B-203750(1), AUG 7, 1981

B-203750(1): Aug 7, 1981

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARE PRESENTED TO THE GAO IN THE FORM OF PRIVATE RELIEF LEGISLATION BY THE OFFICE OF MANAGEMENT AND BUDGET (OMB). DIRECTOR OFFICE OF MANAGEMENT AND BUDGET: ASSISTANT DIRECTOR FOR LEGISLATIVE REFERENCE THIS ACTION IS IN RESPONSE TO YOUR LEGISLATIVE REFERRAL MEMORANDUM OF JULY 8. AFTER PAYMENT WAS MADE. THE DEPARTMENT DETERMINED THAT AUTHORITY FOR PAYMENT OF SUCH EXPENSES DID NOT EXIST AND NOTIFIED THOSE INDIVIDUALS THAT THEY WERE INDEBTED TO THE UNITED STATES FOR THE AMOUNTS ERRONEOUSLY PAID. IN LIGHT OF THE FACT THAT THE DEBTS ARE NOT SUBJECT TO WAIVER. WE HAVE NO OBJECTION TO THE PROPOSED PRIVATE RELIEF BILLS. THIS OFFICE HAS HELD THAT AN EMPLOYEE WHO TRANSFERS FROM THE POSTAL SERVICE TO AN EXECUTIVE AGENCY IS NOT ELIGIBLE FOR REIMBURSEMENT OF RELOCATION EXPENSES.

B-203750(1), AUG 7, 1981

DIGEST: WHERE CASES SIMILAR TO THE SUBJECT MATTER OF RECOMMENDATION TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C 236, ARE PRESENTED TO THE GAO IN THE FORM OF PRIVATE RELIEF LEGISLATION BY THE OFFICE OF MANAGEMENT AND BUDGET (OMB), GAO SUGGESTS THAT OMB GIVE CONSIDERATION TO GENERAL LEGISLATION IF THE NUMBER OF SIMILAR CASES WARRANTS IT.

DAVID A. STOCKMAN, DIRECTOR OFFICE OF MANAGEMENT AND BUDGET:

ASSISTANT DIRECTOR FOR LEGISLATIVE REFERENCE

THIS ACTION IS IN RESPONSE TO YOUR LEGISLATIVE REFERRAL MEMORANDUM OF JULY 8, 1981, IN WHICH YOU REQUEST OUR VIEWS ON THE DEPARTMENT OF LABOR'S PRIVATE RELIEF BILLS FOR THE RELIEF OF MESSRS. JACK C. KEAN, ROY H. REDMOND, GREGORY B. DYMOND, SAMUEL K. GIBBONS, AND JAMES L. NICHOLS. THIS LEGISLATION WOULD RELIEVE THESE INDIVIDUALS FROM DEBTS OWED THE UNITED STATES REPRESENTING OVERPAYMENTS OF TRAVEL AND RELOCATION EXPENSES ARISING FROM THEIR TRANSFERS FROM THE UNITED STATES POSTAL SERVICE TO THE DEPARTMENT OF LABOR. THESE INDIVIDUALS INCURRED RELOCATION EXPENSES ON THE BASIS OF ASSURANCES THAT THEY WOULD BE PAID BY THE DEPARTMENT OF LABOR. HOWEVER, AFTER PAYMENT WAS MADE, THE DEPARTMENT DETERMINED THAT AUTHORITY FOR PAYMENT OF SUCH EXPENSES DID NOT EXIST AND NOTIFIED THOSE INDIVIDUALS THAT THEY WERE INDEBTED TO THE UNITED STATES FOR THE AMOUNTS ERRONEOUSLY PAID. WE CONCUR WITH THE DEPARTMENT'S DETERMINATION OF INDEBTEDNESS, AND IN LIGHT OF THE FACT THAT THE DEBTS ARE NOT SUBJECT TO WAIVER, COMPROMISE OR TERMINATION, WE HAVE NO OBJECTION TO THE PROPOSED PRIVATE RELIEF BILLS.

