B-194159, OCT 30, 1979

B-194159, OCT 30, 1979

DIGEST: 1. AN EMPLOYEE, UPON COMPLETION OF A PERMANENT CHANGE OF STATION, SUBMITTED A TRAVEL VOUCHER SUBSEQUENTLY FOUND TO BE FRAUDULENT IN PARTS. SUBMISSION OF THIS VOUCHER DOES NOT FORFEIT HIS RIGHT TO ANY REIMBURSEMENT FOR ANY ITEM ON VOUCHER. EMPLOYEE MAY BE REIMBURSED FOR THOSE SEPARATE AMOUNTS WHICH ARE FOUND NOT TO BE BASED ON FRAUD. 2. EMPLOYEE SEEKS REIMBURSEMENT FOR EXPENSES INCURRED WHILE STAYING IN TEMPORARY QUARTERS BEFORE AND AFTER HIS FURNITURE ARRIVED AT HIS NEW PERMANENT RESIDENCE. EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED PRIOR TO ARRIVAL OF FURNITURE AND MAY BE ENTITLED TO EXPENSES INCURRED AFTER THE FURNITURE'S ARRIVAL IF HE CAN SUPPORT HIS CONTENTION THAT HIS HOUSE WAS UNINHABITABLE DURING THIS TIME. 3. CIVIL SERVICE RETIRED BENEFITS MAY BE WITHHELD TO OFFSET AN UNLIQUIDATED TRAVEL ADVANCE OWED TO THE UNITED STATES. THE FACT THAT THESE BENEFITS ARE IN THE FORM OF A DISABILITY PENSION IS OF NO CONSEQUENCE.

BEN L. ZANE:

THE ISSUE IS WHETHER MR. BEN L. ZANE, AN EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), IS ENTITLED TO BE REIMBURSED FOR ANY OF THE EXPENSES CLAIMED ON A PERMANENT CHANGE OF STATION TRAVEL VOUCHER WHICH IS PARTIALLY FRAUDULENT. ALSO, WE ARE ASKED WHETHER THE UNLIQUIDATED PORTION OF A TRAVEL ADVANCE ISSUED TO MR. ZANE, INCIDENT TO HIS PERMANENT CHANGE OF STATION, MAY BE OFFSET AGAINST HIS CIVIL SERVICE DISABILITY RETIREMENT BENEFITS. FOR THE REASONS STATED BELOW MR. ZANE MAY BE CREDITED FOR THOSE ITEMS NOT TAINTED BY FRAUD AND ANY UNLIQUIDATED PORTION OF THE TRAVEL ADVANCE MAY BE OFFSET AGAINST HIS DISABILITY RETIREMENT BENEFITS IF IT IS NOT OTHERWISE COLLECTIBLE.

THESE QUESTIONS WERE PRESENTED BY A LETTER OF FEBRUARY 13, 1979, FROM MR. DARREL I. STOTTS, AUTHORIZED CERTIFYING OFFICER, REGION VII, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW).

THE RECORD INDICATES THAT BY TRAVEL ORDER NO. BHA-71-104, DATED DECEMBER 16, 1975, MR. ZANE AND HIS DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM SEATTLE, WASHINGTON, TO KANSAS CITY, MISSOURI, INCIDENT TO MR. ZANE'S PERMANENT CHANGE OF STATION. THE TRAVEL ORDER ALSO AUTHORIZED, INTER ALIA, TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR MR. ZANE AND HIS FAMILY AND A HOUSE HUNTING TRIP.

TO FINANCE HIS TRANSFER MR. ZANE APPLIED FOR AND WAS GRANTED A TRAVEL ADVANCE OF $6,484. MR. ZANE SUBMITTED A TRAVEL VOUCHER ON AUGUST 18, 1976, CLAIMING EXPENSES OF $6,826.50. THE EXPENSES CLAIMED WERE TO BE USED TO LIQUIDATE MR. ZANE'S TRAVEL ADVANCE. THAT VOUCHER RAISES THE ISSUES TO BE ADDRESSED BELOW.

