B-243327, Sep 16, 1991

B-243327, Sep 16, 1991

DIGEST

William F. Shea:

Mr. Shea was selected for a position in the Office of the Regional Administrator, New England Regional Office, Burlington, Massachusetts, that was in a manpower shortage category. A Travel Order For Permanent Change of Station dated May 16, 1989, form Mr. Shea's home in Grand Forks, North Dakota, to Burlington, Massachusetts, was incorrectly completed approving temporary quarters subsistence expenses, per diem for family, cost of house-hunting trip, miscellaneous expense allowance, and real estate expenses. Mr. Shea was not entitled to the allowances because he was not an employee making a change in duty station, but a new appointee traveling to his first duty station.

Based on the incorrect authorization, Mr. Shea was erroneously advanced $2,500 for temporary quarters subsistence expenses to which he was not entitled and for other relocation expenses (some of which he was entitled to ) on June 7, 1989. However, on July 26, 1989, the Accounting Division, FAA Eastern Region, issued an internal memorandum stating that while Mr. Shea did qualify as a manpower shortage category appointee, only certain items were reimbursable under that type of appointment, which did not include per diem for family, temporary quarters subsistence expenses, or real estate expenses. Mr. Shea reports that a copy of this memorandum was provided to him on August 9, 1989. The FAA then withdrew the services of its relocation contractor which had begun the arrangements for sale of his residence in Grand Forks, and consequently Mr. Shea has rented out that residence.

Mr. Shea claimed full change of station allowances, including a househunting trip, temporary quarters subsistence expense allowance, and use of the FAA's relocation contractor which he had been advised would purchase his Grand Forks home from him. He indicated that his acceptance of the position with the FAA in Boston was based in substantial part on the FAA's advice that these allowances were authorized. Our Claims Group, however, determined that Mr. Shea is not entitled to the allowances he seeks, notwithstanding the erroneous authorization. In doing so, the Claims Group cited 5 U.S.C. Sec. 5723, which provides the authority for paying the travel expenses of new appointee to a manpower shortage position and the expenses of the transportation of the appointee's household goods and immediate family. That provision does not authorize reimbursement for the sale of a house (or use of the agency's relocation contractor in lieu thereof), a househunting trip or temporary quarters subsistence expenses. The Claims Group noted that the fact that Mr. Shea was provided an erroneous authorization by the FAA does not permit payment of expenses not authorized by law, and the government is not estopped from repudiating the erroneous authorization.

On appeal Mr. Shea's attorney states that waiver of the erroneous travel advance is being pursued through the agency, and the relief Mr. Shea is pursuing with us is that he be authorized use of the FAA's relocation contractor in connection with resolving the sale of his home in Grand Forks. He states that Mr. Shea made the move to Massachusetts based on the FAA's representation that this service would be provided, and to abandon him now creates a personal and financial hardship for him. The attorney argues that authority for us to authorize this service is clearly present, and he cites our referral to Congress of a somewhat similar case, Norman R. Ricks, B-237667, April 27, 1990, which he says the Claims Group ignored.

Use of Relocation Services

As the Claims Group determined, there is no legal authority for us to authorize Mr. Shea the use of the FAA's relocation service to sell his house. The statutory authority applicable to that service (5 U.S.C. Sec 5724a and 5724c) does not encompass new appointees to manpower shortage positions. See also Federal Travel Regulations, 41 C.F.R. Sec 302-1.11(d) (1991); and John G. Teele, 65 Comp.Gen. 679 (1986). The fact that Mr. Shea was erroneously authorized use of the service does not provide a legal basis for the agency or our Office to authorize its use. John H. Teele, 65 Comp.Gen. supra, at 681. It is well settled that the government is not bound by the erroneous advice of its agents. See OPM v. Richmond, 110 S. Ct. 2465 (1990), and Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947).

