B-185511, MAR 3, 1976

B-185511, MAR 3, 1976

EMPLOYEE WHO LOCATED A NEW RESIDENCE WHILE ON TEMPORARY DUTY AT LOCATION OF DUTY STATION TO WHICH HE WAS THEREAFTER TRANSFERRED, THUS SHORTENING THE PERIOD OF HIS OCCUPANCY OF TEMPORARY QUARTERS, MAY NOT BE REIMBURSED FOR THE COST OF HIS WIFE'S ACCOMPANYING HIM ON THE TEMPORARY DUTY TRIP AS A HOUSEHUNTING EXPENSE IN THE ABSENCE OF ADVANCE AUTHORIZATION. SUBSEQUENT AUTHORIZATION FOR A HOUSEHUNTING TRIP GIVEN ON THE BASIS OF AN AFTER-THE-FACT DETERMINATION THAT AUTHORIZATION OF SUCH EXPENSES WOULD HAVE RESULTED IN REDUCED COST TO THE GOVERNMENT FURNISHES NO BASIS FOR PAYMENT.

PATRICK J. TWOHIG - EXPENSES INCURRED INCIDENT TO HOUSEHUNTING TRIP OF WIFE:

THIS DECISION IS RENDERED AT THE REQUEST OF MR. PATRICK J. TWOHIG, AN ACTION EMPLOYEE, FOR RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION'S (NOW CLAIMS DIVISION) SETTLEMENT CERTIFICATE NO. Z-2555896, JUNE 10, 1975, DISALLOWING HIS CLAIM FOR REIMBURSEMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY HIS WIFE IN LOCATING A RESIDENCE AT HIS NEW DUTY STATION IN SAN FRANCISCO, CALIFORNIA.

MR. TWOHIG'S CLAIM FOR THE $453.75 IN QUESTION ARISES IN CONNECTION WITH HIS CHANGE OF OFFICIAL STATION FROM WASHINGTON, D.C., TO SAN FRANCISCO, CALIFORNIA. THE TRAVEL ORDER ORIGINALLY ISSUED IN SEPTEMBER OF 1972 IN CONNECTION WITH THAT PERMANENT CHANGE OF STATION INCLUDED AUTHORIZATION FOR PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES AND EXPENSES FOR TEMPORARY STORAGE OF HOUSEHOLD EFFECTS AT THE NEW DUTY STATION BUT DID NOT AUTHORIZE A HOUSEHUNTING TRIP. HOWEVER, ON SEPTEMBER 6, 1972, THE EMPLOYEE WAS ISSUED ORDERS FOR A TEMPORARY DUTY ASSIGNMENT FOR THE PURPOSE OF ATTENDING A TRAINING PROGRAM IN THE SAN FRANCISCO AREA. MR. TWOHIG STATES THAT HIS SUPERVIOR ALLOWED HIM TO SPEND TIME DURING THE COURSE OF THAT TEMPORARY DUTY ASSIGNMENT IN LOCATING A NEW RESIDENCE AND THAT IT WAS FOR THIS REASON THAT HIS WIFE ACCOMPANIED HIM IN MAKING THE TRIP. WHILE IN SAN FRANCISCO THEY LOCATED AND ENTERED INTO A CONTRACT FOR THE PURCHASE OF A NEW HOME.

THE EMPLOYEE ENTERED ON DUTY IN SAN FRANCISCO ON OCTOBER 1, 1972, WHERE HE OCCUPIED TEMPORARY QUARTERS ALONE FOR THE PERIOD FROM OCTOBER 2 THROUGH OCTOBER 12, 1972. UPON HIS DEPENDENTS' ARRIVAL IN SAN FRANCISCO ON OCTOBER 13, 1972, MR. TWOHIG TERMINATED HIS OCCUPANCY OF TEMPORARY QUARTERS AND THE FAMILY MOVED INTO ITS NEW HOME.

