XXXXX, B-180748
| Decision Date | 03 October 1974 |
| Docket Number | B-180748 |
| Court | Comptroller General of the United States |
| Parties | XXXXX |
1. Employee living in Florida at time of reinstatement in manpower shortage position in pittsburgh, whose family continued to reside in Florida until almost two years after his transfer from pittsburgh to Washington, is not entitled to temporary quarters allowance for quarters occupied with his family within 30 days of their arrival since quarters vacated by family were not situated at his old official station as is required in section 2-5.2e of FPMR 101-7 when occupancy of temporary quarters does not commence within 30 days of employee's transfer. 2. Employee living in Florida at time of reinstatement in manpower shortage position in pittsburgh, whose family remained in Florida residence until it was sold almost two years after his transfer from pittsburgh to Washington, is not entitled to reimbursement of real estate expenses incident thereto since 5 U.S.C. 5724a and implementing regulations in sections 2-1.41 and 2-6.1 in FPMR 101-7, require as condition for reimbursement that sold residence be situated at employee's old "official station", as defined in section 2-1.41 to mean "residence or other quarters from which the employee regularly commutes to and from work." 3. Employee transferred from pittsburgh to Washington whose family resided in Florida until almost 2 years after his transfer to Washington, is entitled under 5 U.S.C. 5724 and implementing regulations in sections 2 -2.2 and 2-8.2d of FPMR 101-7 - in effect at time of transportation of his family and household goods to Washington to reimbursement on basis of allowable cost to government of such transportation form his old to his new official stations, including cost of family's travel to and from airport (sections 1-2.3c and 1 4.2c(1); payment of authorized per diem (section 2-2.2b) and temporary storage (section 2-8.5b(1)). This is in response to a request for reconsideration of the action taken by our transportation and claims division settlement of May 21, 1974, allowing $1 488.10 and disallowing $5, 390.63 on the voucher of clarence G. Menke representing transportation and relocation expenses incident to his transfer on November 14, 1971, from pittsburgh, Pennsylvania to Washington, D.C. The record indicates that Mr. Menke was reinstated on July 1, 1970, s favor in this amount in DUE course.
In a manpower shortage category position with the bureau of mines at bruceton, Pennsylvania - in the vicinity of pittsburgh - and that he was on temporary detail in Washington prior to his transfer thereto in November 1971. His family remained in cocoa beach, Florida, which was the employee's residence at the time of his reinstatement, until October 1, 1973, when they traveled to Washington by commercial air carrier. Their residence was sold on September 24, 1973, and their household goods (8, 240 poinds) were shipped to an apartment in gaithersburg, Maryland, on September 27, 1973, with the exception of about 2, 260 poinds that were placed in temporary shortage in alexandria, Virginia.
A copy of the employee's travel order dated October 14, 1971 shows in pertinent part as follows:
Item 10.
Item 11. "Per diem allowance: $20 - employee; $15 each - wife and 2 children, AGE 14 and 12; $10 - 1 child, AGE 9."
Item 25. "Temporary quarters allowance."
Item 26. "Miscellaneous expense $200; reimbursable cost of sale of house, $2, 820; reimbursable cost of purchasing new home, $2, 500."
Mr Menke urges that he is entitled to reimbursement of $6 878.73 as claimed since he entered into the official move for the convenience of the government and in good faith that expenses as designated in his travel order would be reimbursed. This amount claimed was incident to his transfer from pittsburgh to Washington, D.C.
In the circumstances of Mr. Menke's case and for the reasons stated below, reimbursement of real estate expenses incident to the sale of his residence and the payment of the temporary quarters subsistence allowance for the particular period claimed, were not legally authorized even though his travel orders May have erroneously purported to do so.
As indicated in Mr. Menke's travel authorization by the reference to public law 89-516, 5 U.S.C. 5724a, a travel authorization cannot confer any entitlements or legal rights except as authorized and under the conditions imposed by applicable Law. Even though Mr. Menke might have been misinformed as to his entitlements with regard to his change-of duty station, it is well settled that, when a government employee acts outside the scope of the authority actually held by him, the united states is not estopped to deny his unauthorized or misleading representations commitments, or acts, because those who deal with a government agent, officer, or employee are deemed to have notice of the limitations on his authority, and also because even though a private individual might be estopped, the public should not suffer for the act or representation of a single government agent. Utal power & light Co. v. United states, 243 U.S. 389 (1917); bianco v. United states, 171 Ct.Cl. 719 (1965); bornstein v. United states, 170 Ct.Cl. 576, 345 F.2d 558 (1965); potter v. United states, 167 Ct.Cl. 28 (1964), cert denied, 382 U.S. 817 (1965); vogt Bros. Mfg. Co. v. United states, 160 Ct.Cl. 687 (1963); byrne organization, Inc. v. United states, 152 Ct.Cl. 578, 287 F.2d 282 (1961); national electronics lab., Inc. v. United states, 148 Ct.Cl. 308 (1960). The government is not estopped from repudiating advice given by one of its officials if that advice is erroneous. Von kalinowski v. United states, 151 Ct.Cl. 172 (1960), CERT. Denied, 368 U.S. 829 (1971). Where a government official approves and promises reimbursement beyond that allowed by applicable law, any payments made under such unauthorized actions are recoverable by the government. W. Penn horological Inst. United states, 146 Ct.Cl. 540 (1959).
Mr. Menke's entitlements are governed by the law applicable to transferred employees as set forth in 5 U.S.C. 5701-5707 and 5724 5724a, and in implementing regulations in effect at the time of his transfer to Washington, as published in office of management and budget (OMB) circular no. A-56, revised August 17, 1971, and in federal property management regulations (FPMR) 101-7, effective May 1, 1973.
The following items totaling $5, 390.63 in Mr. Menke's voucher were either disallowed in full or reduced in our settlement:
Real estate expenses incident to sale
Of residence. Disallowed in full:
$3, 684.60
Subsistence expense while occupying
Temporary quarters. Disallowed in full:
1, 302.00
Transportation of household effects.
Reduced on basis of commuted rate from
Pittsburgh to Washington. Amount disallowed:
379.47
Travel allowance of per diem of family. Reduced on basis of travel time
Pittsburgh to Washington, D.C.
Amount disallowed:
24.56
Total disallowed:
$5, 390.63
In addition, under the settlement action, the amount of $144.04 claimed for miscellaneous expenses were increased to $200 - the maximum allowable to a transferred employee with a family without necessity for documentation - as authorized in section 2-3.3a(2) of FPMR 101-7.
The disallowance of the employee's claim for reimbursement of real estate expenses incurred in the sale of the Florida residence was in...
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