SUBSEQUENT TO THE RECEIPT AND PRELIMINARY REVIEW OF MR. ZANE'S VOUCHER, HEW'S OFFICE OF REGIONAL COMPTROLLER REQUESTED THAT HE SUBMIT ADDITIONAL INFORMATION CONCERNING CERTAIN EXPENSES BEFORE PROCESSING OF THE VOUCHER COULD BE CONTINUED. HE SUBMITTED INFORMATION, WITH THE EXCEPTION OF A RENT RECEIPT, THAT HE ALLEGED TO BE RESPONSIVE TO THE REQUEST.

LATER, HEW'S OFFICE OF INVESTIGATIONS INVESTIGATED MR. ZANE'S TRAVEL VOUCHER. THEIR REPORT ESTABLISHED THAT HE CLAIMED EXPENSES FOR A HOUSE HUNTING TRIP HE DID NOT TAKE AND THAT HE ALSO CLAIMED TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE TO WHICH HE WAS NOT ENTITLED. THIS REPORT WAS TURNED OVER TO THE UNITED STATES ATTORNEY, WESTERN DISTRICT OF MISSOURI. SUBSEQUENTLY, A GRAND JURY INDICTED MR. ZANE ON THREE FELONY COUNTS. PLEADED GUILTY TO TWO MISDEMEANOR COUNTS AND RECEIVED A SUSPENDED SENTENCE, WAS PLACED ON PROBATION, AND WAS FINED $1,500, WHICH HAS BEEN PAID.

THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE STILL SEEKS RECOVERY OF THE OUTSTANDING TRAVEL ADVANCE SINCE THE ISSUE WAS NOT SETTLED IN THE CRIMINAL ACTION. HEW, HOWEVER, IS WILLING TO OFFSET AGAINST THE TRAVEL ADVANCE ANY LEGITIMATE CLAIM MR. ZANE MAKES ON A RESUBMISSION OF A VALID VOUCHER. HEW ASKS WHETHER THIS WOULD BE PERMISSIBLE AND IF ANY OF MR. ZANE'S CLAIM MAY BE PAID OR WHETHER BY FILING A VOUCHER WHICH IS PARTIALLY FRAUDULENT HE HAS FORFEITED HIS RIGHT TO REIMBURSEMENT OF ANY ITEMS ON THAT VOUCHER.

IN OUR DECISION, 57 COMP.GEN. 664 (1978), WE HELD THAT WHEN AN EMPLOYEE HAS RECEIVED A TRAVEL ADVANCE AND HE SUBMITS A FALSE FINAL SETTLEMENT VOUCHER, THE TRAVEL VOUCHER SUBMITTED IN LIQUIDATION OF THE ADVANCE IS TO BE TREATED IN THE SAME MANNER AS ANY OTHER TRAVEL VOUCHER IN WHICH FRAUD IS FOUND TO BE INVOLVED. ORDINARILY, WHEN A TRAVEL VOUCHER HAS BEEN FILED IN WHICH FRAUD IS FOUND IN SOME ITEMS CLAIMED, EACH SEPARATE ITEM OF PAY AND ALLOWANCES IS VIEWED AS A SEPARATE CLAIM. 41 COMP.GEN. 285, 288 (1961). A SEPARATE ITEM FOR THESE PURPOSES IS ONE WHICH THE EMPLOYEE COULD CLAIM INDEPENDENTLY OF HIS OTHER ENTITLEMENTS. THE FACT THAT SEVERAL ITEMS MAY BE INCLUDED IN A SINGLE VOUCHER DOES NOT MEAN THAT THEY HAVE LOST THEIR CHARACTER AS SEPARATE CLAIMS. THUS, ONLY THE SEPARATE ITEMS ATTRIBUTED TO THE FALSE STATEMENTS ARE TO BE DISALLOWED, AND ANY OTHER AMOUNTS THAT ARE NOT TAINTED BY FRAUD MAY BE ALLOWED. 57 COMP.GEN. SUPRA, AT 668. THE QUESTIONABLE AREAS OF MR. ZANE'S TRAVEL VOUCHER ARE HOUSE HUNTING EXPENSES AND TEMPORARY QUARTERS SUBSISTENCE EXPENSES (TQSE).

