B-177277, FEB 12, 1973

B-177277: Feb 12, 1973

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SINCE THE BASIS OF THE EXCLUSION FROM ENTITLEMENT IS THAT FAA EMPLOYEES OBTAIN SOME BENEFITS AND ALLOWANCES UNDER THE MANUAL WHICH ARE NOT GRANTED TO EMPLOYEES OF THE GOVERNMENT WHO ARE NOT COVERED BY THE MANUAL. SCHARAGA ARE (1) SUBSISTENCE EXPENSES INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS AT HIS NEW STATION FOR A PERIOD OF 30 DAYS AND (2) REAL ESTATE TRANSACTION EXPENSES INCIDENT TO PURCHASE OF A NEW RESIDENCE. SCHARAGA SHOULD HAVE BEEN AUTHORIZED TRAVEL AND RELOCATION ALLOWANCES UNDER THE PROVISIONS OF THE DEPARTMENT OF STATE. SCHARAGA STATES THAT THE TRAVEL WAS AUTHORIZED TO BE REIMBURSED "AS PROVIDED IN TRAVEL HANDBOOK 1500.13. SCHARAGA'S CLAIMS ARE FOR DISALLOWANCE. "THE ADMINISTRATOR IS EMPOWERED TO MAKE SUCH EXPENDITURES AT THE SEAT OF GOVERNMENT AND ELSEWHERE AS MAY BE NECESSARY FOR THE EXERCISE AND PERFORMANCE OF THE POWERS AND DUTIES VESTED IN AND IMPOSED UPON HIM BY LAW.

B-177277, FEB 12, 1973

CIVILIAN EMPLOYEE - FOREIGN AREA STATION - SALE OF RESIDENCE - SUBSISTENCE ALLOWANCE CONCERNING THE LEGALITY OF REIMBURSEMENT OF A CLAIM BY BARRY SCHARAGA, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION, FOR CERTAIN EXPENSES INCURRED INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM FRANKFURT, GERMANY TO ATLANTIC CITY, N.J. NOTWITHSTANDING 49 U.S.C. 1344(A) WHICH EMPOWERS THE ADMINISTRATOR TO PAY ALLOWANCES TO FAA EMPLOYEES STATIONED IN FOREIGN COUNTIES TO THE SAME EXTENT AS PAYMENT MADE TO EMPLOYEES IN THE FOREIGN SERVICE, THE DEPARTMENT OF STATE FOREIGN AFFAIRS MANUAL, TRAVEL HANDBOOK 1500.13A, SPECIFICALLY PRECLUDES ALLOWANCE FOR EXPENSES INCURRED FROM THE SALE OR PURCHASE OF REAL ESTATE AS WELL AS REIMBURSEMENT FOR SUBSISTENCE EXPENSES INCURRED AT TEMPORARY QUARTERS. SINCE THE BASIS OF THE EXCLUSION FROM ENTITLEMENT IS THAT FAA EMPLOYEES OBTAIN SOME BENEFITS AND ALLOWANCES UNDER THE MANUAL WHICH ARE NOT GRANTED TO EMPLOYEES OF THE GOVERNMENT WHO ARE NOT COVERED BY THE MANUAL, THE EXPENSES MAY NOT BE CERTIFIED FOR PAYMENT.

TO MR. R. J. SCHULLERY:

THIS REFERS TO YOUR LETTER OF OCTOBER 11, 1972, REQUESTING OUR OPINION AS TO THE LEGALITY OF REIMBURSEMENT OF A CLAIM PRESENTED BY MR. BARRY SCHARAGA, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA), FOR CERTAIN EXPENSES INCURRED INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM FRANKFURT, GERMANY, TO ATLANTIC CITY, NEW JERSEY, EFFECTIVE AUGUST 21, 1972. THE SPECIFIC ITEMS CLAIMED BY MR. SCHARAGA ARE (1) SUBSISTENCE EXPENSES INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS AT HIS NEW STATION FOR A PERIOD OF 30 DAYS AND (2) REAL ESTATE TRANSACTION EXPENSES INCIDENT TO PURCHASE OF A NEW RESIDENCE.

