B-174330, MAR 7, 1972

B-174330, MAR 7, 1972

CIVILIAN EMPLOYEE - DISABILITY RETIREMENT - ELIGIBILITY FOR STATE UNEMPLOYMENT COMPENSATION DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF LAWRENCE P. O'BRIEN FOR PREMIUM COMPENSATION BELIEVED DUE HIM AS A FIREFIGHTER FOR THE NAVY IN TAIPEI, TAIWAN. SINCE CLAIMANT WAS NEVER ASSIGNED ANY SPECIAL TOURS OF DUTY IN TAIPEI, HE IS NOT ENTITLED TO PREMIUM PAY UNDER THE PROVISIONS OF SUBSECTION 550.143 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. ALTHOUGH MR. O'BRIEN MAY HAVE BEEN IMPROPERLY ADVISED TO THE CONTRARY, IT IS WELL SETTLED THAT THE UNITED STATES CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. LOS ANGELES CUSTOMS AND FREIGHT BROKERS ASSOCIATION V JOHNSON, 277 F. SUPP. 525 (1967). CLAIMANT'S FURTHER CONTENTION THAT THE NAVY SHOULD HAVE INITIATED HIS DISABILITY RETIREMENT ACTION IS INCONSISTENT WITH THE PROVISIONS OF SUBCHAPTER S10 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, AND WHETHER HIS RETIREMENT MAY BE REGARDED AS INVOLUNTARY FOR PURPOSES OF UNEMPLOYMENT COMPENSATION IS PROPERLY FOR DETERMINATION BY THE STATE OF SOUTH CAROLINA.

TO MR. LAWRENCE P. O'BRIEN:

YOUR LETTER OF JANUARY 13, 1972, ADDRESSED TO THE PRESIDENT HAS BEEN FORWARDED TO THIS OFFICE FOR REPLY. IN SUCH LETTER YOU AGAIN REITERATE YOUR CLAIM FOR PREMIUM COMPENSATION AS A FIREFIGHTER FOR THE DEPARTMENT OF THE NAVY IN TAIPEI, TAIWAN. ALSO, YOU ARE NOW ASSERTING THAT THE NAVY DEPARTMENT SHOULD HAVE INITIATED YOUR RETIREMENT FOR DISABILITY IN 1970 (RATHER THAN LEAVING YOU TO APPLY FOR SAME) SO THAT YOU COULD BECOME ELIGIBLE FOR UNEMPLOYMENT COMPENSATION UNDER THE LAWS OF THE STATE OF SOUTH CAROLINA.

AS INDICATED IN OUR DECISION OF NOVEMBER 19, 1971, TO YOU, THE ALLOWANCE OF PREMIUM PAY IN A FIREFIGHTER'S POSITION DEPENDS UPON AN EMPLOYEE WORKING SPECIAL TOURS OF DUTY AS SET FORTH IN SUBSECTION 550.143 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. SINCE YOU WERE NEVER ASSIGNED TO ANY OF SUCH SPECIAL TOURS OF DUTY IN TAIPEI, WE HELD THAT THERE WAS NO AUTHORITY TO ALLOW YOU THE PREMIUM COMPENSATION. ALTHOUGH YOU MAY HAVE BEEN LED TO FEEL YOU WOULD BE PAID PREMIUM COMPENSATION IN ADDITION TO YOUR REGULAR SALARY THIS WOULD NOT BE A BASIS FOR A LEGAL DETERMINATION OF ENTITLEMENT THERETO. THE RULE IS WELL ESTABLISHED THAT THE UNITED STATES CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACT OF ITS AGENTS. FEDERAL CROP INSURANCE CORPORATION V MERRILL, 332 U.S. 380, 68 S. CT. 1, 92 L. ED. 10 (1947); UNITED STATES V ROSSI, 342 F.2D 505 (1965) AND LOS ANGELES CUSTOMS AND FREIGHT BROKERS ASSOCIATION V JOHNSON, 277 F. SUPP. 525 (1967). ACCORDINGLY, WE SEE NO BASIS FOR REVERSING OUR PRIOR ACTION IN YOUR CASE.

WITH REGARD TO YOUR ALLEGATION THAT THE NAVY SHOULD HAVE INITIATED THE DISABILITY RETIREMENT ACTION IN YOUR CASE, WE KNOW OF NO OBLIGATION UPON AN AGENCY TO DO SO. TO THE CONTRARY, SUBCHAPTER S10 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1 PROVIDES:

"S10-2. WHO MAY FILE APPLICATION

"A. THE EMPLOYEE MUST APPLY FOR DISABILITY RETIREMENT, EXCEPT IN THE FOLLOWING CASES:

"(1) WHEN AN AGENCY CONSIDERS ACTING UPON DEFICIENCIES IN AN EMPLOYEE'S SERVICE CAUSED BY A POSSIBLE HEALTH PROBLEM, AND IF THE EMPLOYEE REFUSES TO APPLY, THE AGENCY MAY APPLY FOR HIM.

"(2) IF HE IS MENTALLY INCOMPETENT, THE AGENCY, HIS GUARDIAN, HIS RELATIVE, OR SOME OTHER INTERESTED PERSON MAY APPLY IN HIS BEHALF."

WE NOTE THAT YOU HAVE BEEN INFORMED THAT THE MATTER OF WHETHER YOUR RETIREMENT SHOULD BE REGARDED AS INVOLUNTARY FOR PURPOSES OF UNEMPLOYMENT COMPENSATION IS FOR DETERMINATION BY THE STATE OF SOUTH CAROLINA. THE MATERIAL SUBMITTED WITH YOUR LETTER IS RETURNED.