B-156327, MAR. 24, 1965

B-156327, MAR. 24, 1965

TO MR. R. F. NUGENT:

YOUR LETTER OF FEBRUARY 25, 1965, TO THE HONORABLE JOHN BRADEMAS, HOUSE OF REPRESENTATIVES, CONCERNING YOUR REPORTED INDEBTEDNESS OF $72.85 TO THE UNITED STATES BECAUSE OF TRANSPORTATION FURNISHED YOUR 21-YEAR OLD DAUGHTER INCIDENT TO YOUR APPOINTMENT WITH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, HAS BEEN TRANSMITTED TO US FOR CONSIDERATION. WILL REGARD YOUR LETTER AS A REQUEST FOR REVIEW OF OUR CLAIMS DIVISION ACTION OF FEBRUARY 16, 1965, WHICH INFORMED YOU THAT THE AMOUNT SHOULD BE REPAID TO YOUR AGENCY.

YOUR OBJECTION TO THIS REPAYMENT IS EMBODIED IN THE FOLLOWING QUOTED PARAGRAPH FROM YOUR ETTER:

"AS PREVIOUSLY POINTED OUT IN MY CORRESPONDENCE TO THE CLAIMS DEPARTMENT, THIS TRAVEL ALLOWANCE WAS A NEGOTIATED ITEM REGARDING MY ACCEPTANCE OF THE POSITION AND NOT AN ADMINISTRATIVE ERROR ON THE PART OF ANY GOVERNMENT OFFICIAL. IT APPEARS THAT THE CLAIMS DEPARTMENT REFUSES TO CONSIDER THE MATTER IN THIS LIGHT AND CONTINUED TO HIDE BEHIND THE "ADMINISTRATIVE ERROR" FACET OF THIS SITUATION ON WHICH CASE HISTORIES ARE DOCUMENTED IN THE GOVERNMENT'S FAVOR.'

AS WE UNDERSTAND IT YOUR VIEW IS THAT THE ITEMS OF EXPENSE AUTHORIZED IN YOUR TRAVEL ORDER ARE A PART OF A CONTRACT OF EMPLOYMENT, AND AS SUCH ARE MUTUALLY BINDING UPON YOU AND THE GOVERNMENT. IN THAT VIEW, THE AUTHORITY GRANTED BY THE OFFICERS OR EMPLOYEES, AS AGENTS OF THE GOVERNMENT, IN YOUR TRAVEL ORDER TO TRANSPORT YOUR DAUGHTER WOULD BE VALID AND WOULD OBLIGATE THE GOVERNMENT TO PAY SUCH EXPENSE.

HOWEVER, THE DISTINCTION BETWEEN PRIVATE PERSONS AND THE GOVERNMENT AS PRINCIPALS REGARDING THEIR RESPECTIVE LIABILITIES FOR ACTS OF THEIR AGENTS IS WELL ESTABLISHED. THE FORMER ARE LIABLE TO THE EXTENT OF THE POWER THEY APPARENTLY HAVE GIVEN THEIR AGENTS. THE GOVERNMENT, WHICH MAY ACT ONLY THROUGH AGENTS, IS LIABLE ONLY TO THE EXTENT THAT ITS AGENTS ACT WITHIN THE SCOPE OF STATUTES AND REGULATIONS ISSUED PURSUANT TO STATUTES. 40 COMP. GEN. 447; 16 ID. 325.

A FURTHER SETTLED DISTINCTION EXISTS CONCERNING THOSE DEALING WITH AGENTS OF THE GOVERNMENT, WHICH IS RESTATED IN FEDERAL CROP INSURANCE CORP. V. MERRILL (1947) 332 U.S. 380, 384, AS FOLLOWS:

"WHATEVER THE FORM IN WHICH THE GOVERNMENT FUNCTIONS, ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK OF HAVING ACCURATELY ASCERTAINED THAT HE WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS WITHIN THE BOUNDS OF HIS AUTHORITY. THE SCOPE OF THIS AUTHORITY MAY BE EXPLICITLY DEFINED BY CONGRESS OR BE LIMITED BY DELEGATED LEGISLATION, PROPERLY EXERCISED THROUGH THE RULE MAKING POWER. AND THIS IS SO EVEN THOUGH, AS HERE, THE AGENT HIMSELF MAY HAVE BEEN UNAWARE OF THE LIMITATIONS UPON HIS AUTHORITY. SEE E.G., UTAH POWER AND LIGHT CO. V. UNITED STATES, 243, U.S. 389, 409; UNITED STATES V. STEWART, 311 U.S. 60, 70, AND SEE, GENERALLY, THE FLOYD ACCEPTANCES, 7 WALL. 666.'

