B-215154, NOV 29, 1984

B-215154, NOV 29, 1984

ESTOPPEL - AGAINST GOVERNMENT - NOT ESTABLISHED - PRIOR ERRONEOUS ADVICE, CONTRACT ACTIONS, ETC. DIGEST: 1. EMPLOYEE VOLUNTARILY RESIGNED AFTER BEING NOTIFIED THAT HE WAS TO SEPARATED IN A REDUCTION-IN-FORCE (RIF). APPROXIMATELY 15 MONTHS LATER HE WAS REEMPLOYED BY A DIFFERENT AGENCY IN A DIFFERENT LOCATION. SINCE HE DID NOT MEET STATUTORY REQUIREMENT OF 5 U.S.C. SEC. 5724AC) (1982) THAT HE BE REEMPLOYED WITHIN 1 YEAR OF SEPARATION IN ORDER TO BE ELIGIBLE FOR REIMBURSEMENT OF RELOCATION EXPENSES BECAUSE HE WAS REEMPLOYED BY THE GOVERNMENT FOLLOWING A RIF, HE MAY NOT BE REIMBURSED. NEITHER AGENCY REGULATION NOR AGENCY OFFICIAL CAN WAIVE OR MODIFY STATUTORILY IMPOSED 1- YEAR LIMIT. OFFICERS AND EMPLOYEES - REDUCTION-IN-FORCE - ENTITLEMENT TO TRANSFER EXPENSES 2. AGENCY UNINTENTIONALLY GAVE ERRONEOUS ADVICE TO EMPLOYEE ON WHICH HE RELIED AND ACTED IN GOOD FAITH. HOWEVER, SINCE FEDERAL EMPLOYEES ARE APPOINTED AND SERVE ONLY IN ACCORDANCE WITH THE APPLICABLE STATUTES AND REGULATIONS, THE ORDINARY PRINCIPLES OF CONTRACT LAW DO NOT APPLY, AND ESTOPPEL IS NOT AVAILABLE AGAINST THE GOVERNMENT. THUS, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT RESPONSIBLE FOR THE ERRONEOUS ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ACCORDINGLY, ERRONEOUS ADVICE CANNOT FORM THE BASIS FOR PAYMENT OF THE EMPLOYEE'S CLAIM.

JAY L. HAAS - RELOCATION COSTS - REEMPLOYMENT AFTER REDUCTION-IN FORCE:

MR. THOMAS M. GERNHOFER, ASSISTANT DIRECTOR FOR ADMINISTRATION, MINERALS MANAGEMENT SERVICE (MMS), UNITED STATED DEPARTMENT OF THE INTERIOR HAS REQUESTED AN ADVANCE DECISION AS TO THE ELIGIBILITY OF AN MMS EMPLOYEE TO BE REIMBURSED UNDER 5 U.S.C. SEC. 5724AC) (1982) FOR CLOSING COSTS INCURRED IN A RELOCATION FROM ALBUQUERQUE, NEW MEXICO, TO DENVER, COLORADO. FOR THE FOLLOWING REASONS, WE FIND THAT THE EMPLOYEE IS NOT ELIGIBLE FOR REIMBURSEMENT UNDER THIS STATUTE.

THE EMPLOYEE, MR. JAY L. HAAS, VOLUNTARILY RESIGNED ON AUGUST 1, 1981, FROM A POSITION WITH THE UNITED STATES DEPARTMENT OF TRANSPORTATION IN PUEBLO, COLORADO, AFTER RECEIVING A REDUCTION-IN FORCE (RIF) NOTICE DATED JULY 24, 1981, WITH A SPECIFIC RELEASE DATE OF SEPTEMBER 29, 1981. WHEN MMS OFFICIALS FIRST CONTACTED MR. HAAS IN JULY 1982 ABOUT EMPLOYMENT WITH INTERIOR, HE WAS EMPLOYED BY THE UNIVERSITY OF NEW MEXICO. AT THAT TIME MMS WAS ENGAGED IN A MAJOR REORGANIZATION WHICH CONTRIBUTED TO A DELAY IN A FORMAL OFFER OF EMPLOYMENT TO MR. HAAS. ON OCTOBER 13, 1982, MMS OFFERED MR. HAAS EMPLOYMENT. SINCE THE OFFER MADE NO MENTION OF MOVING EXPENSES, MR. HAAS TOLD MMS THAT HE COULD NOT ACCEPT THE POSITION UNLESS ALL RELOCATION EXPENSES NORMALLY ALLOWED A PERMANENT GOVERNMENT EMPLOYEE TRANSFERRING FROM ONE PERMANENT DUTY STATION TO ANOTHER WOULD BE PAID.

