B-180083, JAN 7, 1974

B-180083, JAN 7, 1974

EMPLOYEE CLAIMING TEMPORARY STORAGE EXPENSES PRECLUDED BY JOINT TRAVEL REGULATIONS CONTENDS THAT TRAVEL ORDERS CONSTITUTED CONTRACT BETWEEN EMPLOYEE AND GOVERNMENT AUTHORIZING REIMBURSEMENT FOR SUCH EXPENSES. HOWEVER, INDIVIDUAL WHO ISSUED TRAVEL ORDERS PURPORTING TO AUTHORIZE REIMBURSEMENT LACKED AUTHORITY TO DO SO, AND IT IS ESTABLISHED RULE THAT ANYONE ENTERING INTO ARRANGEMENT WITH GOVERNMENT TAKES RISK OF HAVING ASCERTAINED THAT AGENT WITH WHOM HE DEALS AND WHO PURPORTS TO ACT FOR GOVERNMENT STAYS WITHIN LIMITS OF HIS AUTHORITY, INASMUCH AS GOVT. CAN NEITHER BE BOUND NOR ESTOPPED BY UNAUTHORIZED ACTS OF ITS AGENTS. SEE CT. CASES CITED.

TO MR. BERNARD KALB:

WE REFER FURTHER TO YOUR LETTER OF OCTOBER 8, 1973, REQUESTING RECONSIDERATION OF THE DENIAL BY SETTLEMENT CERTIFICATE DATED AUGUST 6, 1973, OF YOUR CLAIM FOR REIMBURSEMENT OF STORAGE COSTS INCIDENT TO YOUR TEMPORARY DUTY ASSIGNMENT IN TURKEY AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY. YOUR CLAIM FOR STORAGE EXPENSES WAS DISALLOWED INASMUCH AS THERE IS NO AUTHORITY UNDER PERTINENT REGULATIONS FOR PAYMENT OF NON TEMPORARY STORAGE UNLESS A PERMANENT CHANGE OF STATION IS INVOLVED.

YOU NOW STATE THAT WHILE YOU RECOGNIZE THAT YOUR CLAIM IS PRECLUDED UNDER PROVISIONS OF THE JOINT TRAVEL REGULATIONS, VOLUME II, YOU FEEL THAT YOU ARE NEVERTHELESS ENTITLED TO REIMBURSEMENT ON THE BASIS OF THE TRAVEL ORDERS ISSUED IN CONNECTION WITH YOUR ASSIGNMENT. YOU BELIEVE THEY CONSTITUTE A CONTRACT BETWEEN YOU AND THE GOVERNMENT AUTHORIZING REIMBURSEMENT FOR THE EXPENSE OF TEMPORARY STORAGE. YOU EXPLAIN:

"THE IMPORTANT ELEMENT, THE BASIS FOR MY CLAIM, IS THAT I HAD ENTERED INTO A CONTRACT WITH THE U.S. GOVERNMENT, WHICH SPECIFICALLY AUTHORIZED ME TO STORE UP TO 7000 POUNDS OF FURNITURE. THE CONTRACT DOCUMENT, MY OFFICIAL U.S. NAVY ORDERS AND OTHER BACKGROUND INFORMATION WAS PROVIDED TO YOU. AT THE TIME I WAS NEGOTIATING WITH MY LOCAL OFFICE AT HUNTERS POINT NAVAL SHIPYARD, I HAD NO KNOWLEDGE AT ALL WHAT THE JTR SPECIFIED. REQUESTED PERMISSION TO STORE FURNITURE; THE LOCAL HUNTERS POINT OFFICE PASSED THE REQUEST ON TO THE NAVAL SHIP SYSTEMS COMMAND; THE EXPERTS IN NAVSHIPS APPROVED THE REQUEST; AND THE AUTHORIZATION APPEARED IN MY CONTRACT. ALL THIS IS DOCUMENTED IN U.S. NAVAL MESSAGES.