IN FEBRUARY OF 1973 THE SAN FRANCISCO REGIONAL OFFICE AMENDED MR. TWOHIG'S TRAVEL ORDER TO AUTHORIZE A HOUSEHUNTING TRIP FOR HIS WIFE TO COVER THE EXPENSE OF HER TRIP TO SAN FRANCISCO IN SEPTEMBER, 1972. THE EMPLOYEE'S CLAIM FOR $453.75 FOR HIS WIFE'S TRAVEL EXPENSES IS MADE PURSUANT TO THE AMENDED TRAVEL ORDER. HIS CLAIM WAS INITIALLY DISALLOWED BY ACTION HEADQUARTERS AND SUBSEQUENTLY BY OUR TRANSPORTATION AND CLAIMS DIVISION. BOTH DISALLOWANCES WERE PREDICATED ON THE INEFFICACY OF THE SUBSEQUENTLY AMENDED TRAVEL ORDER TO PROVIDE A BASIS FOR PAYMENT OF HOUSEHUNTING EXPENSES GIVEN THE REGULATORY REQUIREMENT THAT HOUSEHUNTING TRIPS BE EXPRESSLY AUTHORIZED IN ADVANCE.

MR. TWOHIG TAKES EXCEPTION TO THE DISALLOWANCE OF HIS CLAIM, SUGGESTING THAT THE QUESTION OF ENTITLEMENT OUGHT NOT TO BE GOVERNED BY THE EXISTENCE OR NONEXISTENCE OF ADVANCE APPROVAL, BUT BY CONSIDERATIONS OF COST SAVING TO THE GOVERNMENT. HIS SPECIFIC ARGUMENT IN THIS REGARD IS AS FOLLOWS:

"IT SEEMS THAT YOUR LETTER IS SAYING THAT, IN SPITE OF SAVING THE GOVERNMENT MONEY, IT WOULD HAVE BEEN BETTER FOR ME TO PUT MY HOUSEHOLD GOODS IN STORAGE AND PUT MY FAMILY IN A HOTEL AT CONSIDERABLE EXPENSE TO THE GOVERNMENT. I ESTIMATE THAT BY FINDING A HOUSE DURING MY TRIP HERE, IT SAVED THE GOVERNMENT $1500. I FAIL TO UNDERSTAND YOUR LOGIC IN SAYING THAT THE MORE EXPENSIVE PROCEDURE WOULD HAVE BEEN ALLOWED AND THE LESS EXPENSIVE PROCEDURE DISALLOWED. YOU DISALLOWED MY CLAIM BECAUSE I DID NOT HAVE PRIOR APPROVAL FOR THE HOUSEHUNTING TRIP. OBVIOUSLY, I DID NOT AND COULD NOT HAVE HAD PRIOR APPROVAL SINCE I COULD NOT FORSEE THAT I WOULD FIND A HOUSE. HAVING FOUND THE HOUSE, IT BECAME CLEAR TO EVERYONE INVOLVED THAT THIS WOULD SAVE THE GOVERNMENT MONEY AND, THEREFORE, IT SHOULD BE AUTHORIZED. YOUR REASONING THAT PRIOR APPROVAL IS THE KEY ISSUE IS DIFFICULT TO UNDERSTAND. THE KEY ISSUE IS: WHICH WAY WAS THE LESS EXPENSIVE TO THE FEDERAL GOVERNMENT."

