B-145873, JUNE 20, 1961, 40 COMP. GEN. 704

B-145873, JUNE 20, 1961, 40 COMP. GEN. 704

CIVILIAN PERSONNEL - TRANSPORTATION - NONDEPENDENT SPOUSE OF EMPLOYEE - WIFE A FEMALE CIVILIAN EMPLOYEE WHOSE NONDEPENDENT HUSBAND TRAVELS WITH HIS WIFE, INCIDENT TO ORDERS WHICH AUTHORIZE TRANSPORTATION OF HER IMMEDIATE FAMILY AT GOVERNMENT EXPENSE TO HER FIRST DUTY STATION, IS NOT REQUIRED BY EITHER SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 OR EXECUTIVE ORDER NO. 9805 TO SHOW THAT THE SPOUSE IS FINANCIALLY DEPENDENT UPON HER IN ORDER TO BE ENTITLED TO REIMBURSEMENT FOR HIS TRAVEL EXPENSES, AND AN ADMINISTRATIVE INSTRUCTION WHICH REQUIRES A SHOWING OF FINANCIAL DEPENDENCY BY THE SPOUSE OF AN EMPLOYEE-WIFE IS INCONSISTENT WITH THE LAW AND REGULATIONS.

TO T. W. AIKEN, DEPARTMENT OF THE NAVY, JUNE 20, 1961:

ON APRIL 10, 1961, BY REFERENCE 3500-51: TWA: MBK, YOU SUBMITTED THE VOUCHER OF MRS. DELPHINE F. DAY, A CIVILIAN EMPLOYEE OF THE U.S. NAVAL RESEARCH LABORATORY, WASHINGTON, D.C., FOR OUR ADVANCE DECISION.

MRS. DAY WAS EMPLOYED BY THE NAVAL RESEARCH LABORATORY AT HER HOME IN MORGAN CITY, LOUISIANA, AND AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE TO HER FIRST DUTY STATION, WASHINGTON, D.C., UNDER THE PROVISIONS OF SECTION 7 (B/-/D) OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3 (B/- /D). THE VOUCHER IN QUESTION REPRESENTS THE COST OF THE TRAVEL OF MR. RALPH D. DAY, THE EMPLOYEE'S HUSBAND TO WASHINGTON, D.C., IN FEBRUARY AND MARCH 1961. MRS. DAY SAYS THAT MR. DAY WAS A STUDENT AT LOUISIANA STATE UNIVERSITY PRIOR TO HER TRANSFER TO WASHINGTON AND THAT NOW HE WILL CONTINUE TO ATTEND SCHOOL IN WASHINGTON.

THE QUESTION INVOLVED IS WHETHER UNDER SECTION 1 OF THE ACT, AS AMENDED, 51U.S.C. 73B-1, EXECUTIVE ORDER NO. 9805, AND PARAGRAPH 7-2 OF NAVY CIVILIAN PERSONNEL INSTRUCTION 4650, A FEMALE EMPLOYEE OR HER SPOUSE MUST SHOW THAT THE SPOUSE IS FINANCIALLY DEPENDENT UPON HER IN ORDER THAT SHE MAY BE ALLOWED THE EXPENSE OF HIS TRAVEL WHEN SHE IS ENTITLED TO HAVE HER "IMMEDIATE FAMILY" TRANSPORTED AT GOVERNMENT EXPENSE.

SECTION 1 (D) OF EXECUTIVE ORDER NO. 9805 PROVIDES:

"IMMEDIATE FAMILY" MEANS ANY OF THE FOLLOWING-NAMED MEMBERS OF THE EMPLOYEE'S HOUSEHOLD: SPOUSE, CHILDREN (INCLUDING STEPCHILDREN AND ADOPTED CHILDREN) UNMARRIED AND UNDER TWENTY-ONE YEARS OF AGE OR PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF AGE, OR DEPENDENT PARENTS OF THE EMPLOYEE (BUT NOT OF THE SPOUSE).

PARAGRAPH 7-2 OF NAVY CIVILIAN PERSONNEL INSTRUCTION 4650, AFTER RESTATING THE ABOVE PROVISION OF EXECUTIVE ORDER NO. 9805, PROVIDES:

* * * IN ORDER FOR A DEPENDENT HUSBAND TO BE ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE, HE MUST SHOW FINANCIAL DEPENDENCE ON THE EMPLOYEE.

