B-209953, MAY 18, 1983

B-209953, MAY 18, 1983

DIGEST: EMPLOYEE WHO WAS TRANSFERRED TO WASHINGTON, D.C., FROM HANSCOM AIR FORCE BASE, MASSACHUSETTS, INCIDENT TO A REDUCTION IN FORCE MAY NOT BE RELIEVED OF COST OF SHIPPING HOUSEHOLD GOODS IN EXCESS OF HIS AUTHORIZED WEIGHT. ALTHOUGH REDUCTION-IN-FORCE ACTION THAT RESULTED IN TRANSFER WAS CANCELLED, THE GOVERNMENT MAY NOT INCUR CHARGES FOR COST OF SHIPPING GOODS IN EXCESS OF WEIGHT AUTHORIZED BY 5 U.S.C. SEC. 5724(A).

HENRY R. RADOSKI:

BY LETTER OF NOVEMBER 5, 1982, MR. HENRY R. RADOSKI, APPEALED THE ACTION OF CLAIMS GROUP, AFMD, IN SETTLEMENT CERTIFICATE NO. Z-2821719, ISSUED OCTOBER 29, 1982, WHICH DISALLOWED HIS CLAIM FOR THE COST OF SHIPPING HOUSEHOLD GOODS IN EXCESS OF THE AUTHORIZED WEIGHT. WE AFFIRM THE DENIAL OF MR. RADOSKI'S CLAIM SINCE THERE IS NO AUTHORITY TO PAY FOR THE SHIPMENT OF HOUSEHOLD GOODS IN EXCESS OF THE AUTHORIZED WEIGHTS CONTAINED IN VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (2 JTR), PARAGRAPH C8000, EVEN THOUGH THE REDUCTION-IN-FORCE ACTION THAT RESULTED IN THE EMPLOYEE'S TRANSFER WAS DETERMINED TO HAVE BEEN IMPROPER.

MR. RADOSKI, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WAS TRANSFERRED FROM HANSCOM AIR FORCE BASE, MASSACHUSETTS, TO BOLLING AIR FORCE BASE, WASHINGTON, D.C., UNDER TRAVEL AUTHORIZATION NO. A-553, DATED JUNE 18, 1976, AS AMENDED. HE WAS AUTHORIZED TRANSPORTATION OF THE MAXIMUM AMOUNT OF HOUSEHOLD GOODS AS PROVIDED BY 5 U.S.C. SEC. 5724(A) UNDER A GOVERNMENT BILL OF LADING. THE ACTUAL WEIGHT OF GOODS SHIPPED BY MR. RADOSKI EXCEEDED THAT MAXIMUM AMOUNT, AND HE WAS BILLED BY THE AIR FORCE FOR $606.40, THE COST OF SHIPPING THE EXCESS GOODS.

MR. RADOSKI CONTENDS THAT HE SHOULD NOT BE REQUIRED TO PAY THE COST OF SHIPPING THE EXCESS WEIGHT BECAUSE HE WAS TRANSFERRED AS A RESULT OF A REDUCTION-IN-FORCE ACTION WHICH WAS SUBSEQUENTLY CANCELLED BY THE APPEALS REVIEW BOARD, UNITED STATES CIVIL SERVICE COMMISSION, ON AUGUST 31, 1978. MR. RADOSKI BELIEVES THAT SINCE THE REDUCTION-IN-FORCE PROCEDURE WHICH CAUSED HIS TRANSFER WAS INVALIDATED, HE SHOULD NOT BE HELD LIABLE FOR THE EXCESS MOVING COSTS INCURRED INCIDENT TO HIS TRANSFER.

IN MATTER OF BUCHENHORST, B-194447, AUGUST 7, 1979, WE CONSIDERED THE CONSEQUENCE OF THE CIVIL SERVICE COMMISSION'S ACTION IN RESTORING AN EMPLOYEE TO HIS POSITION AT HIS OLD DUTY STATION WHERE THE REDUCTION IN- FORCE PROCEDURES THAT LED TO THE EMPLOYEE'S TRANSFER TO HIS NEW DUTY STATION WERE FOUND TO HAVE BEEN DEFECTIVE. WE HELD THAT THIS DETERMINATION DID NOT CONVERT THE NEW DUTY STATION FROM A PERMANENT TO A TEMPORARY DUTY STATION FOR THE PURPOSE OF ENTITLING HIM TO TEMPORARY DUTY RATHER THAN RELOCATION EXPENSES. IN THIS AND SIMILAR CASES HOLDING THAT THE EMPLOYEE'S ENTITLEMENT TO RELOCATION EXPENSES IS DETERMINED BY THE CHARACTER OF THE ASSIGNMENT, EVEN THOUGH THE ASSIGNMENT MAY LATER HAVE BEEN FOUND IMPROPER, WE HAVE RELIED IN PART ON THE FACT THAT THE BACK PAY ACT, 5 U.S.C. SEC. 5596, IS NOT INDEPENDENT AUTHORITY TO PAY TRAVEL OR RELOCATION EXPENSES. MATTER OF STREETER, B-191056, JUNE 5, 1978. ANY SUCH EXPENSES MUST BE PAID UNDER A SPECIFIC TRAVEL OR TRANSPORTATION EXPENSE AUTHORITY SUCH AS IS CONTAINED IN CHAPTER 57 OF TITLE 5 OF THE UNITED STATES CODE.

SECTION 5724(A) OF TITLE 5, U.S.C. SETS FORTH THE MAXIMUM WEIGHT OF HOUSEHOLD GOODS AUTHORIZED TO BE TRANSPORTED INCIDENT TO A TRANSFER. IMPLEMENTING REGULATIONS ARE FOUND AT 2 JTR C8000. THERE IS NO AUTHORITY TO PERMIT TRANSPORTATION OF HOUSEHOLD GOODS IN EXCESS OF THE STATUTORY WEIGHT LIMITATION. THEREFORE, REGARDLESS OF THE REASONS FOR THE SHIPMENT OF THE EXCESSIVE WEIGHT OF HOUSEHOLD GOODS, THE LAW DOES NOT PERMIT PAYMENT BY THE GOVERNMENT OF CHARGES INCURRED INCIDENT TO SHIPMENT OF THE EXCESS WEIGHT. SEE MATTER OF ROACH, B-194441, SEPTEMBER 18, 1979.

WAIVERS OF CERTAIN CLAIMS OF THE UNITED STATES AGAINST A PERSON ARISING OUT OF ERRONEOUS PAYMENTS OF PAY OR ALLOWANCES ARE AUTHORIZED WHEN COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES UNDER 5 U.S.C. SEC. 5584. HOWEVER, SUCH WAIVER AUTHORITY DOES NOT EXTEND TO INDEBTEDNESS RESULTING FROM PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES AND RELOCATION EXPENSES PAYABLE UNDER 5 U.S.C. SEC. 5724(A). SEE 4 C.F.R. SEC. 91.2(C); ROACH, SUPRA.

ACCORDINGLY, THE DISALLOWANCE OF MR. RADOSKI'S CLAIM IS SUSTAINED.