MR. ZANE CLAIMS REIMBURSEMENT OF THE EXPENSES FOR A HOUSE HUNTING TRIP HE AND HIS WIFE ALLEGEDLY TOOK FROM SEATTLE TO KANSAS CITY, DURING THE PERIOD NOVEMBER 22-27, 1975. ACCORDING TO HEW, MR. ZANE HAS ALREADY BEEN REIMBURSED FOR A TRIP FROM SEATTLE TO KANSAS CITY AND RETURN TO ATTEND A JOB INTERVIEW DURING THIS SAME TIME PERIOD. THIS IS DOCUMENTED BY A TRAVEL VOUCHER SUBMITTED BY MR. ZANE ON DECEMBER 9, 1975. HE RECEIVED $390.20 IN PAYMENT FOR THIS CLAIM. ALSO, IN HIS STATEMENT OF MAY 20, 1977, MADE TO MR. FRANCIS E. MUCKLIN, SPECIAL INVESTIGATOR, OFFICE OF INVESTIGATIONS, HEW, HE AFFIRMS THE FACT THAT THE TRAVEL CLAIMED FOR THE HOUSE HUNTING TRIP DUPLICATED THE JOB INTERVIEW TRAVEL FOR WHICH HE HAD ALREADY BEEN REIMBURSED. THUS, ALL CLAIMS ASSOCIATED WITH MR. ZANE'S HOUSE HUNTING TRIP MAY NOT BE ALLOWED.

WE NOTE THAT THE RECORD SHOWS THAT MR. ZANE'S WIFE ACCOMPANIED HIM TO KANSAS CITY WHEN HE TRAVELED THERE FOR HIS JOB INTERVIEW, AND THAT THEY LOOKED FOR A RESIDENCE IN THE AREA WHILE ON THAT TRIP. EVEN THOUGH THE TRANSFER ORDER THAT WAS SUBSEQUENTLY ISSUED AUTHORIZED A HOUSE HUNTING TRIP, MR. ZANE MAY NOT BE REIMBURSED FOR THE EXPENSES ATTRIBUTABLE TO HIS WIFE'S TRAVEL WITH HIM ON THE JOB INTERVIEW TRIP. IN MATTER OF PATRICK J. TWOHIG, B-185511, MARCH 3, 1976, WHERE AN EMPLOYEE'S WIFE ACCOMPANIED HIM ON TEMPORARY DUTY TRAVEL TO A PROSPECTIVE DUTY STATION, WE HELD THAT THE EMPLOYEE'S CLAIM FOR REIMBURSEMENT OF HIS WIFE'S EXPENSES WAS DISALLOWED BECAUSE A HOUSE HUNTING TRIP MUST BE AUTHORIZED IN ADVANCE. HERE, MR. ZANE HAD NOT EVEN BEEN SELECTED FOR THE NEW POSITION, SO THERE COULD NOT HAVE BEEN ANY PRIOR AUTHORIZATION FOR THE HOUSE HUNTING TRIP.

MR. ZANE ALSO CLAIMS TEMPORARY QUARTERS EXPENSES FOR THE PERIOD JULY 9, 1976-AUGUST 8, 1976. ACCORDING TO THE RECORD, HE PURCHASED A HOME IN OVERLAND PARK, KANSAS WITH SETTLEMENT OCCURRING ON JULY 2, 1976. UPON ARRIVAL IN KANSAS CITY ON JULY 10, MR. ZANE AND HIS FAMILY LIVED IN A RODEWAY INN UNTIL JULY 27 WHEN THEY MOVED INTO THEIR NEW HOME. HE STATES THAT THE REASON FOR THE DELAY IN MOVING IN WAS CAUSED BY THE FURNITURE NOT ARRIVING UNTIL JULY 15. FURTHER, HE STATES THAT WHEN THE FURNITURE FINALLY ARRIVED THE HOUSE WAS NOT INHABITABLE AS THE STOVE AND THE AIR CONDITIONER WERE NOT FUNCTIONING AND THE BASEMENT HAD BEEN FLOODED.

