B-171592, FEB 26, 1971

B-171592, FEB 26, 1971

TRAVEL EXPENSES - MANPOWER SHORTAGE DETERMINATION DECISION DENYING REIMBURSEMENT OF TRAVEL EXPENSES TO FLORE LEKANOF, A NEW EMPLOYEE, INCIDENT TO TRAVEL FROM ANCHORAGE, ALASKA, TO WASHINGTON, D.C. PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES TO NEW APPOINTEES IS GOVERNED BY 5 U.S.C. 5723 AND ALLOWS REIMBURSEMENT WHEN THE APPOINTMENT IS TO A POSITION IN THE U.S. FOR WHICH THE CIVIL SERVICE COMMISSION DETERMINES THERE IS A MANPOWER SHORTAGE. WHERE THE COMMISSION HAS MADE NO SUCH DETERMINATION CLAIMANT IS NOT TO BE REGARDED AS QUALIFYING FOR TRAVEL AND TRANSPORTATION EXPENSES UNDER THE ABOVE STATUTE, NOTWITHSTANDING THE FACT ADMINISTRATIVE PERSONNEL INFORMED HIM THAT HE WAS ELIGIBLE.

TO MR. BERT J. PAPPAN:

WE HAVE RECEIVED YOUR LETTER OF DECEMBER 22, 1970, IN WHICH YOU REQUEST A DECISION ON THE CLAIM OF MR. FLORE LEKANOF FOR REIMBURSEMENT OF EXPENSES INCURRED IN APRIL OF 1970 IN TRAVELING FROM ANCHORAGE, ALASKA, TO WASHINGTON, D.C., WHERE HE ACCEPTED AN APPOINTMENT IN THE BUREAU OF INDIAN AFFAIRS.

MR. LEKANOF WAS A NEW APPOINTEE BUT WAS TOLD BY ADMINISTRATIVE PERSONNEL THAT HE WAS ELIGIBLE FOR REIMBURSEMENT FOR THE EXPENSES IN QUESTION. THIS IS SUPPORTED BY THE FACT THAT HIS TRAVEL ORDERS AUTHORIZED SUCH EXPENSES AS WELL AS THE FACT THAT HE WAS REQUIRED TO SIGN AN EMPLOYMENT AGREEMENT ON APRIL 15, 1970. MR. LEKANOF CLAIMS THE REIMBURSEMENT UNDER THE PROVISIONS OF 5 U.S.C. 5723 WHICH AUTHORIZES TRAVEL AND TRANSPORTATION EXPENSES OF NEW APPOINTEES UNDER CERTAIN CIRCUMSTANCES. HE STATES THAT HE REASONABLY RELIED ON INFORMATION PROVIDED BY GOVERNMENT OFFICIALS.

PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES TO NEW APPOINTEES IS GOVERNED BY 5 U.S.C. 5723, IN PART, AS FOLLOWS:

"(A) *** AN AGENCY MAY PAY ***

"(1) TRAVEL EXPENSES OF A NEW APPOINTEE *** TO A POSITION IN THE UNITED STATES FOR WHICH THE CIVIL SERVICE COMMISSION DETERMINES THERE IS A MANPOWER SHORTAGE; AND

"(2) TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS TO THE EXTENT AUTHORIZED BY SECTION 5724 OF THIS TITLE; FROM HIS PLACE OF RESIDENCE AT THE TIME OF SELECTION OR ASSIGNMENT TO HIS DUTY STATION. ***

"(B) *** ONLY AFTER THE INDIVIDUAL SELECTED OR ASSIGNED AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS APPOINTMENT OR ASSIGNMENT ***

"(D) THE COMMISSION MAY NOT DELEGATE ITS AUTHORITY TO DETERMINE POSITIONS FOR WHICH THERE IS A MANPOWER SHORTAGE FOR THE PURPOSE OF THIS SECTION."

THE EMPLOYEE ALLEGES THAT HIS NEW POSITION WAS IN THE MANPOWER SHORTAGE CATEGORY. THE ONLY EVIDENCE SUPPORTING THIS CONTENTION IS IN A TRAVEL AUTHORIZATION DATED DECEMBER 9, 1970, SEVEN MONTHS AFTER THE TRANSFER, WHICH REFERS TO A MANPOWER SHORTAGE CATEGORY. BUT OUR UNDERSTANDING IS THAT THE CIVIL SERVICE COMMISSION HAS MADE NO DETERMINATION OF A MANPOWER SHORTAGE FOR THE POSITION TO WHICH MR. LEKANOF WAS APPOINTED. IN VIEW THEREOF, HE IS NOT TO BE REGARDED AS QUALIFYING FOR TRAVEL AND TRANSPORTATION EXPENSES UNDER THE ABOVE STATUTE.

IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT BOUND BY THE UNAUTHORIZED ACTS OF ITS OFFICERS AND EMPLOYEES. FEDERAL CROP INSURANCE CORPORATION V MERRILL, ET AL., 332 U.S. 380, 385 (1947); IN RE HOOPER'S ESTATE, 359 F. 2D 569, 577 (1966). THEREFORE, THE FACT THAT MR. LEKANOF WAS INFORMED THAT HIS EXPENSES WOULD BE PAID DOES NOT CONSTITUTE ANY BASIS FOR ALLOWANCE OF HIS CLAIM.

WE NOTE YOUR REFERENCE TO THE BILL S. 4051 INTRODUCED IN THE 91ST CONGRESS, 2D SESSION, WHICH PROPOSED TO AUTHORIZE PAYMENT OF THE EXPENSES HERE INVOLVED. HOWEVER THE BILL WAS NEVER ENACTED INTO LAW.

THE VOUCHER, WITH ATTACHMENTS, IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.