CERTAIN MMS EMPLOYEES APPARENTLY INFORMED MR. HAAS IN A TELEPHONE CONVERSATION ON NOVEMBER 2, 1982, THAT THIS WOULD BE DONE. ADDITIONALLY, THE ASSOCIATE DIRECTOR FOR ROYALTY MANAGEMENT, OF THE MMS, SENT MR. HAAS A LETTER DATED NOVEMBER 5, 1982, WHICH PURPORTED TO APPROVE "MOVING EXPENSES AS PERMITTED BY REGULATION FOR AN EMPLOYEE IN A RIF SITUATION," AND PURPORTED TO EXTEND THE 1-YEAR LIMITATION IMPOSED BY 5 U.S.C. SEC. 5724AC) (1982) WITHIN WHICH EMPLOYEES WHO HAD BEEN SEPARATED BY RIFS OR TRANSFERS OF FUNCTIONS MUST BE REEMPLOYED BY THE GOVERNMENT IN ORDER TO BE ELIGIBLE FOR RELOCATION EXPENSES. MR. HAAS THEN ACCEPTED THE POSITION WITH MMS IN DENVER, INCURRED RELOCATION EXPENSES COULD BE PAID, AND THAT THE 1-YEAR PERIOD COULD BE EXTENDED.

AFTER MR. HAAS REPORTED FOR DUTY WITH MMS ON NOVEMBER 15, 1982, HE FILED AN INITIAL CLAIM. AT THIS POINT THE RECORD SUPPLIED TO US BECOMES UNCLEAR AND IS INCOMPLETE AS TO THE SPECIFICS OF THIS INITIAL CLAIM. THIS INITIAL CLAIM APPEARS TO HAVE BEEN FOR $2,047.80 AND COVERED ONLY TRANSPORTATION, PER DIEM, AND TEMPORARY QUARTERS SUBSISTENCE EXPENSES OF MR. HAAS AND HIS SPOUSE, AND TRANSPORTATION OF HOUSEHOLD GOODS. THE INTERIOR FINANCE OFFICE REVIEWED IT, BUT ALLOWED ONLY $160.40, APPARENTLY ON THE BASIS THAT MR. HAAS WAS ONLY ENTITLED TO THIS LESSER AMOUNT FOR EXPENSES DUE TO HIS STATUS AS A NEW APPOINTEE TO A POSITION FOR WHICH THERE IS A MANPOWER SHORTAGE UNDER 5 U.S.C. SEC. 5723(A) (1982).

WE WILL TREAT THE REQUEST FOR AN ADVANCE DECISION BEFORE US AS A REQUEST FROM THE HEAD OF AN AGENCY UNDER 31 U.S.C. SEC. 3529(A)(1) (1982), ALSO COVERING THE ELIGIBILITY OF MR. HAAS TO BE REIMBURSED FOR AN ADDITIONAL $8,575.51 IN CLOSING COSTS INCURRED INCIDENT TO THE SALE OF HIS FORMER RESIDENCE UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5724AC) (1982). THIS STATUTE PROVIDES THAT:

