GIVEN TO THESE SIMILARITIES IS MISPLACED. MOREOVER, IT IS NOTED THAT IN THE MATTER OF MRS. CONLEY, HERE INTENT TO VACATE WAS DEMONSTRATED BY THE FACT THAT SHE ALREADY HAD OBTAINED A RESIDENCE AT HER NEW DUTY STATION, THAT SHE WAS UNABLE TO OBTAIN QUARTERS ADEQUATE FOR HERSELF, HER DISABLED HUSBAND, AND THEIR SIX CHILDREN, RANGING FROM AGES 1 TO 16, AND THAT SHE OCCUPIED HER FORMER RESIDENCE AS TEMPORARY QUARTERS FOR ONLY 23 DAYS, UNTIL SHE COULD MOVE TO THE NEW DUTY STATION. SINCE SUCH AN OBJECTIVE SHOWING OF THE INTENT TO VACATE WAS NOT MADE BY THE CLAIMANT HERE, HE MAY NOT BE AUTHORIZED REIMBURSEMENT FOR SUBSISTENCE IN TEMPORARY QUARTERS.

MR. STOCK HAS SUBMITTED A VOUCHER IN THE AMOUNT OF $218.33 FOR ALTERNATIVE RELIEF IN THE FORM OF REIMBURSEMENT FOR THE EXPENSES OF TRAVEL TO SEEK RESIDENCE QUARTERS AT THE NEW DUTY STATION. THIS CLAIM HAS BEEN ADMINISTRATIVELY DENIED SINCE THE APPLICABLE REGULATIONS REQUIRE AUTHORIZATION PRIOR TO TRAVEL AND SUCH AUTHORIZATION WAS NOT MADE HERE. ON APPEAL, MR. STOCK CONTENDS THAT HE SHOULD NOW BE ALLOWED THIS EXPENSE SINCE HE FAILED TO OBTAIN PRIOR AUTHORIZATION FOR THE TRIP IN RELIANCE ON THE ASSURANCE BY THE IRS OFFICIAL THAT HE COULD RECEIVE THE TEMPROARY QUARTERS ALLOWANCE.

UNDER THE PROVISIONS OF 5 U.S.C. 5724(A)(2) (1970), WHICH HAS BEEN IMPLEMENTED BY SECTION 7, OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56, REVISED JUNE 26, 1969, IN FORCE AT THE TIME OF THE TRAVEL IN QUESTION, AN EMPLOYEE AND HIS SPOUSE MAY, UNDER APPROPRIATE CIRCUMSTANCES INCIDENT TO A PERMANENT CHANGE OF STATION, BE AUTHORIZED ONE ROUND TRIP TO SEEK PERMANENT QUARTERS AT THE NEW DUTY STATION. SECTION 2.4C(3) OF THE OMB CIRCULAR PROVIDES:

"(3) THE TRIP FOR FINDING RESIDENCE QUARTERS SHALL NOT BE MADE AT GOVERNMENT EXPENSE UNLESS A PERMANENT CHANGE OF STATION TRAVEL ORDER HAS BEEN ISSUED WHICH INCLUDES AUTHORIZATION FOR THE ROUND TRIP, MODE OF TRANSPORTATION AND PERIOD OF TIME ALLOWED FOR THE TRIP, SPECIFIES THE DATE FOR REPORTING AT THE NEW OFFICIAL STATION, AND INDICATES THAT THE EMPLOYEE HAS SIGNED THE REQUIRED AGREEMENT. AN EMPLOYEE WILL BE IN A DUTY STATUS DURING THE AUTHORIZED ROUND TRIP PERIOD OF ABSENCE."

IN CERTAIN CASES WE HAVE ALLOWED THE PAYMENT OF EXPENSES FOR A HOUSE HUNTING TRIP, NOTWITHSTANDING THE FACT THAT NO WRITTEN AUTHORIZATION HAD BEEN ISSUED PRIOR TO THE TRIP, WHERE THE EMPLOYEE WAS VERBALLY AUTHORIZED TO MAKE THE TRIP BY A RESPONSIBLE OFFICIAL OF THE AGENCY WITH COMPETENT AUTHORITY BEFORE IT WAS TAKEN, AND THE MANNER IN WHICH IT WAS TAKEN IN THE BEST INTERESTS OF THE AGENCY. HOWEVER, WE HAVE ALSO HELD THAT IN THE ABSENCE OF AUTHORIZATION PRIOR TO THE PERFORMANCE OF THE TRIP BY AN OFFICIAL VESTED WITH AUTHORITY TO GRANT SUCH AUTHORIZATION, HOUSE-HUNTING TRIP EXPENSES MAY NOT BE REIMBURSED. B-182508, JUNE 3, 1975.

THE ISSUE HERE IS WHETHER THE IMPROPER COUNSELING OF MR. STOCK BY THE IRS OFFICIAL WHICH CAUSED MR. STOCK TO FOREGO THE HOUSEHUNTING TRIP IN THE BELIEF THAT A TEMPORARY QUARTERS ALLOWANCE WOULD BE AUTHORIZED, CONSTITUTES ADMINISTRATIVE ERROR OF A TYPE WHICH MAY BE CONSTRUED AS AN EXCEPTION TO THE REGULATORY REQUIREMENT THAT THE TRAVEL ORDER INCLUDE AUTHORIZATION FOR THE ROUND TRIP TO SEEK PERMANENT RESIDENCE QUARTERS AT THE NEW DUTY STATION. IN THIS PARTICULAR CONTEXT, THE ADMINISTRATIVE ERRORS WHICH MAY BE RETROACTIVELY CORRECTED TO INCREASE OR DECREASE BENEFITS ALLOWANCE TO EMPLOYEES ARE THOSE WHICH RELATE TO A FAILURE TO FOLLOW THE SPECIFIC INTENT OF THE AUTHORIZING OFFICIAL WITH RESPECT TO PRIOR AUTHORIZATION. B-179449, NOVEMBER 26, 1973. THE DULY AUTHORIZED OFFICIALS AT THE IRS COULD FORM NO SPECIFIC INTENT WITH REGARD TO MR. STOCK'S ENTITLEMENT TO A HOUSE-HUNTING TRIP AT GOVERNMENT EXPENSE SINCE THEY WERE NOT REQUESTED TO AUTHORIZE THE TRIP. BECAUSE NO AUTHORIZATION, WRITTEN OR OTHERWISE, WAS MADE PRIOR TO THE HOUSE HUNTING TRIP TAKEN BY MR. AND MRS. STOCK, THERE IS NO BASIS UPON WHICH REIMBURSEMENT MAY BE PREDICATED HERE.

IN VIEW OF THE FOREGOING, THE DISALLOWANCE OF THE CLAIM BY OUR CLAIMS DIVISION IS HEREBY SUSTAINED.