B-201453, SEP 29, 1981

B-201453: Sep 29, 1981

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DIGEST: FORMER EMPLOYEE OF IRS REEMPLOYED BY AGENCY WITHIN 1 YEAR AT A DIFFERENT GEOGRAPHICAL LOCATION WAS ERRONEOUSLY AUTHORIZED TRANSPORTATION EXPENSES AND GOVERNMENT PAID COSTS OF TRANSPORTING EMPLOYEE'S HOUSEHOLD GOODS TO NEW DUTY STATION. EMPLOYEE MUST REPAY AMOUNT ERRONEOUSLY PAID SINCE AT TIME OF REEMPLOYMENT HE WAS NOT AN EMPLOYEE OF A FEDERAL AGENCY. HE WAS NOT SEPARATED FROM IRS BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION UNDER 5 U.S.C. HE WAS NOT AN APPOINTEE TO A MANPOWER SHORTAGE POSITION UNDER 5 U.S.C. GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ERRONEOUS AUTHORIZATION AND ADVICE OF ITS AGENTS. H. MAXWELL - RELOCATION EXPENSES: THIS DECISION IS IN RESPONSE TO A REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION (NTEU).

B-201453, SEP 29, 1981

DIGEST: FORMER EMPLOYEE OF IRS REEMPLOYED BY AGENCY WITHIN 1 YEAR AT A DIFFERENT GEOGRAPHICAL LOCATION WAS ERRONEOUSLY AUTHORIZED TRANSPORTATION EXPENSES AND GOVERNMENT PAID COSTS OF TRANSPORTING EMPLOYEE'S HOUSEHOLD GOODS TO NEW DUTY STATION. EMPLOYEE MUST REPAY AMOUNT ERRONEOUSLY PAID SINCE AT TIME OF REEMPLOYMENT HE WAS NOT AN EMPLOYEE OF A FEDERAL AGENCY; HE WAS NOT SEPARATED FROM IRS BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION UNDER 5 U.S.C. SEC. 5724A (1976); HE WAS NOT AN APPOINTEE TO A MANPOWER SHORTAGE POSITION UNDER 5 U.S.C. SEC. 5723 (1976); OVERPAYMENTS OF TRAVEL AND TRANSPORTATION EXPENSES MAY NOT BE WAIVED UNDER 5 U.S.C. SEC. 5584 (1976); AND GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ERRONEOUS AUTHORIZATION AND ADVICE OF ITS AGENTS.

FRANK W. H. MAXWELL - RELOCATION EXPENSES:

THIS DECISION IS IN RESPONSE TO A REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), ON BEHALF OF MR. FRANK W. H. MAXWELL, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), DEPARTMENT OF THE TREASURY, FOR WAIVER OF EXPENSES INCURRED BY THE GOVERNMENT IN TRANSPORTING MR. MAXWELL'S HOUSEHOLD GOODS FROM CHICAGO, ILLINOIS, TO DETROIT, MICHIGAN. THIS DECISION HAS BEEN HANDLED AS A LABOR-RELATIONS MATTER UNDER OUR PROCEDURES CONTAINED IN 4 C.F.R. PART 22 (1981) (ORIGINALLY PUBLISHED AS 4 C.F.R. PART 21 AT 45 FED.REG. 55689-92, AUGUST 21, 1980). PURSUANT TO OUR REGULATIONS, THE IRS HAS BEEN SERVED WITH A COPY OF THE DOCUMENTS SUBMITTED TO THIS OFFICE BY NTEU. THE AGENCY HAS NOT FILED A WRITTEN RESPONSE WITH THIS OFFICE. 4 C.F.R. SEC. 21.5(B) (1980).

THE ISSUE PRESENTED HERE IS WHETHER AN EMPLOYEE IS ELIGIBLE TO RECEIVE PER DIEM AND MOVING EXPENSES FOR HIMSELF AND HIS FAMILY AFTER A BREAK IN GOVERNMENT SERVICE. FOR THE REASONS SET FORTH BELOW, WE CONCLUDE THAT SUCH PAYMENT IS NOT PROPER.