ALTHOUGH MR. ZANE AND HIS FAMILY MOVED INTO THEIR HOME ON JULY 27, HE CLAIMED TQSE UNTIL AUGUST 8. THE TRAVEL VOUCHER AND SUPPORTING DOCUMENTS INDICATE THAT FROM JULY 28 UNTIL AUGUST 8, HE AND HIS FAMILY RENTED A HOME IN PRAIRIE VILLAGE, KANSAS. HE HAS ADMITTED THAT HE AND HIS FAMILY NEVER RESIDED IN THAT HOUSE AND THAT THE STATEMENT FROM THE REAL ESTATE SALESPERSON VERIFYING HIS OCCUPANCY OF THE RENTAL PROPERTY WAS FICTITIOUS. IN ADDITION, MR. ZANE ACKNOWLEDGES THAT AT THE TIME HE SENT IN THE STATEMENT HE WAS AWARE THAT HE WAS PERPETUATING HIS ORIGINAL MISREPRESENTATION. THEREFORE, MR. ZANE MAY NOT BE REIMBURSED FOR THE TQSE CLAIMED FROM JULY 28 TO AUGUST 8, SINCE HE NEVER INCURRED THESE EXPENSES.

WHERE SUBSISTENCE EXPENSES ARE INVOLVED IN A FRAUDULENT CLAIM WE HAVE HELD THAT THE VOUCHER MAY BE SEPARATED INTO INDIVIDUAL DAYS WITH EACH DAY COMPRISING A SEPARATE PER DIEM OR ACTUAL SUBSISTENCE EXPENSE CLAIM. COMP.GEN. SUPRA AT 667. THUS, THE FACT THAT MR. ZANE FRAUDULENTLY CLAIMED TQSE FOR THE PERIOD JULY 28-AUGUST 8, DOES NOT NECESSARILY INVALIDATE HIS ENTIRE CLAIM FOR TQSE.

WE WILL NOW FOCUS ON MR. ZANE'S TQSE CLAIM FOR THE PERIOD JULY 9 THROUGH JULY 26, 1976. MR. ZANE CLAIMED LODGING EXPENSES IN THE AMOUNT OF $27.09 FOR JULY 9, 1976. HEW ASKED HIM TO PROVIDE MORE INFORMATION ON THIS CLAIM SINCE THE LODGING OCCURRED IN SEATTLE WHEN HE AND HIS FAMILY WERE ON THEIR WAY TO KANSAS CITY. MR. ZANE HAS STATED THAT HE HAS NO EXPLANATION AT ALL FOR THIS AND THAT NEITHER HE NOR HIS FAMILY WERE THERE. IN THE ABSENCE OF ANY EXPLANATION, HIS LODGING EXPENSE CLAIM FOR JULY 9, 1976, MUST BE DISALLOWED. IN ADDITION, HIS CLAIM FOR MEALS FOR THAT DATE IS DISALLOWED SINCE A FRAUDULENT STATEMENT FOR ANY SUBSISTENCE ITEM TAINTS THE ENTIRE SUBSISTENCE CLAIM FOR THAT DAY. SEE 57 COMP.GEN. SUPRA AT 668.

