B-215616, OCT 30, 1984, 64 COMP.GEN. 30

B-215616, OCT 30, 1984, 64 COMP.GEN. 30

TRANSPORTATION - AUTOMOBILES - SPECIALLY EQUIPPED - HANDICAPPED EMPLOYEE - TRANSFER EMPLOYEE WITHOUT USE OF HER ARMS WHO SHIPPED HER SPECIALLY EQUIPPED AUTOMOBILE BETWEEN DUTY STATIONS WITHIN THE CONTINENTAL UNITED STATES MAY BE REIMBURSED FOR SHIPPING COSTS. THE AGENCY FOUND, PURSUANT TO THE REHABILITATION ACT OF 1973, THAT EMPLOYEE WAS A QUALIFIED HANDICAPPED EMPLOYEE, THAT REIMBURSEMENT WAS COST BENEFICIAL, THAT IT CONSTITUTED A REASONABLE ACCOMMODATION TO THE EMPLOYEE, AND THAT SUCH REIMBURSEMENT DID NOT IMPOSE UNDUE HARDSHIP ON THE OPERATION OF THE PERSONNEL RELOCATION PROGRAM. AUTHORIZATION UNDER THE REHABILITATION ACT SATISFIES THE "EXCEPT AS SPECIFICALLY AUTHORIZED" LANGUAGE IN 5 U.S.C. 5727(A) (1982).

MATTER OF: NORMA DEPOYAN-- REIMBURSEMENT FOR COSTS OF SHIPPING PRIVATELY OWNED VEHICLE SPECIALLY EQUIPPED FOR USE BY HANDICAPPED EMPLOYEE, OCTOBER 30, 1984:

MR. JOHN E. TOTTER, CHIEF, NATIONAL OFFICE, FINANCIAL OPERATIONS BRANCH OF THE INTERNAL REVENUE SERVICE (IRS), REQUESTS AN ADVANCE DECISION ON THE CLAIM OF A HANDICAPPED EMPLOYEE FOR REIMBURSEMENT OF COSTS SHE INCURRED IN SHIPPING HER SPECIALLY EQUIPPED AUTOMOBILE FROM CALIFORNIA TO HER NEW DUTY STATION IN WASHINGTON, D.C. WE FIND PAYMENT IS AUTHORIZED BY THE REHABILITATION ACT OF 1973.

ON DECEMBER 15, 1983, MRS. NORMA DEPOYAN WAS TRANSFERRED FROM A GS-9 POSITION IN FRESNO, CALIFORNIA, TO WASHINGTON, D.C., TO ASSUME DUTY AS A GS-11 PROGRAM ANALYST. THE SAME DAY, SHE SHIPPED HER PERSONALLY OWNED CAR TO ALEXANDRIA, VIRGINIA, AT A COST OF $1,154.

MRS. DEPOYAN HAS SEVERE PHYSICAL DISABILITIES CAUSED BY POLIO, AND DOES NOT HAVE USE OF HER ARMS. ALTHOUGH HER CAR IS SPECIALLY EQUIPPED TO PERMIT HER TO DRIVE WITHOUT USE OF HER ARMS, MRS. DEPOYAN DID NOT DRIVE, OR HAVE HER CAR DRIVEN CROSS-COUNTRY TO WASHINGTON, D.C. FOR TWO REASONS. FIRST, SHE WAS PHYSICALLY UNABLE TO DRIVE THE LONG DISTANCE, PARTICULARLY THROUGH WINTER WEATHER. SECONDLY, IT COULD BE DANGEROUS FOR AN INEXPERIENCED DRIVER TO OPERATE HER VEHICLE AND SHE SOUGHT TO AVOID INJURY TO THE CAR, HERSELF AND A DRIVER.

MRS. DEPOYAN'S DOCTOR AGREED THAT MRS. DEPOYAN WAS PHYSICALLY UNABLE TO DRIVE TO WASHINGTON, D.C. AND STATED THAT IT WOULD BE "MANDATORY" FOR HER TO TRAVEL BY PLANE AND TO SHIP HER CAR. THE IRS AUTHORIZED HER TRAVEL BY AIRPLANE FROM CALIFORNIA TO WASHINGTON, D.C., AND NOW REQUESTS AN ADVANCE DECISION REGARDING HER REQUEST FOR REIMBURSEMENT FOR SHIPMENT OF HER CAR.

THE AGENCY RECOGNIZES THAT NORMALLY, CONSISTENT WITH 5 U.S.C. SEC. 5727(A), THERE IS NO AUTHORITY TO REIMBURSE EMPLOYEES FOR SHIPMENT OF A PRIVATELY OWNED VEHICLE BETWEEN DUTY POSTS WITHIN THE CONTINENTAL UNITED STATES. /1/ HOWEVER, IRS RECOMMENDS THAT PAYMENT IN THIS CASE BE AUTHORIZED PURSUANT TO THE REHABILITATION ACT OF 1973.

THE AGENCY ARGUES THAT BASED UPON HER DOCTOR'S ADVICE, MRS. DEPOYAN HAD NO CHOICE BUT TO SHIP HER AUTOMOBILE. THE AGENCY ALSO NOTES THAT IT ENVISIONS FEW CASES WHICH WOULD MEET THE SAME CRITERIA AS MRS. DEPOYAN.