MR. MAXWELL WAS FORMERLY EMPLOYED BY THE IRS AT THE IRS DATA CENTER IN DETROIT, MICHIGAN. HE WAS LATER SELECTED FOR A POSITION AT THE MIDWESTERN REGIONAL OFFICE AND RELOCATED FROM DETROIT TO CHICAGO, ILLINOIS. SEPTEMBER 1979, THE EMPLOYEE RESIGNED HIS POSITION WITH THE IRS AND WAS ENGAGED IN BUSINESS IN THE PRIVATE SECTOR. AFTER APPROXIMATELY 7 MONTHS OF NON-GOVERNMENT EMPLOYMENT, HE APPLIED FOR AND WAS AGAIN SELECTED TO FILL A VACANT POSITION AT THE DATA CENTER IN DETROIT. AT THE TIME HE WAS HIRED FOR THE POSITION, HE INQUIRED AS TO WHETHER HE WAS ELIGIBLE FOR REIMBURSEMENT OF MOVING EXPENSES. AN IRS PERSONNEL TECHNICIAN INFORMED MR. MAXWELL THAT HE WAS ELIGIBLE TO RECEIVE PER DIEM AND REIMBURSEMENT OF RELOCATION EXPENSES FOR HIMSELF AND HIS FAMILY. MR. MAXWELL THEN ACCEPTED THE POSITION AT THE DATA CENTER.

THE DATA CENTER INITIATED THE TRANSPORTATION OF MR. MAXWELL'S HOUSEHOLD GOODS WITH THE UNITED STATES GENERAL SERVICES ADMINISTRATION IN MARCH 1980. A GOVERNMENT BILL OF LADING WAS THEN ISSUED AND THE HOUSEHOLD EFFECTS WERE TRANSPORTED TO DETROIT AT GOVERNMENT EXPENSE. IN THE SAME MONTH, THE DIRECTOR OF THE DATA CENTER SIGNED THE AUTHORIZATION FOR MOVING EXPENSES, FORM 4253, UNDER THE ERRONEOUS ASSUMPTION THAT MR. MAXWELL WAS BEING REASSIGNED FROM THE IRS REGIONAL OFFICE IN CHICAGO TO THE DATA CENTER IN DETROIT. ALSO, UNDER IRS REGULATIONS IN EFFECT AT THAT TIME, THE DIRECTOR OF THE DATA CENTER DID NOT HAVE THE AUTHORITY TO APPROVE PAYMENT OF EXPENSES FOR A NEW EMPLOYEE'S MOVE TO HIS FIRST POST OF DUTY. THE IRS HAS PAID THE CARRIER THE COST, $2,568.66, OF TRANSPORTING MR. MAXWELL'S HOUSEHOLD GOODS FROM CHICAGO TO DETROIT AND NOW SEEKS REIMBURSEMENT OF SUCH EXPENSES FROM THE EMPLOYEE.

IN THE EVENT WAIVER OF THE OVERPAYMENT IS NOT GRANTED, THE NTEU, ON BEHALF OF MR. MAXWELL, REQUESTS THAT HE BE ALLOWED TO REPAY THE IRS ON AN INSTALLMENT BASIS. COLLECTION OF THE OVERPAYMENT HAS BEEN HELD IN ABEYANCE PENDING A DECISION BY THE COMPTROLLER GENERAL.

SECTION 5724, TITLE 5, U.S.C. (1976), AUTHORIZES REIMBURSEMENT OF THE EXPENSES OF TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD GOODS WHEN THE EMPLOYEE IS TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION OR AGENCY TO ANOTHER FOR PERMANENT DUTY. HOWEVER, A FORMER EMPLOYEE, SUCH AS MR. MAXWELL, MUST HAVE BEEN SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION. FURTHER, THE EMPLOYEE MUST BE REEMPLOYED WITHIN 1 YEAR AFTER THE SEPARATION AT A DIFFERENT GEOGRAPHICAL LOCATION IN ORDER TO BE AUTHORIZED AND PAID THE EXPENSES OF TRANSPORTATION OF HIS HOUSEHOLD EFFECTS AS THOUGH HE HAD BEEN TRANSFERRED IN THE INTEREST OF THE GOVERNMENT WITHOUT A BREAK IN SERVICE. SEE 5 U.S.C. SEC. 5724AC) (1976). ALSO, APPOINTEES TO MANPOWER SHORTAGE POSITIONS ARE ENTITLED TO REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES FROM THEIR PLACES OF RESIDENCE AT THE TIME OF SELECTION OR ASSIGNMENT TO THEIR DUTY STATION IN ACCORDANCE WITH 5 U.S.C. SEC. 5723 (1976).

