B-185810, NOV 16, 1976

B-185810, NOV 16, 1976

1. EMPLOYEE OF COLLEGE ASSIGNED TO NAVY UNDER INTERGOVERNMENTAL PERSONNEL ACT (IPA), WHO RECEIVED INCORRECT INFORMATION FROM NAVY AND MOVED HOUSEHOLD GOODS INCIDENT TO IPA ASSIGNMENT BY COMMERCIAL MOVER, CANNOT BE REIMBURSED FOR MOVING EXPENSES IN EXCESS OF COMMUTED RATE. STATUTES AND REGULATIONS REQUIRE USE OF COMMUTED RATE SYSTEM FOR INTERSTATE HOUSEHOLD GOODS SHIPMENT IN ABSENCE OF ADMINISTRATIVE DETERMINATION THAT SAVING TO GOVERNMENT WOULD RESULT FROM SHIPMENT BY GOVERNMENT BILL OF LADING AND GOVERNMENT IS NOT RESPONSIBLE FOR ERRONEOUS STATEMENTS OF ITS AGENTS. 2. EMPLOYEE OF COLLEGE ASSIGNED TO NAVY UNDER INTERGOVERNMENTAL PERSONNEL ACT (IPA) MAY NOT BE PAID MISCELLANEOUS EXPENSES ALLOWANCE PROVIDED FOR BY 5 U.S.C. 5724AB) BECAUSE LISTING AT 5 U.S.C. 3375(A) OF TRAVEL EXPENSES PAYABLE IN CONNECTION WITH IPA ASSIGNMENTS DOES NOT INCLUDE SEC. 5724AB) OR MISCELLANEOUS EXPENSES AMONG THOSE APPLICABLE TO IPA EMPLOYEES. 3. EMPLOYEE OF COLLEGE ASSIGNED TO NAVY UNDER INTERGOVERNMENTAL PERSONNEL ACT (IPA) MAY NOT BE REIMBURSED FOR EXPENSES INCURRED IN SETTLING UNEXPIRED LEASE ON FORMER RESIDENCE QUARTERS WHERE 5 U.S.C. 3375, ENUMERATING AUTHORIZED RELOCATION EXPENSES INCIDENT TO IPA ASSIGNMENTS, DOES NOT INCLUDE SUCH AN EXPENSE AMONG THOSE APPLICABLE TO EMPLOYEES ON SUCH ASSIGNMENTS.

JAMES D. BROMAN - RELOCATION EXPENSES - EMPLOYEE ASSIGNED TO FEDERAL GOVERNMENT UNDER INTERGOVERNMENTAL PERSONNEL ACT:

THIS ACTION IS IN RESPONSE TO THE APPEAL MADE BY MR. JAMES D. BROMAN FROM A SETTLEMENT CERTIFICATE ISSUED BY OUR CLAIMS DIVISION DATED DECEMBER 16, 1975, DISALLOWING HIS CLAIM FOR ADDITIONAL TRAVEL ALLOWANCES IN CONNECTION WITH AN ASSIGNMENT UNDER SECTION 402(A) OF THE INTERGOVERNMENTAL PERSONNEL ACT (IPA) OF 1970, 5 U.S.C. 3372 (1970).

THE RECORD INDICATES THAT MR. BROMAN, AN EMPLOYEE OF THE CITY COLLEGES OF CHICAGO, AGREED TO SERVE WITH THE DEPARTMENT OF THE NAVY, DEFENSE ACTIVITY FOR NON-TRADITIONAL EDUCATION SUPPORT (DANTES), PENSACOLA, FLORIDA, UNDER A 2-YEAR IPA ASSIGNMENT, BEGINNING MARCH 31, 1975. PART IX, "TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES," OF THE FEBRUARY 4, 1975, ASSIGNMENT AGREEMENT BETWEEN MR. BROMAN AND THE NAVY PROVIDES IN PERTINENT PART:

"EMPLOYEE WILL RECEIVE TRAVEL AND RELOCATION EXPENSES FOR HIMSELF, HIS FAMILY, THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS TO AND FROM PENSACOLA, FL IN ACCORDANCE WITH SECTION 5724(A)(1) TITLE 5 OF THE U.S.C. * * * "

