B-234931, Nov 29, 1989

B-234931, Nov 29, 1989

CIVILIAN PERSONNEL - Relocation - Residence transaction expenses - Reimbursement - Eligibility - Permanent duty stations DIGEST: An employee's claim for real estate expenses arising from the sale of a home in Tucson, Arizona, his residence at the time he accepted a new appointment in St. Louis, Missouri, may not be reimbursed in connection with his subsequent transfer from St. Louis to Kansas City. The residence did not qualify for real estate expenses pursuant to the transfer because it was not located at the employee's old official duty station, and the expenses are not payable based on his initial appointment because as a general rule new appointees are not eligible for any relocation expenses. The claim is not appropriate for submission to Congress as a meritorious claim under 31 U.S.C. Sec. 3702(d), because although the employee was erroneously authorized real estate expenses the record does not demonstrate reasonable reliance on the authorization.

Honorable John C. Danforth United States Senator:

This is in response to your March 17, 1989, request that we review the claim of your constituent, Mr. Vernon C. Bottenfield, an employee of the Defense Mapping Agency (DMA). Mr. Bottenfield is seeking reimbursement for amounts he has repaid the government covering real estate expenses he erroneously received in association with his relocation from St. Louis to Kansas City, Missouri. For the reasons explained below, we find no basis for allowing Mr. Bottenfield's claim for the real estate expenses in question.

The facts relevant to Mr. Bottenfield's claim are as follows. In January 1983, Mr. Bottenfield received a new appointment to a position with DMA and was assigned to St. Louis for an indefinite period of classroom and on -the-job training. In a letter notifying Mr. Bottenfield of his selection for the position, DMA advised him that he could not be paid expenses of moving from his residence in Tucson, Arizona, to St. Louis. Mr. Bottenfield reported for duty in St. Louis but continued to maintain his residence in Tucson.

During his assignment in St. Louis, Mr. Bottenfield accepted a transfer to Kansas City, Missouri. DMA authorized Mr. Bottenfield relocation expenses associated with that transfer, including real estate expenses. The agency paid Mr. Bottenfield $4,986.50 for the expenses of selling his home in Tucson but later decided that that payment was erroneous because Tucson never was Mr. Bottenfield's official duty station. When the agency realized its error, it issued Mr. Bottenfield a notification of indebtedness and subsequently proceeded to deduct amounts from his salary to cover his debt to the government. According to agency officials, Mr. Bottenfield has repaid all but a small portion of the amount he owes. currently is claiming an entitlement to these real estate expenses and also questions why he has not yet been paid for his expenses of purchasing a new residence in Kansas City.

Authority for paying a transferred employee's real estate expenses is provided in 5 U.S.C. Sec. 5724a and implementing regulations located in the Federal Travel Regulations (FTR), incorp. by ref., 41 C.F.R. 101-7 (1988). Under the statute and regulations, an employee may be reimbursed for the expenses of selling a residence only if the residence was located at an old official duty station. FTR para. 2 6.1. The FTR further specifies that the old residence must be a residence from which the employee regularly has commuted to and from work, except in limited situations where an employee is assigned to a remote area. FTR paras. 6.1(b) and 2-1.4(i).

The residence Mr. Bottenfield sold was located in Tucson, Arizona, not at his official duty station in St. Louis, and he did not regularly commute between the two points. Therefore, under the rules cited above, he is not entitled to be reimbursed for the expenses of selling his residence in Tucson pursuant to his transfer from St. Louis to Kansas City. Furthermore, Mr. Bottenfield cannot be reimbursed for the expenses of selling his Tucson residence on the basis of his initial appointment to the position in St. Louis because, as a general rule, new appointees are not entitled to receive any relocation expenses. John Macivor, B-196298, Apr. 23, 1980; Duane S. Hardesty, B-191111, Mar. 31, 1978.

Mr. Bottenfield suggests that he should be allowed expenses associated with selling his Tucson home for several reasons, one of which is that DMA had authorized him reimbursement for real estate expenses in connection with his transfer. However, it is a well settled rule of law that the government cannot be bound beyond the actual authority conferred upon its agents and employees by statute or by regulations. See M. Reza Fassihi, 54 Comp.Gen. 747 (1975), and court cases cited therein. Therefore, the government is not precluded from repudiating unauthorized acts of its agents or employees, and any payments made on the basis of such erroneous authorizations are recoverable. See Joseph Pradarits, 56 Comp.Gen. 131 (1976).

There are only two means by which this Office can take action to relieve a claimant of his legal obligation to repay expenses which have been erroneously authorized, and neither of these is appropriate in Mr. Bottenfield's case. First, although our authority in 5 U.S.C. Sec. 5584 to waive the collection of overpayments to employees was amended in 1985 to permit waiver of erroneous payments for travel and relocation expenses, the payments to Mr. Bottenfield predated that amendment and therefore are not eligible for waiver consideration. Secondly, this Office will exercise its authority to submit claims to the Congress under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d), only if the claim presents such substantial legal or equitable elements as to be deserving of consideration by the Congress. We have held that the requisite equitable elements may be presented by a claim based on erroneous advice or authorizations furnished by a government official, but only if the claimant demonstrates reasonable reliance on the advice or authorization. See John H. Teele, 65 Comp.Gen.679 (1986); Lowell W. Cossairt, B-224711, Jan. 8, 1987.

The record in Mr. Bottenfield's case does not demonstrate that he reasonably relied on advice from DMA in incurring expenses associated with the sale of his home in Tucson. In its letter informing Mr. Bottenfield of his selection for a position with the agency, DMA specifically advised him that the agency was unable to pay any travel or moving expenses associated with his relocation from Tucson to St. Louis. In view of this specific advice, Mr. Bottenfield should have been aware that the expenses of selling his Tucson residence would not become payable simply by virtue of his subsequent reassignment from St. Louis to Kansas City. Under the circumstances, Mr. Bottenfield's case is not appropriate for submission to the Congress as a meritorious claim.

In addition to his claim for expenses associated with the sale of his Tucson home, Mr. Bottenfield is claiming real estate expenses related to the purchase of a home in Kansas City pursuant to his transfer there. According to accounting and finance officials at DMA, the agency currently is in the process of reimbursing Mr. Bottenfield for all allowable expenses related to the purchase of his Kansas City residence.

We are enclosing copies of the decisions cited above, with the hope that this information will assist you in responding to your constituent.