IN MR. TWOHIG'S CASE, THE FACT THAT HE WAS ABLE TO LOCATE A NEW RESIDENCE IN SAN FRANCISCO PRIOR TO THE EFFECTIVE DATE OF HIS TRANSFER IS LARGELY ATTRIBUTABLE TO HIS TEMPORARY DUTY ASSIGNMENT. APPARENTLY, THE FACT OF THAT TEMPORARY DUTY ASSIGNMENT - THE ORDERS FOR WHICH WERE DRAWN AT ABOUT THE SAME TIME HIS CHANGE OF STATION ORDERS WERE ISSUED - INFLUENCED THE ADMINISTRATIVE DETERMINATION NOT TO AUTHORIZE A HOUSEHUNTING TRIP IN MR. TWOHIG'S CASE. SUCH ACTION ON THE PART OF AUTHORIZING OFFICIALS IS IN ACCORDANCE WITH POLICY GUIDELINES SET FORTH AT FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-4.1 (MAY 1973). SUBPARAGRAPH 2-4.1A THEREOF STATES THAT PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES FOR THE PURPOSE OF A HOUSEHUNTING TRIP MAY BE AUTHORIZED WHEN CIRCUMSTANCES WARRANT. PROVIDING GUIDANCE AS TO CIRCUMSTANCES THAT DO OR DO NOT WARRANT AUTHORIZATION OF A HOUSEHUNTING TRIP, SUBPARAGRAPH 2-4.1C STATES THAT THE FACT THAT AN EMPLOYEE MAY BE ON TEMPORARY DUTY AT THE NEW STATION BEFORE THE ACTUAL TRANSFER MAY OBVIATE THE NEED FOR A SPECIAL TRIP TO THE NEW STATION FOR HOUSEHUNTING PURPOSES. THE SPECIFIC LANGUAGE OF FTR PARA. 2-4.1C PROVIDES IN PERTINENT PART AS FOLLOWS:

"C. IN OTHER SITUATIONS, IT MAY BE LESS COSTLY TO ALLOW THE EMPLOYEE AND HIS FAMILY TO REMAIN IN TEMPORARY QUARTERS AT THE NEW OFFICIAL STATION FOR A LONGER PERIOD THAN MIGHT OTHERWISE BE REQUIRED, SUBJECT TO THE LIMITATIONS OF 2-5, UNTIL PERMANENT QUARTERS ARE FOUND. IF TEMPORARY QUARTERS ARE TO BE AUTHORIZED, A TRIP FOR SEEKING PERMANENT RESIDENCE QUARTERS MAY BE AVOIDED. SIMILARLY, IT MAY BE LESS COSTLY TO THE GOVERNMENT AND MORE SATISFACTORY TO THE EMPLOYEE FOR THE EMPLOYEE'S IMMEDIATE FAMILY TO REMAIN AT THE RESIDENCE IN THE OLD OFFICIAL STATION LOCALITY AFTER THE EMPLOYEE HAS REPORTED AT HIS NEW OFFICIAL STATION AND HAS TIME TO SELECT PERMANENT QUARTERS AFTER HE HAS HAD AN OPPORTUNITY TO BECOME MORE FAMILIAR WITH NEIGHBORHOODS, LOCAL TRANSPORTATION FACILITIES, SCHOOLS, AND THE HOUSING MARKET. IN SOME INSTANCES THE EMPLOYEE MAY BE ON TEMPORARY DUTY AT THE NEW STATION FOR A PERIOD BEFORE THE ACTUAL TRANSFER BECOMES EFFECTIVE. UNDER THESE CIRCUMSTANCES A SPECIAL TRIP BY THE EMPLOYEE TO THE NEW OFFICIAL STATION FOR THE PURPOSE OF FINDING QUARTERS SHOULD NOT BE NECESSARY. ***"