CHIEF OF NAVAL EDUCATION AND TRAINING (CNET) TRAVEL ORDER NO. N0006275T009092, DATED MARCH 17, 1975, AUTHORIZED THE TRAVEL OF MR. BROMAN AND HIS DEPENDENTS FROM CHICAGO, ILLINOIS, TO PENSACOLA, FLORIDA, PER DIEM FOR MR. BROMAN AND HIS DEPENDENTS, 5 DAYS TEMPORARY QUARTERS SUBSISTENCE EXPENSE, TRANSPORTATION OF MR. BROMAN'S HOUSEHOLD GOODS, AND A TRAVEL ADVANCE OF $2,010. THE BROMAN FAMILY DEPARTED BY AUTOMOBILE FROM CHICAGO ON MARCH 28, ARRIVED IN PENSACOLA ON MARCH 30, AND OCCUPIED TEMPORARY QUARTERS TO APRIL 2. MR. BROMAN CLAIMED REIMBURSEMENT FOR THE FOLLOWING ITEMS:

TEMPORARY QUARTERS SUBSISTENCE $ 269.74 MILEAGE - CHICAGO TO PENSACOLA 102.00 HOUSEHOLD MOVING EXPENSES 2,382.06

$2,753.80

THE NAVY, HOWEVER, ALLOWED THE FOLLOWING AMOUNTS:

PER DIEM $ 140.63 MILEAGE - CHICAGO TO PENSACOLA 102.00 TEMPORARY QUARTERS SUBSISTENCE 142.19 TRANSPORTATION OF HOUSEHOLD 1,677.00

$2,061.82

THE DIFFERENCE OF $51.82 BETWEEN THE ALLOWANCE OF $2,061.82 AND MR. BROMAN'S TRAVEL ADVANCE OF $2,010 WAS PAID TO HIM BY A VOUCHER DATED AUGUST 5, 1975.

ON SEPTEMBER 8, 1975, MR. BROMAN SUBMITTED A SUPPLEMENTAL CLAIM RECLAIMING THE $705.06 OF HOUSEHOLD GOODS MOVING EXPENSES WHICH HAD NOT BEEN ALLOWED, AND ADDITIONALLY CLAIMING PAYMENT OF A $200 MISCELLANEOUS EXPENSES ALLOWANCE AND REIMBURSEMENT OF $100 FOR THE COST OF SETTLING AN UNEXPIRED LEASE OF HIS RESIDENCE IN ARLINGTON HEIGHTS, ILLINOIS. MR. BROMAN HAS APPARENTLY ACCEPTED THE ALLOWANCES FOR PER DIEM AND TEMPORARY QUARTERS SUBSISTENCE AS SATISFYING HIS CLAIM OF $269.74 FOR TEMPORARY QUARTERS SUBSISTENCE.

WITH REGARD TO HIS CLAIM FOR ADDITIONAL HOUSEHOLD GOODS MOVING EXPENSES, MR. BROMAN ASSERTS THAT ORAL AND WRITTEN REPRESENTATIONS WERE MADE TO HIM THAT MOVING COSTS FOR HIM AND HIS FAMILY WOULD BE PAID IN FULL BY THE GOVERNMENT UNDER THE PROVISIONS OF THE IPA AND THAT NO MENTION WAS MADE OF THE POSSIBILITY OF PAYMENT UNDER TABLES OR OTHER MEANS. HE FURTHER STATES THAT HE WAS ADVISED BY THE CNET STAFF TO ARRANGE WITH A MOVING FIRM TO TRANSPORT HIS HOUSEHOLD GOODS TO PENSACOLA, AND THAT HE WAS NEVER APPRISED OF THE OPPORTUNITY TO MOVE THEM UNDER THE GOVERNMENT BILL OF LADING (GBL) PROCEDURE. REGARDING HIS CLAIMS FOR A MISCELLANEOUS EXPENSES ALLOWANCE AND REIMBURSEMENT FOR THE COST OF TERMINATING HIS LEASE, HE STATES THAT HE HAD NOT PREVIOUSLY CLAIMED SUCH EXPENSES BECAUSE HE HAD BEEN TOLD THAT THEY WOULD NOT BE PAID.

MR. BROMAN'S IPA ASSIGNMENT WAS ARRANGED PURSUANT TO 5 U.S.C. 3372(B)(2) (1970) WHICH PROVIDES THAT SUBCHAPTER VI OF TITLE 5 IS AUTHORITY FOR THE ASSIGNMENT OF AN EMPLOYEE OF AN INSTITUTION OF HIGHER LEARNING TO A FEDERAL EXECUTIVE AGENCY. HIS ENTITLEMENT TO TRAVEL EXPENSES IS, THEREFORE, SUBJECT TO THE PROVISIONS OF 5 U.S.C. 3375 (1970) OF THE CITED SUBCHAPTER. THAT SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE WITH--

"(1) SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE, FOR THE EXPENSES OF-

"(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE ASSIGNMENT LOCATION;

"(2) SECTION 5724 OF THIS TITLE, FOR THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY AND OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS TO AND FROM THE ASSIGNMENT LOCATION:

"(3) SECTION 5724AA)(1) OF THIS TITLE, FOR THE EXPENSES OF PER DIEM ALLOWANCES FOR THE IMMEDIATE FAMILY OF THE EMPLOYEE TO AND FROM THE ASSIGNMENT LOCATION;

"(4) SECTION 5724AA)(3) OF THIS TITLE, FOR SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS AT THE ASSIGNMENT LOCATION AND ON RETURN TO HIS FORMER POST OF DUTY * * * ."