AS WAS STATED ABOVE, EVEN THOUGH THE SETTLEMENT DATE FOR MR. ZANE'S HOUSE WAS JULY 2, 1976, HE DID NOT MOVE IN UNTIL JULY 27, 1976, DUE TO THE LATE ARRIVAL OF HIS FURNITURE AND THE ALLEGED UNINHABITABILITY OF HIS HOUSE. UNDER THE PROVISIONS OF 5 U.S.C. 5724(A)(3), AN EMPLOYEE MAY BE REIMBURSED THE SUBSISTENCE EXPENSES OF HIMSELF AND HIS IMMEDIATE FAMILY FOR UP TO 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS. THE IMPLEMENTING REGULATIONS CONTAINED IN THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (MAY 1973) (FTR) PROVIDE THAT THE PERIOD FOR TEMPORARY QUARTERS SHOULD BE REDUCED OR AVOIDED IF THE EMPLOYEE HAS HAD ADEQUATE OPPORTUNITY TO COMPLETE ARRANGEMENTS FOR PERMANENT QUARTERS (FTR PARA. 2-5.1) AND THAT TEMPORARY QUARTERS ARE TO BE REGARDED AS AN EXPEDIENT TO BE USED ONLY FOR LONG AS IS NECESSARY FOR THE EMPLOYEE TO MOVE INTO PERMANENT RESIDENCE QUARTERS (FTR PARA. 2-5.2D). FOR REIMBURSEMENT OF THE EXPENSES OF OCCUPYING TEMPORARY QUARTERS, A DETERMINATION MUST BE MADE THAT THEY WERE NECESSARILY OCCUPIED. SEE FTR PARA. 2-5.2A. ORDINARILY SUCH A DETERMINATION IS MADE BY THE AGENCY ON AN INDIVIDUAL BASIS IN LIGHT OF ALL SURROUNDING CIRCUMSTANCES. MATTER OF DOUGLAS C. STAAB, B-185514, SEPTEMBER 2, 1976. HOWEVER, OUR OFFICE MAY MAKE SUCH DETERMINATION ON THE BASIS OF FACTS PRESENTED TO US BY A CLAIMANT AND HIS AGENCY. SEE: MATTER OF IRVING R. WARNASCH, B-193885, JUNE 8, 1979. IN THE INSTANT CASE, WE BELIEVE MR. ZANE WAS JUSTIFIED IN OCCUPYING TEMPORARY QUARTERS FROM JULY 10-JULY 15, THE DAY HIS FURNITURE ARRIVED. THEREFORE, HIS CLAIM FOR TQSE FOR THAT PERIOD IS ALLOWABLE IF OTHERWISE PROPER. ALSO, MR. ZANE WOULD BE ENTITLED, UNDER THE CIRCUMSTANCES, TO RECEIVE TQSE, FOR THE PERIOD JULY 16 -JULY 27, IF HE CAN PROVE TO THE SATISFACTION OF HEW THAT HIS HOUSE WAS UNINHABITABLE DURING THIS TIME. SEE: WARNASCH, SUPRA.

WITH REGARD TO MR. ZANE'S OTHER CLAIMS FOR REIMBURSEMENT: (1) EXPENSES INCURRED IN THE CHANGE OF STATION TRAVEL FOR HIMSELF AND HIS DEPENDENTS, (2) TRANSPORTATION OF HIS HOUSEHOLD GOODS AND (3) MISCELLANEOUS EXPENSES, THERE IS NO INDICATION THAT THEY ARE FRAUDULENT. THEREFORE, REIMBURSEMENT FOR THOSE EXPENSES IS ALLOWABLE IF THEY ARE FOUND TO BE OTHERWISE PROPER.

THE SECOND ISSUE IS WHETHER ANY UNLIQUIDATED PORTIONS OF THE TRAVEL ADVANCE MAY BE SETOFF AGAINST MR. ZANE'S CIVIL SERVICE RETIREMENT BENEFITS. MORE SPECIFICALLY, HEW WOULD LIKE TO SETOFF THOSE AMOUNTS AGAINST HIS DISABILITY PENSION. THE AUTHORITY TO PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF TRANSFERRED EMPLOYEES IS FOUND IN 5 U.S.C. 5724 (1976). SECTION 5724(F) OF TITLE 5, UNITED STATES CODE, STATES THAT "AN ADVANCE OF FUNDS MAY BE MADE TO AN EMPLOYEE UNDER THE REGULATIONS OF THE PRESIDENT WITH THE SAME SAFEGUARDS REQUIRED UNDER SECTION 5705 OF THIS TITLE." SECTION 5705 PROVIDES FOR THE RECOVERY OF ADVANCED FUNDS FROM AN EMPLOYEE OR HIS ESTATE BY: "(1) SETOFF AGAINST ACCRUED PAY, RETIREMENT CREDIT, OR OTHER AMOUNT DUE AN EMPLOYEE; (2) DEDUCTION FROM AN AMOUNT DUE FROM THE UNITED STATES; AND (3) SUCH OTHER METHOD AS IS PROVIDED BY LAW." THEREFORE, WHEN READ TOGETHER 5 U.S.C. 5705 AND ADVANCES FOR TRAVEL AND TRANSPORTATION EXPENSES.