"I WOULD LIKE TO SUBMIT SOME ADDITIONAL BACKGROUND. WHILE NEGOTIATING WITH THE NAVY, I HAD AT FIRST RENTED MY HOME FURNISHED. THE RENTER THEN REQUESTED A CHANGE TO UNFURNISHED RENTAL WHEN HE DETERMINED THAT HIS COMPANY FROM OUT OF STATE WAS WILLING TO TRANSPORT HIS FURNITURE. IT WAS THEN THAT I BEGAN NEGOTIATIONS TO STORE MY FURNITURE. HAD THE GOVERNMENT DENIED MY REQUEST, I WOULD HAVE INSISTED ON FURNISHED RENTAL.

"THE GOVERNMENT IS AT FAULT, SPECIFICALLY CERTAIN PEOPLE AT NAVSHIPS THE PARTY WHO APPROVED THE STORAGE, AND THE 'EXPERTS' THROUGH WHOSE OFFICE THE NAVSHIPS MESSAGE CLEARED. I CAN'T SEE WHY I SHOULD BE PENALIZED FOR THEIR FAILURE TO ADVISE ME IN AUGUST 1968 THAT MY REQUEST DID NOT CONFORM WITH THE JTR."

UNFORTUNATELY, THE INDIVIDUAL WHO ISSUED YOUR TRAVEL ORDERS AND WHO PURPORTED TO AUTHORIZE REIMBURSEMENT FOR THE STORAGE COST OF YOUR HOUSEHOLD EFFECTS WAS WITHOUT AUTHORITY TO DO SO. INCIDENT TO A TEMPORARY DUTY ASSIGNMENT HE MAY AUTHORIZE THE ALLOWANCES PRESCRIBED IN VALID REGULATIONS AND HE CANNOT, BY HIS NEGLIGENCE OR LACK OF KNOWLEDGE ABOUT THOSE REGULATIONS, EXPAND THEIR SCOPE.

THE WELL ESTABLISHED RULE OF LAW IN THIS REGARD IS THAT ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK OF HAVING ASCERTAINED THAT THE AGENT WITH WHOM HE DEALS AND WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS WITHIN THE LIMITS OF HIS AUTHORITY, INASMUCH AS THE GOVERNMENT CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. HART V. UNITED STATES, 95 U.S. 316 (1877); PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279 (1902): UTAH POWER AND LIGHT CO. V. UNITED STATES, 243 U.S. 389 (1917): SUTTON, TRUSTEE OF ESTATE OF HILLSBORO DREDGING COMPANY, BANKRUPT V. UNITED STATES, 256 U.S. 575 (1921); WILBER NATIONAL BANK OF ONCONTA, ADMINISTRATOR V. UNITED STATES, 294 U.S. 120 (1935): FEDERAL CROP INSURANCE CORPORATION V. MERRIL, 332 U.S. 380 (1947); IMMIGRATION AND NATURALIZATION SERVICE V. HIBI, SUP. CT. NO. 72-1652, 42 U.S. LAW WEEK 3241. THIS RULE PERTAINS AS A MATTER OF PUBLIC POLICY FOR THE PROTECTION OF PUBLIC FUNDS, AND ITS JUSTIFICATION LIES IN PART IN THE FACT THAT AGENTS OF THE GOVERNMENT HAVE KNOWN AND LIMITED POWERS EXPLICITLY DEFINED BY PUBLIC INSTRUMENTS SUCH AS STATUTES, EXECUTIVE ORDERS AND REGULATIONS.

WHILE WE RECOGNIZE THAT THE RULE MAY OPERATE HARSHLY IN SOME CASES WE ARE NEVERTHELESS CONSTRAINED TO APPLY IT IN CASES SUCH AS YOURS WHERE AN AGENT OF THE GOVERNMENT HAS ERRONEOUSLY PURPORTED TO AUTHORIZE PAYMENT OF EXPENSES WHEN HE IS IN FACT WITHOUT AUTHORITY TO DO SO. ..END :