IT INCLUDES A COST ANALYSIS SHOWING THAT THE SALARY, TRAVEL AND PER DIEM OF MRS. DEPOYAN FOR THE 8-DAY DRIVE WOULD HAVE COST $1,461. HAD SHE BEEN ABLE TO WITHSTAND THE LONG DRIVE, AND HAD SHE BEEN ABLE TO LOCATE A CAPABLE DRIVER, THE AGENCY WOULD HAVE BEEN AUTHORIZED TO PAY TRAVEL AND PER DIEM FOR THE DRIVER PURSUANT TO ALEX ZAYORO, 59 COMP.GEN. 461 (1980). THIS WOULD HAVE ADDED $705 TO THE COST, FOR A TOTAL OF $2,166. CONTRAST, THE TOTAL COST OF MRS. DEPOYAN'S TRAVEL BY PLANE AND SHIPMENT OF HER CAR WAS ONLY $1,516, $650 LESS. THUS, SHIPMENT OF HER VEHICLE WAS COST BENEFICIAL IN THESE CIRCUMSTANCES.

DISCUSSION

FEDERAL POLICY REGARDING HANDICAPPED INDIVIDUALS REQUIRES FEDERAL AGENCIES TO FORMULATE AND IMPLEMENT PROGRAMS FOR THE EMPLOYMENT AND ADVANCEMENT OF HANDICAPPED INDIVIDUALS. 29 U.S.C. SEC. 591(B) (1982). ALSO REQUIRES AGENCIES TO MAKE REASONABLE ACCOMMODATIONS TO KNOWN PHYSICAL LIMITATIONS OF QUALIFIED EMPLOYEES UNLESS SUCH ACCOMMODATIONS WOULD IMPOSE UNDUE HARDSHIP ON THE OPERATION OF THE PROGRAM. 29 C.F.R. SEC. 1613.704.

THIS COMMITMENT TO ASSIST THE HANDICAPPED HAS BEEN REFLECTED IN GAO DECISIONS. SEE DISCUSSION AT 63 COMP.GEN. 270, 273 (1984). WE HAVE HELD THAT AN AGENCY MAY, WHEN ACTING UNDER THE AUTHORITY OF THE REHABILITATION ACT OF 1973, EXPEND APPROPRIATED FUNDS TO ACCOMMODATE THE PHYSICAL OR MENTAL LIMITATIONS OF A QUALIFIED HANDICAPPED EMPLOYEE OR APPLICANT, AS DEFINED IN THE ACT OR IMPLEMENTING REGULATIONS, UNLESS SUCH ACCOMMODATION WOULD IMPOSE AN UNDUE HARDSHIP ON THE OPERATION OF ITS PROGRAM. COMP.GEN. 115, 116 (1982). SEE ALSO B-213666, JULY 26, 1984.

IN THE PRESENT CASE, THE IRS HAS CLEARLY JUSTIFIED THE EXPENDITURE UNDER THE REHABILITATION ACT OF 1973 AS A "REASONABLE ACCOMMODATION," THE NATURE AND COST OF WHICH WOULD NOT IMPOSE AN UNDUE HARDSHIP ON THE TRAVEL PROGRAM. IT HAS CLEARLY JUSTIFIED REIMBURSEMENT OF THE COSTS OF SHIPPING MRS. DEPOYAN'S AUTOMOBILE AS AUTHORIZED UNDER THE REHABILITATION ACT OF 1973 AND HAS DETERMINED THAT MRS. DEPOYAN WAS HANDICAPPED, AS DEFINED IN THE ACT. 63 COMG.GEN. AT 116.

THE PROVISIONS OF 5 U.S.C. SEC. 5727(A), WHICH LIMIT AUTHORIZATION FOR SHIPMENT OF PERSONALLY OWNED VEHICLES TO INSTANCES WHERE SUCH SHIPMENT IS "SPECIFICALLY AUTHORIZED BY STATUTE," DOES NOT PRESENT A BAR TO REIMBURSEMENT IN THIS CASE BECAUSE THE REHABILITATION ACT OF 1973 PROVIDES SUCH AUTHORIZATION. SEE 63 COMP.GEN. AT 116.

FURTHERMORE, THE LEGISLATIVE INTENT OF 5 U.S.C. SEC. 5727(A) WAS TO ELIMINATE THE "UNREASONABLE BURDEN" WHICH CAR SHIPMENT COSTS HAD IMPOSED ON THE GOVERNMENT. AT THAT TIME, THE COST OF SHIPMENT OFTEN EXCEEDED THE COST OF THE CAR. SENATE REPORT NO. 756, 72D CONG. 1ST SESS. 9 (1932). THE PRESENT CASE, THE IRS HAS DEMONSTRATED THAT SHIPMENT OF THE AUTOMOBILE WAS LESS COSTLY THAN THE ALTERNATIVE IN THIS CASE-- PAYING THE EXPENSES OF MRS. DEPOYAN AND A DRIVER TO TRANSPORT THE CAR FROM CALIFORNIA TO WASHINGTON, D.C.

ACCORDINGLY, WE FIND THAT APPROPRIATED FUNDS MAY BE USED TO REIMBURSE MRS. DEPOYAN FOR THE COST OF SHIPPING HER SPECIALLY EQUIPPED CAR TO HER NEW DUTY STATION.

/1/ SECTION 5727(A) PROVIDES AS FOLLOWS:

"(A) EXCEPT AS SPECIFICALLY AUTHORIZED BY STATUTE, AN AUTHORIZATION IN A STATUTE OR REGULATION TO TRANSPORT THE EFFECTS OF AN EMPLOYEE OR OTHER INDIVIDUAL AT GOVERNMENT EXPENSE IS NOT AN AUTHORIZATION TO TRANSPORT AN AUTOMOBILE."