B-197097.OM, DEC 31, 1980

B-197097.OM, DEC 31, 1980

SUBJECT: LOUISE GLOVER MARKRAY - ACTUAL PLACE OF RESIDENCE - B-197097-O.M.

AUTHORIZED CERTIFYING OFFICER - JUDITH B. CZARSTY:

YOUR MEMORANDUM OF DECEMBER 7, 1979, TRANSMITTED THE REQUEST OF LOUISE GLOVER MARKRAY, AN EMPLOYEE OF THIS AGENCY, FOR A REVIEW OF YOUR DETERMINATION THAT HER "ACTUAL PLACE OF RESIDENCE," WITHIN THE MEANING OF SECTION 5728(A) OF TITLE 5, U.S.C. (1976), WAS WASHINGTON, D. C., AND NOT SAN FRANCISCO, CALIFORNIA. MS. MARKRAY CONTENDS THAT HER ACTUAL PLACE OF RESIDENCE AT THE TIME OF HER TRANSFER OVERSEAS WAS SAN FRANCISCO, CALIFORNIA. FOR THE REASONS EXPLAINED BELOW, WE CONCUR WITH YOUR DETERMINATION.

YOUR TRANSMITTAL INDICATES THAT IN DECEMBER 1973, MS. MARKRAY WAS TRANSFERRED FROM WASHINGTON, D. C., TO FRANKFURT, GERMANY. ON JUNE 6, 1977, MS. MARKRAY EXECUTED A RENEWAL AGREEMENT WHICH EXTENDED HER OVERSEAS TOUR FOR 2 YEARS AND QUALIFIED HER FOR HOME LEAVE TRAVEL AT GOVERNMENT EXPENSE. THIS RENEWAL AGREEMENT WAS APPROVED BY THIS AGENCY ON JULY 20, 1977, AND DESIGNATED MS. MARKRAY'S ACTUAL PLACE OF RESIDENCE AS SAN FRANCISCO, CALIFORNIA. HER HOME LEAVE TRAVEL ORDER ISSUED JULY 19, 1977, DID NOT, HOWEVER, AUTHORIZE TRAVEL TO SAN FRANCISCO, CALIFORNIA, BUT DESIGNATED WASHINGTON, D. C., AS THE APPROVED DESTINATION. MS. MARKRAY IN FACT TRAVELED BETWEEN FRANKFURT, GERMANY, AND SAN FRANCISCO, CALIFORNIA, USING A GTR. BASED ON THE DETERMINATION THAT HER HOME LEAVE ENTITLEMENT SHOULD HAVE BEEN LIMITED TO THE COST OF TRAVEL BETWEEN FRANKFURT AND WASHINGTON, D. C., YOU HAVE NOTIFIED MS. MARKRAY THAT YOU SEEK REIMBURSEMENT OF $404.29, THE EXCESS EXPENSES ASSOCIATED WITH HER TRAVEL TO SAN FRANCISCO.

MS. MARKRAY CHALLENGES YOUR COLLECTION EFFORTS ON THE GROUNDS THAT WHEN SHE APPLIED FOR OVERSEAS DUTY ADMINISTRATIVE OFFICIALS INFORMED HER THAT SAN FRANCISCO, CALIFORNIA, COULD BE DESIGNATED AS HER ACTUAL PLACE OF RESIDENCE. SHE CONTENDS THAT ADMINISTRATIVE APPROVAL OF SAN FRANCISCO AS HER RESIDENCE IN HER ORIGINAL AGREEMENT FOR OVERSEAS DUTY AND ALSO IN HER RENEWAL AGREEMENT IS FINAL AND BINDING FOR PURPOSES OF DETERMINING HER ENTITLEMENT TO THE APPLICABLE TRAVEL ALLOWANCES. SHE ALSO ASSERTS THAT IT WOULD BE UNFAIR TO REQUIRE REIMBURSEMENT OF THOSE MONIES WHEN SHE WAS NOT OFFICIALLY NOTIFIED OF THE ADMINISTRATIVE CHANGE OF HER ACTUAL RESIDENCE UNTIL AFTER SHE COMPLETED HER TRAVEL. IN EFFECT MS. MARKRAY REQUESTS WAIVER OF THE ERRONEOUS PAYMENT ON THE GROUNDS OF EQUITY AND HER JUSTIFIABLE RELIANCE ON THE ERRONEOUS DETERMINATION REGARDING HER RESIDENCE.

SECTION 5728(A) OF TITLE 5 OF THE U.S.C. EMBODIES THE AUTHORITY FOR REIMBURSEMENT OF EMPLOYEE'S ROUND-TRIP TRAVEL EXPENSES TO THE UNITED STATES UPON COMPLETION OF A TOUR OF DUTY OVERSEAS.