WHILE IT APPEARS THAT THE CIRCUMSTANCE OF MR. TWOHIG'S TEMPORARY DUTY ASSIGNMENT SHORTLY BEFORE THE DATE OF HIS TRANSFER WAS REGARDED AS PROVIDING HIM AN OPPORTUNITY TO LOCATE A NEW RESIDENCE, HE SEEMS TO FEEL THAT THE GOVERNMENT WAS OBLIGED TO PROVIDE FOR HIS WIFE TO ACCOMPANY HIM ON THAT TEMPORARY DUTY ASSIGNMENT. AS INDICATED BY THE ABOVE-QUOTED REGULATION, THERE IS NO REQUIREMENT THAT AN EMPLOYEE BE AUTHORIZED A HOUSEHUNTING TRIP. NOR IS THERE ANY REQUIREMENT THAT AN EMPLOYEE NOT AUTHORIZED A HOUSEHUNTING TRIP BE PROVIDED AN ALTERNATE OPPORTUNITY TO SEEK NEW RESIDENCE QUARTERS IN ADVANCE OF HIS ACTUAL TRANSFER TO THE NEW DUTY STATION. HOWEVER, REGARDLESS OF WHETHER AN EMPLOYEE IS AUTHORIZED AN ACTUAL HOUSEHUNTING TRIP OR, AS IN MR. TWOHIG'S CASE, IS PROVIDED AN ALTERNATE OPPORTUNITY TO SEEK QUARTERS IN ADVANCE OF TRANSFER, THERE IS NO REQUIREMENT THAT THE OPPORTUNITY EXTEND TO HIS SPOUSE. FTR PARA. 2-4.1A (MAY 1973) GIVES THE AGENCY INVOLVED DISCRETION AS TO WHETHER THE BENEFIT OF A HOUSEHUNTING TRIP SHOULD BE EXTENDED TO THE EMPLOYEE OR HIS SPOUSE, OR TO BOTH. THE LANGUAGE OF THAT SUBSECTION IS, IN PERTINENT PART, AS FOLLOWS:

"PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF THE EMPLOYEE AND SPOUSE TRAVELING TOGETHER, OR THE EMPLOYEE OR SPOUSE TRAVELING INDIVIDUALLY IN LIEU OF TRAVEL BY THE OTHER OR TOGETHER, FOR ONE ROUND TRIP BETWEEN THE LOCALITIES OF THE OLD AND NEW DUTY STATIONS FOR THE PURPOSE OF SEEKING RESIDENCE QUARTERS, MAY BE AUTHORIZED WHEN CIRCUMSTANCES WARRANT. ***"

WHILE WE CAN UNDERSTAND THAT IT MAY BE MORE CONVENIENT TO THE EMPLOYEE TO BE ACCOMPANIED BY HIS OR HER SPOUSE IN SEEKING NEW RESIDENCE QUARTERS, THERE IS NO OBLIGATION ON THE PART OF THE GOVERNMENT TO AFFORD THE EMPLOYEE THAT CONVENIENCE.

IT IS MR. TWOHIG'S FURTHER CONTENTION THAT AN AFTER-THE-FACT CONSIDERATION OF RELATIVE COST GOVERNS THE QUESTION OF WHETHER OR NOT THE GOVERNMENT SHOULD BEAR THE EXPENSE OF HIS AND/OR HIS WIFE'S HOUSEHUNTING EFFORTS. THAT IS, MR. TWOHIG SUGGESTS THAT THE DETERMINATION OF ENTITLEMENT IS TO BE MADE AT SOME POINT IN TIME AFTER HIS TRANSFER BASED ON A CONSIDERATION OF THE FACT THAT HIS SUCCESSFUL HOUSEHUNTING EFFORTS RESULTED IN A SAVING TO THE GOVERNMENT OVER THE AMOUNT THAT WOULD HAVE BEEN REIMBURSABLE IF HE HAD NOT UNDERTAKEN TO LOCATE A RESIDENCE UNTIL HIS AND HIS FAMILY'S OCCUPANCY OF TEMPORARY QUARTERS AT THE NEW DUTY STATION.