OUR OFFICE HAS LONG HELD THAT THE GOVERNMENT CANNOT WITHHOLD CURRENT SALARY OF EMPLOYEES TO SATISFY GENERAL DEBTS OWED TO THE GOVERNMENT WITHOUT THE EMPLOYEE'S CONSENT. 29 COMP.GEN. 99 (1949) AND 24 ID. 334, 338 (1944). COLLECTION OF SUCH DEBTS MAY BE MADE AFTER THE EMPLOYEE'S SEPARATION BY OFFSET AGAINST HIS FINAL SALARY CHECK OR LUMP SUM PAYMENT FOR LEAVE. SEE 29 COMP.GEN. 99, SUPRA, AND DECISIONS CITED THEREIN.

WE HAVE ALSO HELD THAT MONEYS HELD IN AN EMPLOYEE'S RETIREMENT ACCOUNT ARE NOT AVAILABLE FOR SETOFF UNTIL HE IS SEPARATED AND WITHDRAWS HIS CONTRIBUTION OR UNTIL HE QUALIFIES FOR A RETIREMENT ANNUITY. 39 COMP. GEN. 203 (1959). ONCE SUCH FUNDS BECOME PAYABLE, HOWEVER, THE AMOUNT MAY BE APPLIED IN LIQUIDATION OF THE EMPLOYEE'S INDEBTEDNESS TO THE UNITED STATES. THIS POSITION IS IMPLICITLY ACKNOWLEDGED IN AVANT V. UNITED STATES, 165 F. SUPP. 802 (E.D. VA. 1958). SEE ALSO: MATTER OF COLLECTION OF DEBTS - STATUTE OF LIMITATIONS ON ADMINISTRATIVE SETOFF, 58 COMP.GEN. 501 (1979); 27 COMP.GEN. 703 (1948); AND O'LEARY V. UNITED STATES, 82 CT. CL. 305 (1936).

IT IS ALSO WELL RECOGNIZED THAT THE GOVERNMENT HAS THE COMMON LAW RIGHT WHICH BELONGS TO EVERY CREDITOR TO APPLY THE APPROPRIATED MONIES OF HIS DEBTOR, IN HIS HANDS, TO EXTINGUISH THE DEBTS OF THAT DEBTOR. SEE: ATWATER V. ROUDEBUSH, 452 F. SUPP. 622 (N.D. ILL. 1976) AND UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 239 (1947). OUR OFFICE HAS CONSISTENTLY FOLLOWED THIS PRINCIPLE AS WELL. SEE: 49 COMP.GEN. 44 (1969) AND 41 ID. 178 (1961). THEREFORE, HEW MAY USE MR. ZANE'S CIVIL SERVICE RETIREMENT BENEFITS TO OFFSET ANY UNLIQUIDATED PORTIONS OF HIS TRAVEL ADVANCE. THE FACT THAT HE IS RECEIVING A DISABILITY PENSION AS OPPOSED TO A PENSION RECEIVED ON ACCOUNT OF YEARS OF GOVERNMENT SERVICE IS OF NO CONSEQUENCE. IN ORDER TO OFFSET THE UNLIQUIDATED PORTIONS OF THE TRAVEL ADVANCE AGAINST MR. ZANE'S BENEFITS, HOWEVER, HEW MUST FILE A REQUEST WITH THE OFFICE OF PERSONNEL MANAGEMENT UNDER THE PROCEDURES SET FORTH IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, SUBCHAPTER S19, NOVEMBER 22, 1978.

ACCORDINGLY, MR. ZANE IS ENTITLED TO HAVE CREDITED AGAINST HIS TRAVEL ADVANCE THOSE AMOUNTS WHICH ARE NOT FRAUDULENT OR TAINTED WITH FRAUD AND ARE OTHERWISE PROPER. IN ADDITION, MR. ZANE'S CIVIL SERVICE RETIREMENT BENEFITS MAY BE USED TO REPAY THE REMAINDER OF HIS TRAVEL ADVANCE, IF IT IS NOT OTHERWISE COLLECTIBLE.