AS THE DEPARTMENT HAS NOTED, THIS OFFICE HAS HELD THAT AN EMPLOYEE WHO TRANSFERS FROM THE POSTAL SERVICE TO AN EXECUTIVE AGENCY IS NOT ELIGIBLE FOR REIMBURSEMENT OF RELOCATION EXPENSES. MATTER OF JAMES A. SCHULTZ, 59 COMP.GEN. 28 (1979); MATTER OF POSTAL SERVICE EMPLOYEES, 58 COMP.GEN. 132 (1978). THAT RULE IS PREDICATED UPON OUR CONSTRUCTION OF 5 U.S.C. 104, AS AMENDED, WHICH EXCLUDES THE POSTAL SERVICE FROM THE DEFINITION OF "EXECUTIVE AGENCY." AS A RESULT, THE STATUS OF EMPLOYEES TRANSFERRING FROM THE POSTAL SERVICE TO EXECUTIVE AGENCIES IS ANALOGOUS TO THAT OF NEW APPOINTEES WHO ARE NOT ELIGIBLE FOR REIMBURSEMENT OF TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES UNDER 5 U.S.C. 5724 AND 5724A.

THE ERRONEOUS OVERPAYMENTS OF RELOCATION EXPENSES TO THE NAMED INDIVIDUALS ARE, THEREFORE, DEBTS WHICH ARE OWED TO THE UNITED STATES. THE FACT THAT THESE PERSONS WERE ERRONEOUSLY ADVISED THAT THEY WERE ENTITLED TO REIMBURSEMENT OF RELOCATION EXPENSES DOES NOT ESTOP THE GOVERNMENT FROM COLLECTION OF THOSE DEBTS. SEE MATTER OF JOSEPH PRADARITS, 56 COMP.GEN. 131 (1976). RECOVERY IS REQUIRED UNLESS LEGAL AUTHORITY EXISTS FOR WAIVER OF THE DEBTS UNDER THE PROVISIONS OF 5 U.S.C. 5584, OR FOR COMPROMISE OR TERMINATION OF COLLECTION ACTION BY THE DEPARTMENT OF LABOR UNDER THE PROVISIONS OF 31 U.S.C. 952(B). HOWEVER, NEITHER AUTHORITY IS AVAILABLE IN THESE CIRCUMSTANCES. THE WAIVER PROVISIONS SPECIFICALLY EXCLUDE RELOCATION EXPENSES FROM ELIGIBILITY FOR WAIVER, AND TERMINATION OR COMPROMISE OF COLLECTION ACTION IS NOT AUTHORIZED WHERE THERE IS A PRESENT OR PROSPECTIVE ABILITY TO PAY, SUCH AS CONTINUED EMPLOYMENT. SEE 59 COMP.GEN., SUPRA, AT 30.

SUBSEQUENT TO OUR DECISION 59 COMP.GEN. 28 SUPRA, WE RECOMMENDED UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, THAT THE CONGRESS PROVIDE RELIEF FOR THE EMPLOYEE INVOLVED IN THAT CASE. AS A RESULT, PRIVATE LAW 96-115, WAS APPROVED ON DECEMBER 22, 1980, GRANTING RELIEF TO THAT EMPLOYEE. AT THE TIME OF THE RECOMMENDATION, WE DID NOT ANTICIPATE THAT OTHER SIMILAR CASES WOULD ARISE AND LIMITED OUR RECOMMENDATION TO THE INDIVIDUAL INVOLVED. AS A RESULT, WE HAVE NO OBJECTION TO THE PRIVATE RELIEF LEGISLATION PROPOSED BY THE DEPARTMENT OF LABOR. ADDITIONALLY, WE HAVE BECOME AWARE THAT NUMEROUS SIMILAR CASES EXIST. IF THAT IS THE CASE, GENERAL LEGISLATION MAY BE MORE APPROPRIATE, AT LEAST IN CASES ARISING PRIOR TO THE DISSEMINATION OF OUR INITIAL DECISION 58 COMP.GEN. 132 (1978), HOLDING THAT THE POSTAL SERVICE WAS NOT AN EXECUTIVE AGENCY, AND THEREBY PRECLUDING REIMBURSEMENT OF RELOCATION EXPENSES FOR POSTAL SERVICE EMPLOYEES TRANSFERRING TO EXECUTIVE AGENCIES.