THE APPLICABLE REGULATIONS DO NOT AUTHORIZE A RETROACTIVE DETERMINATION OF ENTITLEMENT. THE FOLLOWING LANGUAGE OF FTR 2-4.3C (MAY 1973) EXPRESSLY REQUIRES ADVANCE AUTHORIZATION FOR HOUSEHUNTING TRIPS:

"C. AUTHORIZATION PRIOR TO TRIP. THE TRIP FOR FINDING RESIDENCE QUARTERS SHALL NOT BE MADE AT GOVERNMENT EXPENSE UNLESS A PERMANENT CHANGE OF STATION TRAVEL ORDER HAS BEEN ISSUED WHICH INCLUDES AUTHORIZATION FOR THE ROUND TRIP AND MODE OF TRANSPORTATION AND PERIOD OF TIME ALLOWED FOR THE TRIP, SPECIFIES THE DATE FOR REPORTING AT THE NEW OFFICIAL STATION, AND INDICATES THAT THE EMPLOYEE HAS SIGNED THE REQUIRED AGREEMENT. EMPLOYEE SHALL BE IN A DUTY STATUS DURING THE AUTHORIZED ROUND TRIP PERIOD OF ABSENCE."

UNDER THE ABOVE-QUOTED REGULATION WE HAVE HELD THAT, WITH TWO EXCEPTIONS, THE FAILURE OF ADVANCE WRITTEN AUTHORIZATION IS FATAL TO AN EMPLOYEE'S CLAIM FOR HOUSEHUNTING EXPENSES. B-175802, JULY 24, 1972; B-179449, NOVEMBER 26, 1973; B-181260, SEPTEMBER 20, 1974, AND B-182508, JUNE 3, 1975. THE FIRST CIRCUMSTANCE IN WHICH HOUSEHUNTING EXPENSES HAVE BEEN ALLOWED NOTWITHSTANDING LACK OF PRIOR WRITTEN AUTHORIZATION IS THE CASE IN WHICH LACK OF PROPER AUTHORIZATION IS THE RESULT OF AN ADMINISTRATIVE ERROR. ADMINISTRATIVE ERRORS WHICH MAY BE RETROACTIVELY CORRECTED BY SUBSEQUENT AUTHORIZATION ARE THOSE IN WHICH THE FAILURE OF ADVANCE AUTHORIZATION DOES NOT COMPORT WITH THE SPECIFIC INTENT OF THE APPROPRIATE AUTHORIZING OFFICIAL. B-179449, SUPRA. IN THIS CASE THERE IS NO INDICATION THAT THE LACK OF ADVANCE APPROVAL EVIDENCED BY MR. TWOHIG'S ORIGINAL CHANGE OF STATION ORDERS WAS THE RESULT OF SUCH AN ERROR. THE EMPLOYEE HIMSELF EXPLAINS THAT THE DENIAL OF HOUSEHUNTING AUTHORIZATION WAS A CONSEQUENCE OF THE REGIONAL DIRECTOR'S BELIEF THAT A HOUSEHUNTING TRIP WOULD PROVE UNFRUITFUL. THAT THAT BELIEF ON THE REGIONAL DIRECTOR'S PART MAY NOW APPEAR PESSIMISTIC GIVEN THE SUCCESS OF MR. TWOHIG'S HOUSEHUNTING EFFORTS PROVIDES NO BASIS FOR PAYMENT.