"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, A FORMER EMPLOYEE SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO WITHIN 1 YEAR AFTER THE SEPARATION IS REEMPLOYED BY A NONTEMPORARY APPOINTMENT AT A DIFFERENT GEOGRAPHICAL LOCATION FROM THAT WHERE THE SEPARATION OCCURRED MAY BE ALLOWED AND PAID THE EXPENSES AUTHORIZED BY SECTIONS 5724, 5725, 5726(B), AND 5727 OF THIS TITLE, AND MAY RECEIVE THE BENEFITS AUTHORIZED BY SUBSECTIONS (A) AND (B) OF THIS SECTION, IN THE SAME MANNER AS THOUGH HE HAD BEEN TRANSFERRED IN THE INTEREST OF THE GOVERNMENT WITHOUT A BREAK IN SERVICE TO THE LOCATION OR REEMPLOYMENT FROM THE LOCATION WHERE SEPARATED." SECTION 5724(C) IMPOSES AN ABSOLUTE REQUIREMENT THAT THE PERSON BE REEMPLOYED BY THE GOVERNMENT "WITHIN 1 YEAR AFTER THE SEPARATION," AND MR. HAAS WAS NOT REEMPLOYED WITHIN THE TIME PERIOD SET FORTH BY STATUTE. SUCH A STATUTORY TIME LIMIT IS CLEARLY NOT SUSCEPTIBLE TO WAIVER OR MODIFICATION BY AGENCY REGULATION OR AGENCY OFFICIALS' DECISIONS. SEE JACK BERNBAUM, B-186245, SEPTEMBER 22, 1976.

ON THE BASIS OF ITS SUBMISSION, IT IS CLEAR THAT MMS UNINTENTIONALLY GAVE ERRONEOUS ADVICE TO MR. HAAS ON WHICH HE RELIED AND ACTED IN GOOD FAITH. IN ESSENCE, MR. HAAS' CLAIM IS ONE BASED ON ESTOPPEL AGAINST THE GOVERNMENT. THAT DOCTRINE, HOWEVER, IS UNAVAILABLE AS A BASIS OF RELIEF.

IN THIS REGARD, IT IS WELL ESTABLISHED THAT: "*** THE RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND ITS EMPLOYEES IS NOT A SIMPLE CONTRACTUAL RELATIONSHIP. SINCE FEDERAL EMPLOYEES ARE APPOINTED AND SERVE ONLY IN ACCORDANCE WITH THE APPLICABLE STATUTES AND REGULATIONS, THE ORDINARY PRINCIPLES OF CONTRACT LAW DO NOT APPLY. ***" WILLIAM J. ELDER AND STEPHEN M. OWEN, 56 COMP.GEN. 85, 88 (1976). INDEED, ESTOPPEL DOES NOT BAR RECOVERY BY THE GOVERNMENT FROM ITS EMPLOYEES IN CASES WHERE STATUTES AND REGULATIONS CONTROL THE ENTITLEMENTS REGARDLESS OF THE ERRONEOUS ACTIONS OF THE GOVERNMENT'S AGENTS. SCHUHL V. UNITED STATES, 31 CL. CT. 207 (1983); WILLIAM J. SCHUHL, B-206447, JULY 27, 1982. FURTHERMORE, IT IS ALSO A WELL-ESTABLISHED PRINCIPLE OF LAW THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT RESPONSIBLE FOR THE ERRONEOUS ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SCHWEIKER V. HANSEN, 450 U.S. 785 (1981); FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380 (1947); GERMAN BANK V. UNITED STATES, 148 U.S. 573 (1893); 54 COMP.GEN. 747 (1975); 53 COMP.GEN. 834 (1974).

ACCORDINGLY, MR. HAAS MAY BE REIMBURSED ONLY FOR THE AMOUNT ALREADY PAID, $160.40, TO WHICH HE IS ENTITLED AS A NEW APPOINTEE TO A MANPOWER SHORTAGE POSITION. ALL THE REMAINING AMOUNTS CLAIMED MAY NOT BE PAID BECAUSE MR. HAAS WOULD BE ENTITLED TO BE REIMBURSED FOR THESE AMOUNTS ONLY IF HE MET THE CRITERIA SET OUT IN 5 U.S.C. SEC. 5721AC), WHICH HE DOES NOT.