YOUR LETTER STATES WITH RESPECT TO MR. SCHARAGA'S CLAIM THE FOLLOWING:

"MR. SCHARAGA SHOULD HAVE BEEN AUTHORIZED TRAVEL AND RELOCATION ALLOWANCES UNDER THE PROVISIONS OF THE DEPARTMENT OF STATE, FOREIGN AFFAIRS MANUAL. THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, HAS DETERMINED THAT FAA EMPLOYEES STATIONED IN FOREIGN COUNTRIES WOULD RECEIVE ALLOWANCES IN ACCORDANCE WITH FOREIGN AFFAIRS MANUAL. WHILE IN GERMANY MR. SCHARAGA RECEIVED BENEFITS AND ALLOWANCES UNDER THE FOREIGN AFFAIRS MANUAL. SECTION 1.1B(1), OMB CIRCULAR A-56, SPECIFICALLY EXCLUDES PERSONS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, FROM RECEIVING BENEFITS COVERED BY THE CIRCULAR."

(IN THIS CONNECTION WE NOTE THAT THE TRAVEL ORDER ISSUED TO MR. SCHARAGA STATES THAT THE TRAVEL WAS AUTHORIZED TO BE REIMBURSED "AS PROVIDED IN TRAVEL HANDBOOK 1500.13; DEPARTMENT OF STATE FOREIGN AFFAIRS MANUAL; OR AFD MANUAL.)"

YOUR LETTER ALSO CITES OUR DECISION B-163639, MARCH 27, 1968, AS AUTHORITY FOR THE VIEW THAT MR. SCHARAGA'S CLAIMS ARE FOR DISALLOWANCE.

THE PRACTICE OF AUTHORIZING FOREIGN DUTY TRAVEL OF FAA EMPLOYEES IN ACCORDANCE WITH PROVISIONS OF THE FOREIGN AFFAIRS MANUAL HAS ITS ORIGIN IN LANGUAGE INCLUDED IN SUBSECTION 303(A) OF PUBLIC LAW 85-726, AUGUST 23, 1958, THE FEDERAL AVIATION ACT OF 1958. THAT PROVISION OF THE ACT NOW APPEARS IN SUBSECTION 1344(A) OF TITLE 49, U.S.C. AS FOLLOWS:

"SEC 1344. ADMINISTRATION.

"(A) AUTHORIZATION OF EXPENDITURES AND TRAVEL.

"THE ADMINISTRATOR IS EMPOWERED TO MAKE SUCH EXPENDITURES AT THE SEAT OF GOVERNMENT AND ELSEWHERE AS MAY BE NECESSARY FOR THE EXERCISE AND PERFORMANCE OF THE POWERS AND DUTIES VESTED IN AND IMPOSED UPON HIM BY LAW, AND AS FROM TIME TO TIME MAY BE APPROPRIATED FOR BY CONGRESS, INCLUDING EXPENDITURES FOR *** (6) PAYMENT OF ALLOWANCES AND OTHER BENEFITS TO EMPLOYEES STATIONED IN FOREIGN COUNTRIES TO THE SAME EXTENT AS AUTHORIZED FROM TIME TO TIME FOR MEMBERS OF THE FOREIGN SERVICE OF THE UNITED STATES OF COMPARABLE GRADE; ***"

PURSUANT TO THIS AUTHORITY THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY (PREDECESSOR AGENCY OF FAA) ISSUED AGENCY BULLETIN 59-1 DATED JANUARY 1, 1959, STATING THE FOLLOWING POLICY:

"ALLOWANCES PAID TO AND OTHER BENEFITS GRANTED TO EMPLOYEES OF THE FEDERAL AVIATION AGENCY STATIONED IN FOREIGN COUNTRIES SHALL BE EQUIVALENT TO THE ALLOWANCES AND OTHER BENEFITS ACTUALLY PROVIDED TO MEMBERS OF THE FOREIGN SERVICE OF THE UNITED STATES OF A COMPARABLE GRADE THEN SERVING IN THE SAME GEOGRAPHICAL AREA."