THE SECOND SITUATION IN WHICH THE REQUIREMENT FOR ADVANCE WRITTEN AUTHORIZATION HAS BEEN HELD LESS THAN ABSOLUTE IS THE SITUATION IN WHICH A SUBSEQUENT WRITTEN EXPRESSION OF AUTHORITY IS MERELY AN AFFIRMATION OF ADVANCE VERBAL OR OTHER INFORMAL AUTHORITY GRANTED BY AN OFFICIAL PROPERLY VESTED WITH AUTHORITY TO GRANT ENTITLEMENT TO A HOUSEHUNTING TRIP. B-170329, OCTOBER 19, 1970 AND B-175938, NOVEMBER 16, 1972. IN THE CASE AT HAND THERE APPEARS TO BE NO QUESTION OF ADVANCE ORAL AUTHORIZATION. WHILE HIS SUPERVISOR REPORTEDLY ADVISED MR. TWOHIG TO UNDERTAKE TO LOCATE A RESIDENCE DURING THE COURSE OF HIS TEMPORARY DUTY ASSIGNMENT, THAT ADVICE WAS NOT TO THE EFFECT THAT THE TEMPORARY DUTY ASSIGNMENT WAS TO BE REGARDED AS A HOUSEHUNTING TRIP, BUT RATHER THAT HE COULD USE SUCH UNOCCUPIED TIME AS WAS AT HIS DISPOSAL FOR THE PURPOSE OF LOCATING A NEW HOME. IN ADDITION, THERE IS NO INDICATION THAT THE EMPLOYEE WAS ADVISED TO TAKE HIS WIFE TO SAN FRANCISCO NOR ANY REPRESENTATION THAT THE EXPENSE OF HER TRAVEL WOULD BE REIMBURSED. MOREOVER, AS WE ARE ADVISED THAT MR. TWOHIG'S SUPERVISOR WAS WITHOUT AUTHORITY TO AUTHORIZE A HOUSEHUNTING TRIP, SUCH ADVICE AS HE MAY HAVE GIVEN IS WITHOUT LEGAL CONSEQUENCE.

FURTHER, WITH RESPECT TO MR. TWOHIG'S SUGGESTION THAT AN AFTER-THE FACT CONSIDERATION OF RELATIVE COSTS OUGHT TO GOVERN THE QUESTION OF HIS ENTITLEMENT, IT IS OUR OPINION THAT HIS PROPOSAL IN THIS REGARD WOULD PLACE AN UNDULY HEAVY BURDEN UPON AN EMPLOYEE WITH RESPECT TO LOCATING AND PURCHASING A RESIDENCE DURING THE COURSE OF SUCH INDEPENDENT HOUSEHUNTING EFFORTS AS HE MAY UNDERTAKE. IF AN EMPLOYEE IS UNABLE TO LOCATE A RESIDENCE DURING HIS HOUSEHUNTING EFFORTS OR IS UNABLE TO EFFECT ITS PURCHASE IN SUCH A MANNER AS TO PERMIT HIS OCCUPANCY WELL BEFORE THE END OF THE 30 DAY PERIOD FOR OCCUPANCY OF TEMPORARY QUARTERS, A DETERMINATION OF WHETHER THE GOVERNMENT SHOULD BEAR THE COST OF HIS HOUSEHUNTING EFFORTS BASED SOLELY ON SAVINGS TO THE GOVERNMENT COULD RESULT IN THE EMPLOYEE HIMSELF BEARING THE COST OF HOUSEHUNTING. IN ADDITION, A DETERMINATION OF NONENTITLEMENT TO HOUSEHUNTING EXPENSES WOULD HAVE THE CONSEQUENCE THAT THE TIME SPENT BY THE EMPLOYEE IN THAT ENDEAVOR WOULD BE CHARGEABLE TO HIS LEAVE ACCOUNT INSOFAR AS IT MAY HAVE OCCUPIED OTHER THAN HIS NONWORKDAYS. THE REQUIREMENT FOR ADVANCE AUTHORIZATION PROTECTS THE EMPLOYEE FROM POSSIBLY EXPENDING HIS OWN TIME AND FUNDS IN SEEKING A NEW RESIDENCE. THE EMPLOYEE'S AUTHORIZED HOUSEHUNTING TRIP IS UNSUCCESSFUL, OR IF HE CANNOT ARRANGE FOR EARLY OCCUPANCY OF PERMANENT QUARTERS WHICH HE HAS LOCATED, THERE IS NOTHING TO PRECLUDE HIS BEING AUTHORIZED REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES TO THE EXTENT POSSIBLE TO ACCOMMODATE HIS PARTICULAR SITUATION. UPON REVIEW, THE DISALLOWANCE IN THE SETTLEMENT OF JUNE 10, 1975, IS SUSTAINED.