In the case which Mr. Shea's attorney cites as authority for us to authorize the relocation service, Norman R. Ricks, B-237667, April 27, 1990, the employee was also a manpower shortage appointee who had been erroneously authorized reimbursement of residence sale expenses. There, the employee was not seeking the use of an agency's relocation contractor, but was seeking reimbursement of over $6,000 in expenses he had incurred before being advised that the authorization was erroneous. We clearly recognized that there was no legal basis for us to allow the employee's claim, and we did not do so. However, pursuant to the Meritorious Claims Act, 31 U.S.C. Sec. 3702 (d) (1988), /3/ we recommend the claim for consideration by Congress for enactment of specific statutory relief, as we have done in some other similar cases where the employee has actually incurred expenses based on an erroneous authorization. E.g., John H. Teele, supra.

In Mr. Shea's case, however, he was advised that the authorization was erroneous prior to incurring any otherwise reimbursable expenses related to the sale of a residence. We understand that he has not sold his home in Grand Forks, but has rented it out. While we recognize the inconvenience this caused Mr. Shea, in our view this does not warrant our reporting the matter to Congress under the Meritorious Claims Act.

Accordingly, the Claims Group's action on this matter was correct and is sustained.

Waiver of Erroneous Travel Advance

Subsequent to our receipt of Mr. Shea's appeal, we received the FAA's report on and recommendation for waiver of the portion of his $2,500 travel advance applied to other erroneously authorized expenses. /4/

We have held a travel advance payment to be erroneous and subject to waiver under 5 U.S.C. Sec. 5584 (1988) to the extent it was made to cover expenses erroneously authorized and the employee actually spent the advance in reliance on the erroneous travel orders. Major Kenneth M. Dieter, 67 Comp.Gen. 496 (1988); Rafinder N. Khanna, 67 Comp.Gen. 493 (1988). As a general rule, we presume that an employee who incurs expenses erroneously authorized by travel orders has done so in reliance on the orders. John B. Osborn III, B-231146, Mar. 10, 1989.

Further, waiver is only appropriate to the extent that the employee is indebted to the government for repayment of the amounts advanced. So, if the employee has both legitimate expenses and expenses which should not have been authorized, the travel advance must first be applied against the legitimate expenses. Any outstanding amount of the advance may then be applied against the erroneously authorized expenses and that amount could be considered for waiver. Fajinder N. Khanna, 67 Comp.Gen. at 495. See also John B. Osborn III, B-231146, supra.

According to the agency report and the voucher submitted by Mr. Shea, he incurred temporary quarters subsistence expenses in the total amount of $1,531.30 from May 21, through Jun 7, 1989, of which $1,364 was the maximum allowable had the expense qualified for reimbursement. Additionally, Mrs. Shea incurred erroneously authorized househunting expenses in the amount of $558.50 during May 24-30, 1989. The agency recommends waiver of the travel advance in excess of his reimbursable relocation expenses since Mr. Shea incurred these other expenses in reliance on erroneous orders, the error was completely the fault of the New England Regional Office, and Mr. Shea did not contribute to the mistake.

In the present case, there is no dispute that Mr. Shea had legitimate expenses of $692, and therefore his travel advance of $2,500 is reduced to an outstanding debt of $1,808. We may consider for waiver the entire $1,808 as an erroneous payment since it was made to cover the temporary quarters and househunting expenses erroneously authorized and incurred by Mr. Shea in detrimental reliance on the erroneous order which he had no reason to know was improper when he incurred these expenses.

Accordingly, Mr. Shea's debt in the amount of $1,808 is hereby waived.

/1/ Terrence D. O'Hare, Esq., of McGrath, North, Mullen & Kratz, P.C.

/2/ Z-2862280, December 5, 1990.

/3/ The Meritorious Claims Act provides that when a claim against the United States is filed in the General Accounting Office which may not be lawfully adjusted by use of an appropriation, but which claim in our judgment contains such elements of legal liability or equity as to be deserving of the consideration of Congress, this Office shall submit it to Congress with our recommendation.

/4/ Since Mr. Shea's debt exceeds $500, it was necessary for the agency to refer the matter here for waiver consideration. 5 U.S.C. Sec 5584(a) (1988).