CURRENT TRAVEL REGULATIONS OF YOUR AGENCY, TRAVEL HANDBOOK 1500.13A, DATED MAY 17, 1972, WHICH IMPLEMENT INTER ALIA PROVISIONS OF SUBSECTION 5724A OF TITLE 5 SUPRA PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"4. APPLICABILITY. THE PROVISIONS OF THIS HANDBOOK APPLY TO ALL FAA EMPLOYEES, EXCEPT AS SPECIFIED IN THE FOLLOWING SUBPARAGRAPHS.

A. EMPLOYEES ASSIGNED TO FOREIGN AREAS. THE TRAVEL OF EMPLOYEES TRANSFERRED TO, OR ASSIGNED TO, POSTS OF DUTY IN FOREIGN AREAS IS GOVERNED BY THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, OR THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, CONTAINED IN VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL. THEREFORE, EMPLOYEES TRAVELING TO AND FROM A FOREIGN AREA UNDER ONE OF THESE ACTS ARE NOT ENTITLED TO BENEFITS AND ALLOWANCES DESCRIBED IN THIS HANDBOOK. FOR EXAMPLE, THEY ARE NOT ENTITLED TO ALLOWANCES FOR EXPENSES INCURRED IN CONNECTION WITH THE SALE OR PURCHASE OF REAL ESTATE OR REIMBURSEMENT FOR SUBSISTENCE EXPENSE WHILE OCCUPYING TEMPORARY QUARTERS. ***"

AS YOUR LETTER STATES, SUBSECTION 1.1B(1) OF OMB (OFFICE OF MANAGEMENT AND BUDGET) CIRCULAR NO. A-56 EXCLUDES FROM COVERAGE OF THAT REGULATION "OFFICERS AND EMPLOYEES TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED." IN THIS REGARD THE RECORD INDICATES THAT FAA HAS INTERPRETED THE PROVISION OF THE FEDERAL AVIATION ACT OF 1958 QUOTED ABOVE, WHICH AUTHORIZES PAYMENT TO FAA EMPLOYEES ON FOREIGN DUTY OF ALLOWANCES AND BENEFITS EQUIVALENT TO THOSE TO WHICH MEMBERS OF THE FOREIGN SERVICE ARE ENTITLED, TO MEAN THAT FAA EMPLOYEES ARE TRANSFERRED TO AND FROM FOREIGN DUTY POSTS IN ACCORDANCE WITH PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, ACT OF AUGUST 13, 1946, 60 STAT. 999, AS AMENDED (CHAPTER 14 OF TITLE 22, UNITED STATES CODE). UNDERSTAND THAT THE BASIS FOR THIS POSITION IS THAT FAA EMPLOYEES OBTAIN SOME BENEFITS AND ALLOWANCES UNDER THE FOREIGN AFFAIRS MANUAL WHICH ARE NOT GRANTED TO EMPLOYEES OF THE GOVERNMENT WHO ARE NOT COVERED BY SUCH MANUAL. IT DOES NOT APPEAR THAT ADMINISTRATION DISCRETION IN THIS MATTER HAS BEEN ARBITRARY OR CAPRICIOUSLY EXERCISED. ACCORDINGLY, IT FOLLOWS THAT WE HAVE NO BASIS UPON WHICH TO MODIFY DECISION B-163639, MARCH 27, 1968, AND THAT FAA EMPLOYEES ARE NOT ENTITLED TO ALLOWANCES AUTHORIZED BY SECTION 5724A OF TITLE 5 SUPRA AS IMPLEMENTED BY CIRCULAR NO. A-56.

WITH RESPECT TO MR. SCHARAGA'S CLAIM FOR REIMBURSEMENT OF HIS REAL ESTATE TRANSACTION EXPENSES, WE POINT OUT THAT EVEN IF THE REGULATIONS OF CIRCULAR NO. A-56 WERE APPLICABLE, THESE COULD NOT BE REIMBURSED BECAUSE SUBSECTION 5724AA)(4) OF TITLE 5, U.S.C.PROVIDES THAT SUCH EXPENSES MAY BE REIMBURSED ONLY WHEN "THE OLD AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE UNITED STATES ***"

IN VIEW OF THE ABOVE THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.

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