B-199251, NOVEMBER 18, 1980, 60 COMP.GEN. 71

B-199251, NOVEMBER 18, 1980, 60 COMP.GEN. 71

OFFICERS AND EMPLOYEES - NEW APPOINTMENTS - RELOCATION EXPENSE REIMBURSEMENT AND ALLOWANCES - NON-ENTITLEMENT - POSITION OUTSIDE CONTERMINOUS UNITED STATES EMPLOYEE, WHO WAS HIRED AS A NEW APPOINTEE TO POSITION IN THE AREA FORMERLY KNOWN AS THE CANAL ZONE, WAS ERRONEOUSLY AUTHORIZED REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES ALTHOUGH SUCH REIMBURSEMENT IS NOT PERMITTED UNDER 5 U.S.C. 5723 AND PARA. 2 1.5G(2)(C) OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973). EMPLOYEE IS NOT ENTITLED TO PAYMENT FOR TEMPORARY QUARTERS AS GOVERNMENT CANNOT BE BOUND BEYOND ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR REGULATORS. EMPLOYEE MUST REPAY AMOUNTS ERRONEOUSLY PAID AS GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ERRONEOUS AUTHORIZATION OF ITS AGENT. THERE IS NO AUTHORITY FOR WAIVER UNDER 5 U.S.C. 5584.

MATTER OF: DR. FRANK A. PEAK - ERRONEOUS PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES, NOVEMBER 18, 1980:

BY LETTER DATED APRIL 30, 1980, DR. FRANK A. PEAK, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, HAS APPEALED THE SETTLEMENT BY THE CLAIMS DIVISION WHICH DISALLOWED HIS CLAIM FOR REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES. IN ITS SETTLEMENT ACTION THE CLAIMS DIVISION DISALLOWED HIS CLAIM IN THE AMOUNT OF $530 FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES AND DETERMINED THAT HIS REIMBURSEMENT BY THE ARMY IN THE AMOUNT OF $1,295.06 FOR SUCH EXPENSES WAS AN ERRONEOUS PAYMENT AND NOT SUBJECT TO WAIVER.

THE RECORD SHOWS THAT IN OCTOBER 1979 DR. PEAK WAS APPOINTED TO A POSITION AS A VETERINARY MEDICAL OFFICER WITH THE DEPARTMENT OF THE ARMY IN THE REPUBLIC OF PANAMA. ON OCTOBER 22, 1979, TRAVEL ORDERS WERE ISSUED FOR THE TRAVEL OF DR. PEAK AND HIS DEPENDENTS FROM THE UNITED STATES TO HIS PERMANENT DUTY STATION IN THE "CANAL ZONE." THE TRAVEL ORDERS, IN PART, AUTHORIZED TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR HIMSELF AND HIS WIFE.

DR. PEAK STATES THAT, AT ABOVE THE TIME HE APPLIED FOR EMPLOYMENT WITH THE DEPARTMENT OF DEFENSE FOR A POSITION IN PANAMA, HE UNDERSTOOD THAT HE WOULD RECEIVE A TEMPORARY LIVING ALLOWANCE UNTIL HE COULD OBTAIN PERMANENT QUARTERS FOR A MAXIMUM OF 90 DAYS. HE FURTHER STATES THAT UPON HIS ARRIVAL IN PANAMA HE AND HIS DEPENDENTS OCCUPIED TEMPORARY QUARTERS FOR APPROXIMATELY 42 DAYS. HE RECEIVED REIMBURSEMENT FROM THE ARMY FOR $1,295.06 FOR THE COST OF TEMPORARY QUARTERS SUBSISTENCE AND HE NOW CLAIMS THAT HE IS ENTITLED TO AN ADDITIONAL $530 INCIDENT TO THE OCCUPANCY OF TEMPORARY QUARTERS.

ON FEBRUARY 12, 1980, THE DEPARTMENT OF THE ARMY ADVISED DR. PEAK THAT THE AUTHORIZATION OF REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE WAS ERRONEOUS AND THAT TEMPORARY QUARTERS SUBSISTENCE EXPENSES ARE NOT PAYABLE TO NEW APPOINTEES ASSIGNED TO A FIRST DUTY STATION. HE WAS FURTHER ADVISED THAT AS HE WAS REAPPOINTED AFTER A BREAK IN SERVICE HE WAS A NEW EMPLOYEE. ACCORDINGLY, WE WAS INFORMED THAT HE WOULD BE REQUIRED TO REFUND THE PAYMENT HE HAD RECEIVED FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES IN THE AMOUNT OF $1,295.06.