THE STATUTE APPLICABLE TO YOUR CASE IS THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED BY PUB.L. 86-587, APPROVED JULY 5, 1960, 74 STAT. 327, 5 U.S.C. 73B-3 (B). THAT STATUTE, SO FAR AS HERE PERTINENT, PROVIDES:

"/B) APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF PERSONS APPOINTED * * * TO POSITIONS IN THE UNITED STATES FOR WHICH THERE IS DETERMINED BY THE CIVIL SERVICE COMMISSION TO BE A MANPOWER SHORTAGE, AND FOR EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS * * * HOWEVER, THE TRAVEL AND TRANSPORTATION EXPENSES AUTHORIZED BY THIS SUBSECTION SHALL NOT BE ALLOWED UNLESS THE PERSON SELECTED * * * SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS APPOINTMENT * * * UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. * * *"

THE ACT EXPRESSLY PROVIDES FOR THE TRANSPORTATION OF IMMEDIATE FAMILIES IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT. BY EXECUTIVE ORDER NO. 10530, MAY 11, 1954, AS AMENDED, THE PRESIDENT DELEGATED THE AUTHORITY VESTED IN HIM BY THE STATUTE TO REGULATE TO THE DIRECTOR OF THE BUREAU OF THE BUDGET. IN THE EXERCISE OF THE DELEGATED AUTHORITY THE DIRECTOR, BUREAU OF THE BUDGET, DEFINED THE TERM "IMMEDIATE FAMILIES" AS FOLLOWS:

"D. "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).'

SINCE THE QUOTED REGULATION HAS THE FORCE AND EFFECT OF LAW, THE OFFICER AUTHORIZING YOUR TRAVEL AND TRANSPORTATION WAS ENTIRELY WITHOUT POWER TO AUTHORIZE THE TRANSPORTATION OF YOUR 21-YEAR OLD DAUGHTER AT GOVERNMENT EXPENSE CONTRARY TO THE REGULATION AND, THEREFORE, HE COULD NOT OBLIGATE THE GOVERNMENT TO PAY FOR SUCH TRANSPORTATION.

IN FURTHER ILLUSTRATION OF OUR REQUIRED POSITION LET US ASSUME THAT YOUR TRAVEL ORDER AUTHORIZED A PER DIEM ALLOWANCE OF $18 IN LIEU OF THE $16 ACTUALLY AUTHORIZED. THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 834, PROVIDES A PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE DEPARTMENT OR ESTABLISHMENT CONCERNED, NOT TO EXCEED THE RATE OF $16 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES. OBVIOUSLY, THE OFFICER OR EMPLOYEE OF THE UNITED STATES AUTHORIZING THE $18 RATE IN THE HYPOTHETICAL SITUATION REFERRED TO, COULD NOT OBLIGATE THE UNITED STATES TO PAY A RATE HIGHER THAN $16. THE SAME RATIONALE APPLIES WITH REGARD TO THE TRANSPORTATION AFFORDED YOUR DAUGHTER.

WE ARE NOT FAMILIAR WITH THE DETAILS OF WHAT TRANSPIRED BETWEEN YOU AND THE APPOINTING OR AUTHORIZING OFFICER AT THE TIME OF YOUR APPOINTMENT. HOWEVER, SINCE SUCH OFFICERS COULD NOT PERSONALLY BENEFIT FROM THE TRANSACTION WE WOULD NORMALLY ATTRIBUTE THE UNAUTHORIZED ORDER FOR YOUR DAUGHTER'S TRANSPORTATION TO OVERSIGHT OR LACK OF KNOWLEDGE ON THE PART OF SUCH OFFICER RATHER THAN TO A DELIBERATE OR FRAUDULENT INTENT TO MISLEAD YOU OR TO MISREPRESENT THEIR AUTHORITY.

WE HOPE THAT THE FOREGOING WILL CLARIFY THE BASIS OF THE ACTION OF OUR CLAIMS DIVISION IN ITS LETTER TO YOU OF FEBRUARY 16, 1965. THE CONCLUSION REACHED THEREIN, UPON REVIEW, IS FOUND TO BE PROPER AND MUST BE SUSTAINED.