"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL PAY FROM ITS APPROPRIATIONS THE EXPENSES OF ROUND-TRIP TRAVEL OF AN EMPLOYEE, AND THE TRANSPORTATION OF HIS IMMEDIATE FAMILY, BUT NOT HOUSEHOLD GOODS, FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO THE POST OF DUTY, AFTER HE HAS SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OUTSIDE THE CONTINENTAL UNITED STATES AND IS RETURNING TO HIS ACTUAL PLACE OF RESIDENCE TO TAKE LEAVE BEFORE SERVING ANOTHER TOUR OF DUTY AT THE SAME OR ANOTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES UNDER A NEW WRITTEN AGREEMENT MADE BEFORE DEPARTING FROM THE POST OF DUTY."

THIS OFFICE HAS CONSISTENTLY CONSTRUED THE ABOVE-CITED STATUTE AS PLACING THE RESPONSIBILITY FOR DETERMINING AN EMPLOYEE'S ACTUAL RESIDENCE ON THE ADMINISTRATIVE AGENCY CONCERNED. RAFAEL E. ARROYO, B-197205, MAY 16, 1980, AND CASES CITED THEREIN. UNDER THE STATUTE AND IMPLEMENTING REGULATION, FEDERAL PROPERTY MANAGEMENT REGULATIONS (FTR) (FPMR 101-7) (MAY 1973), THE LOCATION OF THE EMPLOYEE'S PLACE OF RESIDENCE FOR HOME LEAVE TRAVEL IS ESTABLISHED BY THE AGENCY AT THE TIME OF THE EMPLOYEE'S SELECTION TO THE OVERSEAS POST OF DUTY AND ON THE BASIS OF ALL THE AVAILABLE FACTS. FTR PARAGRAPH 2-1.5G(3)(A) AND (B). ONCE A DETERMINATION HAS BEEN MADE ON THE BASIS OF THE FACTS OF THE PARTICULAR CASE, THIS OFFICE WILL NOT ORDINARILY QUESTION ANY REASONABLE DETERMINATION OF THE AGENCY. 35 COMP.GEN. 244, 246 (1955).

ALTHOUGH MS. MARKRAY ARGUES THAT THE ADMINISTRATIVE DETERMINATION OF HER PLACE OF ACTUAL RESIDENCE CONTAINED IN HER RENEWAL AGREEMENT IS FINAL AND BINDING, THE APPLICABLE REGULATIONS DO NOT PRECLUDE AN AGENCY FROM CORRECTING ERRORS IN THE OVERSEAS ASSIGNMENT OR TRANSFER RECORDS OF AN EMPLOYEE WHEN IT IS LATER SHOWN CLEARLY THAT, IN FACT, THE PLACE OF THE EMPLOYEE'S ACTUAL RESIDENCE WAS OTHER THAN THE PLACE NAMED IN THE AGREEMENT AND RELATED PAPERS. 39 COMP.GEN. 337 (1959); FPMR 101 7, PARAGRAPH 2-1.5G(3)(C)(III). FOR AN AGENCY TO DO OTHERWISE WOULD BE INCONSISTENT WITH THE AGENCY'S LIMITED AUTHORITY UNDER 5 U.S.C. SEC. 5728(A) TO PAY AN EMPLOYEE'S ROUND-TRIP EXPENSES ONLY FROM THE DUTY STATION TO THE ACTUAL PLACE OF RESIDENCE.

IN SUPPORT OF THE REASONABLENESS OF THE ADMINISTRATIVE CHANGE IN MS. MARKRAY'S CASE, YOU HAVE SUBMITTED A DOCUMENT ENTITLED "DATA REQUIRED FOR PERMANENT CHANGE OF STATION TO OVERSEAS POSTS," DATED DECEMBER 4, 1973, WHEREIN MS. MARKRAY LISTED HER RESIDENCE AT THAT TIME AS WASHINGTON, D. C. IN ADDITION, YOU SUBMIT A COPY OF A MOVING COMPANY ESTIMATE DATED DECEMBER 6, 1973, WHICH FURTHER INDICATES THAT MS. MARKRAY PHYSICALLY RESIDED IN WASHINGTON, D. C., AT THE TIME OF HER SELECTION FOR TRANSFER OVERSEAS. EVIDENCE HAS BEEN SUBMITTED BY MS. MARKRAY WHICH DEMONSTRATES THAT HER ACTUAL PLACE OF RESIDENCE AT THIS TIME WAS SAN FRANCISCO, CALIFORNIA, OR ANY OTHER LOCATION. FURTHERMORE, SHE HAS NOT INDICATED WHY IT WAS ADMINISTRATIVELY DETERMINED IN THE FIRST INSTANCE THAT SAN FRANCISCO WAS HER ACTUAL PLACE OF RESIDENCE.