THE CLAIMS DIVISION, BY CERTIFICATE OF SETTLEMENT DATED APRIL 15, 1980, DISALLOWED DR. PEAK'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES ON THE BASIS THAT AS A NEW APPOINTEE HE WAS NOT INTITLED TO REIMBURSEMENT FOR SUCH EXPENSES. HE WAS ALSO ADVISED THAT HIS INDEBTEDNESS FOR THE ERRONEOUS PAYMENT COULD NOT BE WAIVED UNDER 5 U.S.C. 5584 AS THAT STATUTE DOES NOT ALLOW WAIVER OF ERRONEOUS PAYMENTS OF TRAVEL AND TRANSPORTATION EXPENSES.

UPON APPEAL DR. PEAK CONTENDS THAT HE IS ENTITLED TO PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES ON THE BASIS THAT HIS TRAVEL ORDERS AUTHORIZED REIMBURSEMENT FOR SUCH EXPENSES. HE SUGGESTS THAT THE GOVERNMENT IS CONTRACTUALLY BOUND BY THAT AUTHORIZATION BECAUSE HE ACCEPTED THE POSITION IN PANAMA IN RELIANCE ON THIS INDICATION THAT HE WOULD BE PAID TEMPORARY QUARTERS SUBSISTENCE EXPENSES.

SECTION 5923 OF TITLE 5, U.S.C. PROVIDES, IN PART, THAT AN EMPLOYEE AND HIS FAMILY MAY RECEIVE A QUARTERS ALLOWANCE FOR THE REASONABLE COST OF TEMPORARY QUARTERS FOR A PERIOD NOT IN EXCESS OF 3 MONTHS AFTER FIRST ARRIVING AT A NEW POST IN A FOREIGN AREA.

FOR PURPOSES OF ENTITLEMENT TO OVERSEAS DIFFERENTIALS AND ALLOWANCES UNDER SUBCHAPTER III OF CHAPTER 59 OF TITLE 5, U.S.C.INCLUDING TEMPORARY LODGING ALLOWANCE UNDER SECTION 5923 OF TITLE 5, U.S.C. 5 U.S.C. 5921(6)(1976) DEFINES "FOREIGN AREA" AS FOLLOWS:

(A) THE TRUST TERRITORY OF THE PACIFIC ISLANDS; AND (B) ANY OTHER AREA OUTSIDE THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, AND TERRITORIES AND POSSESSIONS OF THE UNITED STATES. * * *

UNDER THE PANAMA CANAL TREATY EFFECTIVE OCTOBER 1, 1979, THE REPUBLIC OF PANAMA REGAINED FULL SOVEREIGNTY OVER THE CANAL ZONE. SECTION 3(B) OF THE IMPLEMENTING LEGISLATION, THE PANAMA CANAL ACT OF 1979, PUBLIC LAW 96-70, SEPTEMBER 27, 1979, 93 STAT. 455 (22 U.S.C. 3602), PROVIDES IN PART THAT:

* * * FOR PURPOSES OF APPLYING THE CANAL ZONE CODE OR OTHER LAWS OF THE UNITED STATES AND REGULATIONS ISSUED PURSUANT TO SUCH CODE OR OTHER LAWS TO TRANSACTIONS, OCCURRENCES, OR STATUS ON OR AFTER THE EFFECTIVE DATE OF THIS ACT:

(1) "CANAL ZONE" SHALL BE DEEMED TO REFER TO THE AREAS AND INSTALLATIONS IN THE REPUBLIC OF PANAMA MADE AVAILABLE TO THE UNITED STATES PURSUANT TO THE PANAMA CANAL TREATY OF 1977 AND RELATED AGREEMENTS.

THE EFFECT OF SECTION 3(B) IS TO REDEFINE THE TERM "CANAL ZONE" INSOFAR AS LAWS OF THE UNITED STATES WHICH REFER TO THE CANAL ZONE APPLY TO EVENTS OCCURRING AFTER THE EFFECTIVE DATE OF THE PANAMA CANAL TREATY. SEE H. REPT. NO. 96-98, PART 1, P. 41. ACCORDINGLY, THAT AREA FORMERLY KNOWN AS THE CANAL ZONE WHICH HAS NOW BEEN REDEFINED AS THE AREAS AND INSTALLATIONS IN THE REPUBLIC OF PANAMA MADE AVAILABLE TO THE UNITED STATES PURSUANT TO THE PANAMA CANAL TREATY OF 1977 AND RELATED AGREEMENTS, CONTINUES TO BE OUTSIDE THE DEFINITION OF "FOREIGN AREA" FOR PURPOSES OF OVERSEAS DIFFERENTIALS AND ALLOWANCES.

AS DR. PEAK WAS STATIONED IN THAT PART OF THE REPUBLIC OF PANAMA, WHICH BY DEFINITION IS NOT A "FOREIGN AREA" FOR PURPOSES OF OVERSEAS DIFFERENTIALS AND ALLOWANCES HE IS NOT ENTITLED TO A TEMPORARY LODGING ALLOWANCE UNDER 5 U.S.C. 5923.