SECTION 5724 OF TITLE 5, GOVERNING THE SHIPMENT OF HOUSEHOLD GOODS OF CIVILIAN EMPLOYEES WITHIN THE CONTERMINOUS UNITED STATES, PROVIDES AS FOLLOWS:

"(C) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN EMPLOYEE WHO TRANSFERS BETWEEN POINTS INSIDE THE CONTINENTAL UNITED STATES, INSTEAD OF BEING PAID FOR THE ACTUAL EXPENSES OF TRANSPORTING, PACKING, CRATING, TEMPORARILY STORING, DRAYING, AND UNPACKING OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, SHALL BE REIMBURSED ON A COMMUTED BASIS AT THE RATES PER 100 POUNDS THAT ARE FIXED BY ZONES IN THE REGULATIONS. THE REIMBURSEMENT MAY NOT EXCEED THE AMOUNT WHICH WOULD BE ALLOWABLE FOR THE AUTHORIZED WEIGHT ALLOWANCE. HOWEVER, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, PAYMENT OF ACTUAL EXPENSES MAY BE MADE WHEN THE HEAD OF THE AGENCY DETERMINES THAT PAYMENT OF ACTUAL EXPENSES IS MORE ECONOMICAL TO THE GOVERNMENT."

FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-8.3(2) (MAY 1973), IMPLEMENTING 5 U.S.C. 5724(C) (1970), SETS FORTH THE COMMUTED RATE SYSTEM, UNDER WHICH THE EMPLOYEE MAKES HIS OWN ARRANGEMENTS FOR MOVING HIS HOUSEHOLD GOODS, AND IS PAID AN ALLOWANCE DETERMINED BY THE WEIGHT AND DISTANCE OF THE SHIPMENT RATHER THAN THE ACTUAL COST OF THE SHIPMENT. ALSO, FTR PARA. 2-8.3C(4) (MAY 1973) PROVIDES THAT THE COMMUTED RATE SYSTEM SHOULD GENERALLY BE USED IN CASES OF INDIVIDUAL INTERSTATE MOVES. THAT REGULATION PROVIDES AS FOLLOWS:

"(A) INDIVIDUAL TRANSFERS. AGENCY EXPERIENCE WITH THE ACTUAL EXPENSE METHOD HAS SHOWN THAT SHIPMENT BY GOVERNMENT BILL OF LADING DOES NOT RESULT IN SAVINGS SIMPLY BECAUSE A LINE-HAUL DISCOUNT IS AVAILABLE. THEREFORE, THE COMMUTED RATE SYSTEM SHALL BE USED FOR INDIVIDUAL TRANSFERS WITHOUT CONSIDERATION BEING GIVEN THE ACTUAL EXPENSE METHOD, EXCEPT THAT THE ACTUAL EXPENSE METHOD MAY BE USED IF THE ACTUAL COSTS TO BE INCURRED BY THE GOVERNMENT FOR PACKING AND OTHER ACCESSORIAL SERVICES ARE PREDETERMINED (AT LEAST AS TO PRICE PER 100 POUNDS) AND IF THAT METHOD IS EXPECTED TO RESULT IN A REAL SAVINGS TO THE GOVERNMENT OF $100 OR MORE. (FOR INTRASTATE TRANSFERS, SEE 2 8.3C(4)(D).)"

UNDER THE REGULATION CITED ABOVE, AN EMPLOYEE MAY BE AUTHORIZED SHIPMENT OF HIS HOUSEHOLD GOODS BY GOVERNMENT BILL OF LADING ONLY WHEN THE ACTUAL COSTS TO BE INCURRED FOR PACKING AND OTHER ACCESSORIAL SERVICE ARE PREDETERMINED AND THE ACTUAL EXPENSE METHOD IS EXPECTED TO RESULT IN A SAVINGS TO THE GOVERNMENT. THERE IS NOTHING OF RECORD TO INDICATE THAT AN ADMINISTRATIVE DETERMINATION WAS MADE TO SHIP THE HOUSEHOLD GOODS BY GOVERNMENT BILL OF LADING, AND THEY WERE ACTUALLY SHIPPED BY COMMERCIAL BILL OF LADING. ACCORDINGLY, THERE IS NO AUTHORITY TO REIMBURSE MR. BROMAN FOR THE SHIPMENT OF HIS HOUSEHOLD OTHER THAN UNDER THE COMMUTED RATE SYSTEM.