PARAGRAPH 2-1.5G(3)(B) OF FPMR 101-7 STATES THAT AN EMPLOYEE HAS THE RESPONSIBILITY FOR SUPPLYING THE INFORMATION NECESSARY TO SUPPORT THE CLAIMED PLACE OF ACTUAL RESIDENCE WHEN A DISPUTE ARISES WITH HIS OR HER AGENCY. AS A MATTER OF GENERAL GUIDANCE, SUBSECTION (II) OF PARAGRAPH 2- 1.5G(3)(C) OF THAT REGULATION INDICATES THAT THE PLACE WHERE AN EMPLOYEE PHYSICALLY RESIDED WHEN SELECTED FOR APPOINTMENT OR TRANSFER OVERSEAS IS PRESUMED TO BE THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE IN THE ABSENCE OF CIRCUMSTANCES REASONABLY INDICATING THAT ANOTHER LOCATION SHOULD BE DESIGNATED. AS WE FIND NOTHING IN THE RECORD WHICH REBUTS EITHER THE ABOVE-MENTIONED REGULATORY PRESUMPTION OR THE SUBMITTED EVIDENCE, BOTH OF WHICH CLEARLY INDICATE THAT WASHINGTON, D. C., WAS WHERE MS. MARKRAY PHYSICALLY RESIDED WHEN SELECTED FOR ASSIGNMENT OVERSEAS, WE FIND NO BASIS TO DISAGREE WITH YOUR DETERMINATION IN THIS REGARD.

TURNING TO MS. MARKRAY'S EQUITABLE ARGUMENTS WHICH, IN SUBSTANCE, SEEK A WAIVER OF THE $404.29 DEBT, WE CONCLUDE THAT THERE IS NO AUTHORITY UPON WHICH THE COLLECTION OF THIS DEBT MAY BE WAIVED OR COMPROMISED. ALTHOUGH IT IS UNFORTUNATE THAT AN ERRONEOUS DETERMINATION WAS INITIALLY RENDERED WHICH LED MS. MARKRAY TO BELIEVE SHE WAS ENTITLED TO TRAVEL EXPENSES IN EXCESS OF APPLICABLE STATUTORY AND REGULATORY AUTHORITY, THIS DETERMINATION IS NOT CONCLUSIVE. IT IS WELL ESTABLISHED THAT THE GOVERNMENT IS NEITHER BOUND NOR ESTOPPED BY THE ACTS OF ITS OFFICERS OR AGENTS WHO ENTER INTO ARRANGEMENTS OR AGREEMENTS TO DO OR CAUSE TO BE DONE WHAT THE LAW DOES NOT SANCTION OR AUTHORIZE. THEREFORE, ANY PAYMENTS DISBURSED ON THE BASIS OF SUCH AUTHORIZATIONS ARE SUBJECT TO COLLECTION. FREDERICK J. KILLIAN, B-196476, MAY 9, 1980.

FURTHERMORE, THIS DEBT IS NOT ELIGIBLE FOR WAIVER UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5584 (1976), AS IT INVOLVES THE OVERPAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES, A CATEGORY OF EXPENSES EXPRESSLY EXCLUDED BY THE LANGUAGE OF THE STATUTORY PROVISION. FINALLY, WE NOTE THAT THE COLLECTION OF THIS DEBT MAY NOT BE COMPROMISED, SUSPENDED, OR TERMINATED UNDER THE AUTHORITY OF THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 31 U.S.C. SEC. 951 ET SEQ. (1976). UNDER SECTION 952(B) OF THIS ACT, THE HEAD OF AN AGENCY IS AUTHORIZED TO COMPROMISE A CLAIM OR SUSPEND A COLLECTION ACTION UNDER CERTAIN PRESCRIBED CIRCUMSTANCES. WHERE, HOWEVER, THERE IS AN INDICATION THAT THE PARTY POSSESSES A PRESENT OR PROSPECTIVE ABILITY TO PAY THE DEBT, SUCH AS WHERE THE PARTY IS CURRENTLY EMPLOYED, THE AGENCY MUST ATTEMPT COLLECTION. ALFRED F. GENT, B-197121, JANUARY 23, 1980. AS THE RECORD IN THIS MATTER INDICATES THAT MS. MARKRAY IS CURRENTLY EMPLOYED IN THIS AGENCY, COLLECTION OF THE OVERPAYMENT MAY BE ACCOMPLISHED, IF NECESSARY, BY WAY OF ADMINISTRATIVE SET-OFF OF THE MONIES PAYABLE TO HER. 5 U.S.C. SEC. 5514 (1976); STEPHEN E. GOLDBERT, B-197495, MARCH 18, 1980.

ON THE BASIS OF THE RECORD BEFORE US, WE FIND NO REASON TO DISAGREE WITH YOUR DETERMINATION THAT WASHINGTON, D. C., WAS MS. MARKRAY'S "ACTUAL PLACE OF RESIDENCE" WITHIN THE MEANING OF 5 U.S.C. SEC. 5728(A). ACCORDINGLY, THE PAYMENTS TO MS. MARKRAY IN EXCESS OF HER STATUTORY ENTITLEMENT SHOULD BE RECOVERED UNLESS SHE IS ABLE TO PROVIDE ADDITIONAL INFORMATION TO ESTABLISH SAN FRANCISCO AS HER ACTUAL PLACE OF RESIDENCE.