THE ENTITLEMENT TO TRAVEL AND RELOCATION EXPENSES OF EMPLOYEES TRANSFERRING TO A POST OF DUTY IN THE AREA FORMERLY KNOWN AS THE PANAMA CANAL ZONE IS GOVERNED BY THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101- 7) (MAY 1973).

NEW APPOINTEES TO POSITIONS OUTSIDE THE CONTERMINOUS UNITED STATES ARE ENTITLED ONLY TO THE TRAVEL AND TRANSPORTATION EXPENSES LISTED AT PARAGRAPH 2-1.5G(2)(B) OF THE FTR. AS SPECIFICALLY NOTED AT FTR PARA. 2- 1.5G(2)(C), NEW APPOINTEES TO POSITIONS OVERSEAS ARE NOT ENTITLED TO CERTAIN ALLOWANCES PAYABLE TO TRANSFERRED EMPLOYEES UNDER 5 U.S.C. 4724 AND 5724A, INCLUDING TEMPORARY QUARTERS SUBSISTENCE EXPENSES. PROVIDING THAT THESE AND OTHER ALLOWANCES ARE NOT PAYABLE TO NEW APPOINTEES, THE CITED REGULATIONS MERELY REFLECT THE EXTENT OF AUTHORITY GRANTED BY 5 U.S.C. 5722 TO PAY TRAVEL AND TRANSPORTATION EXPENSES FOR NEW APPOINTEES TO POSITIONS OVERSEAS. THE EXPENSES THAT MAY BE PAID TO NEW APPOINTEES TO SHORTAGE-CATEGORY POSITIONS WITHIN THE UNITED STATES ARE SIMILARLY LIMITED. SEE 5 U.S.C. 5723 AND FTR PARA. 2 1.5F(4).

SINCE DR. PEAK WAS A NEW APPOINTEE AT THE TIME HE TRAVELED TO HIS DUTY STATION IN THE FORMER CANAL ZONE AREA, THERE IS NO AUTHORITY BY WHICH HE MAY BE AUTHORIZED REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES.

WE RECOGNIZE THAT DR. PEAK WAS FURNISHED TRAVEL ORDERS WHICH PURPORTED TO AUTHORIZE REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES AND WE DO NOT DISPUTE THAT HE MAY HAVE RELIED ON THIS ERRONEOUS AUTHORIZATION IN DETERMINING TO ACCEPT THE POSITION IN THE FORMER CANAL ZONE AREA. UNFORTUNATELY, THIS COMBINATION OF CIRCUMSTANCES DOES NOT PROVIDE A BASIS TO PAY DR. PEAK THE TEMPORARY QUARTERS SUBSISTENCE EXPENSES CLAIMED OR TO RELIEVE HIM OF RESPONSIBILITY TO REFUND THE AMOUNT ERRONEOUSLY PAID TO HIM.

IT IS A WELL-SETTLED RULE OF LAW THAT THE GOVERNMENT CANNOT BE BOUND BEYOND THE ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR BY REGULATION. SEE MATTER OF REZA FASSIHI, 54 COMP.GEN. 747(1975), AND CASES CITED THEREIN. THE GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING UNAUTHORIZED ACTS TAKEN BY ONE OF ITS OFFICIALS. MATTER OF JOSEPH PRADARITS, 56 COMP.GEN. 131(1976). ANY PAYMENTS MADE ON THE BASIS OF SUCH ERRONEOUS AUTHORIZATIONS ARE RECOVERABLE. MATTER OF T. N. BEARD, B-187173, OCTOBER 4, 1976.

WE NOTE THAT FEDERAL EMPLOYMENT DOES NOT GIVE RISE TO A CONTRACTUAL RELATIONSHIP IN THE CONVENTIONAL SENSE. BERS V. UNITED STATES, 207 CT.CL. 941(1975). THUS, THERE IS NO BASIS TO CONSIDER HIS CLAIM FOR ALLOWANCE UPON CONTRACT LAW.

CONCERNING DR. PEAK'S REQUEST FOR WAIVER OF THE INDEBTEDNESS RESULTING FROM THE ERRONEOUS PAYMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES, THE AUTHORITY TO WAIVE ERRONEOUS OVERPAYMENTS UNDER 5 U.S.C. 5584 IS SPECIFICALLY LIMITED TO PAYMENTS OF PAY OR ALLOWANCES "OTHER THAN TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES AND RELOCATION EXPENSES." SINCE THE TEMPORARY QUARTERS SUBSISTENCE EXPENSES ARE RELOCATION EXPENSES, THERE IS NO AUTHORITY TO CONSIDER FOR WAIVER THE ERRONEOUS PAYMENTS MADE TO DR. PEAK.

ACCORDINGLY, WE SUSTAIN THE ACTION OF THE CLAIMS DIVISION IN DISALLOWING DR. PEAK'S CLAIM AND DENYING WAIVER.