SINCE NEITHER SECTION 1 OF THE ACT NOR EXECUTIVE ORDER NO. 9805, AS AMENDED, EXPRESSLY REQUIRES THAT THE HUSBAND OF A GOVERNMENT EMPLOYEE BE DEPENDENT IN ORDER THAT HIS TRANSPORTATION EXPENSES MAY BE PAID BY THE GOVERNMENT WHEN HIS WIFE IS AUTHORIZED TO TRAVEL WITH HER IMMEDIATE FAMILY INCIDENT TO A TRANSFER OF OFFICIAL STATION, THE ISSUE IS WHETHER SUCH A REQUIREMENT IS PRESENT IN THE STATUTE OR RELATED EXECUTIVE ORDERS BY IMPLICATION.

WE HERETOFORE HAVE NOT HAD THE QUESTION BEFORE US FOR DECISION. IN THE CASE CONSIDERED AT 25 COMP. GEN. 360, TO WHICH YOU REFER, PERTAINING TO THE ACT OF OCTOBER 10, 1940, 54 STAT. 1105, THE ISSUE WAS WHETHER THE HUSBAND WAS A DEPENDENT WITHIN THE PURVIEW OF SECTION 2 OF EXECUTIVE ORDER NO. 8588, DATED NOVEMBER 8, 1940, FOR THE PURPOSE OF ESTABLISHING A MAXIMUM WEIGHT LIMITATION REGARDING THE TRANSPORTATION OF HOUSEHOLD GOODS AND EFFECTS. IN OUR UNPUBLISHED DECISION B-82399, DATED JANUARY 14, 1949, ALSO MENTIONED IN YOUR LETTER, THE QUESTION WAS NOT CONSIDERED.

WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 1 OF THE ACT, OR IN THAT OF ANTECEDENT ENACTMENTS CONTAINING SIMILAR PROVISIONS, SUCH AS SECTION 201 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, 59 STAT. 106, 131, WHICH IS INDICATIVE OF THE INTENT OF THE CONGRESS REGARDING THE REQUIREMENT OF DEPENDENCY ON THE PART OF THE HUSBAND OF A FEMALE EMPLOYEE AS A CONDITION PRECEDENT TO HIS TRANSPORTATION AT GOVERNMENT EXPENSE.

IN SECTION 1 OF EXECUTIVE ORDER NO. 9805, DATED NOVEMBER 25, 1946, IMPLEMENTING THE ADMINISTRATIVE EXPENSES ACT OF 1946, THE TERM "DEPENDENT" EXPRESSLY IS USED ONLY WITH REGARD TO THE PARENTS OF THE EMPLOYEE, AND IS INCLUDED BY IMPLICATION ONLY REGARDING CHILDREN TWENTY ONE YEARS OR OLDER. TO REQUIRE THE MALE SPOUSE TO BE A DEPENDENT OF HIS EMPLOYEE WIFE AS A CONDITION TO THE GOVERNMENT BEARING HIS TRANSPORTATION EXPENSE UPON HER TRANSFER WOULD NECESSITATE READING INTO THE OTHERWISE CLEAR AND UNAMBIGUOUS TERMINOLOGY OF THE STATUTE AND EXECUTIVE ORDER, LANGUAGE WHICH SIMPLY IS NOT THERE.

WE CONCLUDE, THEREFORE, THAT THE LAST SENTENCE OF PARAGRAPH 7-2, NAVY CIVILIAN PERSONNEL INSTRUCTION 4650, IS INCONSISTENT WITH THE STATUTE AND PRESIDENTIAL REGULATIONS AS THEY NOW STAND. SEE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL, TITLE 7, SECTION 5340.10. IN VIEW, HOWEVER, OF THE BROAD REGULATORY POWER GRANTED THE PRESIDENT BY THE ADMINISTRATIVE EXPENSES ACT OF 1946, WE ARE OF THE OPINION THAT SHOULD ABUSES ARISE IN REGARD TO THE BASIC QUESTION PRESENTED, NOTHING IN THE STATUTE WOULD PRECLUDE THE PRESIDENT OR HIS DELEGATE FROM EXERCISING APPROPRIATE CONTROL BY REGULATION.

THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND IF CORRECT IN OTHER RESPECTS, IT MAY BE PAID.

COPIES OF THIS DECISION ARE BEING FURNISHED THE SECRETARY OF THE NAVY AND THE DIRECTOR OF THE BUREAU OF THE BUDGET FOR ANY ACTION THEY MAY DEEM APPROPRIATE.