ALTHOUGH IT IS MOST UNFORTUNATE THAT MR. BROMAN WAS INCORRECTLY ADVISED BY GOVERNMENT REPRESENTATIVES, IT IS WELL ESTABLISHED THAT THE GOVERNMENT CANNOT BE BOUND BY THE UNAUTHORIZED OR INCORRECT STATEMENTS OF ITS AGENTS. B-181311, AUGUST 21, 1974, AND COURT CASES CITED THEREIN. THEREFORE, BECAUSE MR. BROMAN WAS REIMBURSED FOR HIS HOUSEHOLD GOODS MOVING EXPENSES UNDER THE COMMUTED RATE SYSTEM IN ACCORDANCE WITH THE APPLICABLE STATUTES AND REGULATIONS, HE HAS NO ENTITLEMENT TO THE ADDITIONAL TRANSPORTATION CHARGES CLAIMED.

SECTION 3375 OF TITLE 5 DOES NOT PROVIDE FOR THE PAYMENT OF A MISCELLANEOUS EXPENSES ALLOWANCE OR LEASE TERMINATION EXPENSES FOR PERSONS WHO RECEIVE IPA ASSIGNMENTS. THEREFORE, WE HAVE HELD THAT AN EMPLOYEE ON AN IPA ASSIGNMENT MAY NOT BE PAID A MISCELLANEOUS EXPENSES ALLOWABLE. THIS CONNECTION, WE STATED THE FOLLOWING IN DECISION B-170589, SEPTEMBER 18, 1974:

"WHILE WE RECOGNIZE THAT EMPLOYEES GIVEN LENGTHY IPA ASSIGNMENTS DO INCUR MANY OF THE SAME KIND OF EXPENSES AS DO PERMANENTLY REASSIGNED EMPLOYEES AND THAT THE SPECIFIC SUBSECTIONS OF 5 U.S.C. 5724 AND 5724A ENUMERATED IN 5 U.S.C. 3375(A) WERE SO LISTED BECAUSE THEY WOULD OTHERWISE BE INAPPLICABLE TO IPA ASSIGNMENTS, WE CANNOT AGREE * * * EITHER THAT ALLOWANCES OTHER THAN THOSE ENUMERATED AT SUBSECTION 3375(A) ARE PAYABLE IN CONNECTION WITH IPA ASSIGNMENTS OR THAT BY VIRTUE OF THE LANGUAGE OF SUBSECTION 5724AB) THE MISCELLANEOUS EXPENSES ALLOWANCE IS PAYABLE IN CONNECTION WITH OTHER THAN PERMANENT CHANGES OF STATION.

" * * * SINCE IPA ASSIGNMENTS ARE NOT REGARDED AS PERMANENT CHANGES OF STATION, EMPLOYEES SO ASSIGNED ARE ENTITLED TO REIMBURSEMENT FOR CERTAIN BUT NOT ALL OF THE EXPENSES PROVIDED UNDER 5724AA) OR 5724(A) * * * BY VIRTUE OF THE SPECIFIC AUTHORITY CONTAINED AT SUBSECTION 3375(A)."

IN DECISION B-183042, APRIL 24, 1975, WE HELD THAT AN EMPLOYEE ON AN IPA ASSIGNMENT WAS NOT ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED IN SETTLING AN UNEXPIRED LEASE ON RESIDENCE QUARTERS. IN THAT DECISION WE STATED THE FOLLOWING:

"IN CONSIDERING WHAT RELOCATION EXPENSES SHOULD BE REIMBURSED TO AN EMPLOYEE PARTICIPATING IN THE IPA PROGRAM, CONGRESS DETERMINED THAT SUCH EMPLOYEES WERE ENTITLED ONLY TO THE RELOCATION EXPENSES LISTED IN SECTIONS 5724AA)(1) AND (3) AND SECTION 5726(C) OF TITLE 5 OF THE UNITED STATES CODE. NO PROVISION WAS MADE FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE SALE OR PURCHASE OF A RESIDENCE OR THE SETTLEMENT OF AN UNEXPIRED LEASE."

IN VIEW OF THE ABOVE, WE HOLD THAT THERE IS NO AUTHORITY FOR PAYMENT OF A MISCELLANEOUS EXPENSES ALLOWANCE OR REIMBURSEMENT OF LEASE TERMINATION EXPENSE TO MR. BROMAN.

ACCORDINGLY, THE DISALLOWANCE OF MR. BROMAN'S CLAIM FOR ADDITIONAL TRAVEL ALLOWANCES INCIDENT TO HIS IPA ASSIGNMENT IS SUSTAINED.