AT THE TIME MR. MAXWELL WAS REEMPLOYED BY THE IRS, HE WAS NOT AN EMPLOYEE OF A FEDERAL AGENCY. EVEN THOUGH HE WAS REEMPLOYED BY THE IRS WITHIN 1 YEAR AFTER SEPARATION, THE RECORD BEFORE US DOES NOT SHOW THAT HE WAS SEPARATED FROM THE IRS BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION. FURTHER, THE RECORD DOES NOT DISCLOSE THAT THE CLAIMANT WAS AN APPOINTEE TO A MANPOWER SHORTAGE POSITION. CONSEQUENTLY, THE PREVIOUSLY CITED STATUTORY PROVISIONS DO NOT APPLY HERE.

MR. MAXWELL'S REPRESENTATIVE HAS ALSO REQUESTED WAIVER OF THE INDEBTEDNESS UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5584 (1976). SECTION 5584(A) OF THE STATUTE PROVIDES THAT CERTAIN CLAIMS OF THE UNITED STATES AGAINST A PERSON INVOLVING ERRONEOUS PAYMENTS OF PAY MAY BE WAIVED. HOWEVER, THE STATUTE EXPRESSLY EXCLUDES TRAVEL AND TRANSPORTATION EXPENSES FROM CONSIDERATION. SEE ALSO 4 C.F.R. SEC. 91.2(C) (1980). THEREFORE, THERE IS NO LEGAL AUTHORITY UPON WHICH MR. MAXWELL'S DEBT MAY BE WAIVED.

IN REGARD TO LACK OF AUTHORITY ON THE PART OF THE DISTRICT DIRECTOR OF THE IRS DATA CENTER TO AUTHORIZE MOVING EXPENSES, AND THE ERRONEOUS INFORMATION GIVEN TO MR. MAXWELL BY THE IRS PERSONNEL OFFICIAL, IT IS A WELL-SETTLED RULE OF LAW THAT THE GOVERNMENT CANNOT BE BOUND BEYOND THE ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR BY REGULATIONS, AND THIS IS SO EVEN THOUGH THE AGENT MAY HAVE BEEN UNAWARE OF THE LIMITATION OF HIS AUTHORITY. FURTHER, THE GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ADVICE GIVEN BY ONE OF ITS OFFICIALS IF THAT ADVICE IS ERRONEOUS, AND ANY PAYMENTS MADE ON THE BASIS OF SUCH ERRONEOUS ADVICE OR AUTHORIZATION ARE RECOVERABLE. JAMES A. SCHULTZ, 59 COMP.GEN. 28 (1979), AND CASES CITED THEREIN.

ACCORDINGLY, THE OVERPAYMENT MADE BY THE GOVERNMENT ON BEHALF OF MR. MAXWELL IN TRANSPORTING HIS HOUSEHOLD EFFECTS FROM CHICAGO, ILLINOIS, TO DETROIT, MICHIGAN, MAY NOT BE WAIVED AND SUCH OVERPAYMENT SHOULD BE RECOVERED.

MR. MAXWELL'S REQUEST TO MAKE REPAYMENT ON AN INSTALLMENT BASIS SHOULD BE DIRECTED TO HIS EMPLOYING AGENCY SINCE SUCH MODE OF PAYMENT IS AUTHORIZED BY 5 U.S.C. SEC. 5514 (1976), SUBJECT TO IRS REGULATIONS.