B-152533, NOV. 27, 1963

B-152533, NOV. 27, 1963

TO MRS. FLORITA PEGGY M. MATHESON, DDC:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1963, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF OCTOBER 25, 1963, B-152533, TO YOU. ISSUE IS WHETHER UNDER YOUR CURRENT EMPLOYMENT WITH THE DEPARTMENT OF DEFENSE AT CLARK AIR BASE, PHILIPPINES, YOU ARE ENTITLED TO A FOREIGN POST DIFFERENTIAL AND QUARTERS ALLOWANCE, AND TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM YOUR DUTY STATION IN THE PHILIPPINE ISLANDS TO A PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES UPON THE COMPLETION OF YOUR EMPLOYMENT.

IN OUR LETTER OF OCTOBER 25, 1963, WE CONCLUDED THAT THE ADMINISTRATIVE DETERMINATION THAT YOUR DOMICILE WAS IN THE PHILIPPINES, WHICH DETERMINATION GOVERNS YOUR ENTITLEMENT TO THE ALLOWANCES, WAS NOT SO CLEARLY ERRONEOUS AS TO WARRANT A MODIFICATION BY US. ALSO, WE POINTED OUT THAT ISSUE OF DOMICILE IS ONE PRIMARILY FOR ADMINISTRATIVE RESOLUTION. YOUR LETTER OF NOVEMBER 5, 1963, REQUESTS, IN EFFECT, THAT WE REVIEW YOUR CASE ON THE MERITS AND FIND IN YOUR FAVOR NOTWITHSTANDING THE ADMINISTRATIVE CONCLUSION TO THE CONTRARY.

THE CONTROLLING RULE BY WHICH WE MUST BE GUIDED IS THAT WHEN AN AGENCY IS CLOTHED WITH DISCRETIONARY POWER TO MAKE FINDINGS ON THE BASIS OF FACTS BEFORE IT, A REVIEWING AUTHORITY MAY NOT SET ASIDE SUCH FINDINGS MERELY BECAUSE IT MAY HAVE REACHED A DIFFERENT CONCLUSION ON THE SAME EVIDENCE. RATHER, THE TEST IS WHETHER THE AGENCY FINDING IS PREDICATED UPON SUBSTANTIAL EVIDENCE.

WE CAREFULLY HAVE REVIEWED ALL OF THE EVIDENCE SUBMITTED BY YOU AND BY THE DEPARTMENT CONCERNED, INCLUDING THE OPINIONS RENDERED AT DEPARTMENTAL LEVELS, AND HAVE DISCOUNTED ANY EVIDENCE THAT TENDED TO REFLECT BIAS. AFTER SUCH REVIEW WE CANNOT SAY THAT THE FINDING BY THE ADMINISTRATIVE AUTHORITIES THAT YOU DID NOT ESTABLISH YOUR INTENT TO ABANDON YOUR DOMICILE IN THE PHILIPPINES AND ESTABLISH IT IN CALIFORNIA WAS COMPLETELY ERRONEOUS AND IN COMPLETE DISREGARD OF THE EVIDENCE.

THERE IS PRESENT IN YOUR CASE--- AS IN ANY CASE CONCERNING A DISPUTE AS TO DOMICILE--- AN AREA OF UNCERTAINTY CONCERNING SUBJECTIVE INTENT. UNQUESTIONABLY YOU HONESTLY CONSIDER CALIFORNIA TO BE YOUR DOMICILE, THE PLACE WHERE YOU INTEND SOME DAY TO RETURN. THAT IS YOUR SUBJECTIVE INTENT. ON THE OTHER HAND, AS WE ARE SURE YOU UNDERSTAND, THE ADMINISTRATIVE OFFICE OR, FOR THAT MATTER, THIS OFFICE MUST DETERMINE THE QUESTION OF DOMICILE, NOT UPON A DECLARATION OF SUBJECTIVE INTENT, BUT UPON THE BASIS OF ACTUAL FACTS AND OVERT ACTS OF THE INDIVIDUAL CONCERNED. APPLYING SUCH STANDARD WE CANNOT FIND THAT THE ADMINISTRATIVE DETERMINATION WAS ARBITRARY OR UNREASONABLE.

IN RESPONSE TO YOUR QUESTION AS TO WHERE YOU MAY HAVE YOUR CASE FURTHER REVIEWED, YOU ARE ADVISED THAT THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO PROCEDURE PRESCRIBED FOR APPEALING FROM SUCH DECISIONS. HOWEVER, YOUR ATTENTION IS DIRECTED TO TITLE 28, U.S.C. SECTIONS 1491, ET SEQ., WHICH RELATE TO THE JURISDICTION OF THE COURT OF CLAIMS, WASHINGTON 25, D.C., REGARDING MONEY CLAIMS AGAINST THE UNITED STATES.

CONCERNING YOUR REQUEST THAT WE RETURN THE PAPERS IN YOUR CASE, WE MAY NOT RELEASE THOSE UPON WHICH EITHER THE GENERAL ACCOUNTING OFFICE SETTLEMENT OR OUR DECISION IS BASED SINCE THOSE ARE OFFICIAL ACTIONS PREDICATED UPON THE RECORDS SUBMITTED. SEE 21 COMP. GEN. 819, 823. HOWEVER, WE ARE RETURNING THOSE TRANSMITTED WITH YOUR LETTER OF NOVEMBER 5, 1963.