BNUMBER: B-261483; B-265864.2
DATE: August 29, 1996
TITLE: Drs. Michael H. Mattei and Loren T. Wilkenfeld Waiver
Requests
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Matter of:Drs. Michael H. Mattei and Loren T. Wilkenfeld Waiver
Requests
File: B-261483; B-265864.2
Date:August 29, 1996
DIGEST
Two new employees moving from their homes in California to their first
duty station in North Carolina were advised by an agency official
responsible for arranging their household goods shipments that they
could have their automobiles shipped via government bill of lading
with their household goods to their duty station, but they would be
required to reimburse the agency for the costs of shipping the
automobiles. The official incorrectly advised them, however, that
their costs would be a $113.50 bulky article charge, when in fact in
addition to such charge, the carriers also charged rates applied to
the weight of the automobiles, resulting in much greater total
charges. The employees' requests for waiver of their resulting debts
to the agency may be granted to the extent that in reliance on the
erroneous advice, they incurred expenses for transporting the
automobiles greater than they otherwise would have incurred. Dr.
Loren T. Wilkenfeld, B-265864, Dec. 7, 1995, overruled in part.
DECISION
Dr. Michael H. Mattei requests reconsideration of our Claims Group's
settlement Z-2942034-025, March 23, 1995, denying his request for
waiver of his debt of $2,969.26 to the Department of Veterans Affairs
(VA) for excess costs incurred by the VA for the shipment of his two
automobiles to his first duty station. Dr. Loren T. Wilkenfeld
requests reconsideration of our decision B-265864, December 7, 1995,
in which we affirmed the Claims Group's denial of her request for
waiver of her debt of $1,794.99 to the VA which arose under the same
circumstances as Dr. Mattei's. Upon further consideration, we now
believe partial waiver of these debts is appropriate.
Background
In the summer of 1993, Dr. Mattei and Dr. Wilkenfeld, newly appointed
VA employees, were issued travel orders authorizing them and their
families to travel to their initial duty station, the VA Medical
Center in Salisbury, North Carolina. Their travel orders also
authorized the shipment of their household goods on government bills
of lading (GBLs) from their homes in California to Salisbury. Both
employees elected to travel by commercial airline to North Carolina.
Each owned two automobiles which they requested be shipped with their
household goods. VA authorized shipment of the automobiles with the
household goods, subject to the employees reimbursing VA for the cost
of shipping the automobiles since employees' automobiles are
specifically excluded by the Federal Travel Regulations (FTR) from
items which may be shipped as household goods at government expense.
FTR sec. 302-1.4(j)(1)(i).[1] Upon completion of the shipments, the VA
paid the carriers for the total costs of the shipments and sought to
recover from Dr. Mattei and Dr. Wilkenfeld the excess costs paid for
the shipment of their vehicles.
Both employees contended that the costs assessed them were much
greater than the agency had led them to believe when they requested
shipment of their vehicles, and they requested waiver of their
resulting debts. The employees stated that the VA purchasing official
who made the arrangements with the carriers and issued the GBLs told
them at the time they requested shipment of the vehicles that they
would be required to reimburse VA for a $113.50 bulky article charge
applicable to each vehicle and no mention was made of any additional
charges. They also point out that they were new employees not
familiar with government procedures and they were not given complete
counseling on their shipping entitlements prior to their moves. Thus,
they believe they rightfully relied on the advice of the purchasing
official, who was in charge of arranging the shipments, as to the
costs of shipping their vehicles. Both employees indicate that they
had other options available to move their vehicles to North Carolina
which they would have pursued, such as by driving one and personally
arranging for shipment of the other, had they known the true costs of
shipping them by moving van. In this regard, Dr. Mattei states that
he could have had one of his automobiles shipped by rail to North
Carolina for about $600.
The agency report on the waiver requests includes a VA accounting
supervisor's statement that she advised both employees well in advance
of shipment that the government would not pay the cost of shipping
their automobiles. The VA purchasing official who made the
arrangements for the employees' household goods shipments and issued
the GBLs also states that he told the employees that they would be
responsible for reimbursing VA for the cost of shipping the
automobiles, and he entered a statement to that effect on the GBLs.
However, he also acknowledges that he advised the employees only of
the bulky article charge and not of any other charges because the
bulky article charge was the only charge he was aware of that would
apply to the automobiles.
In considering the employees' waiver requests, the agency initially
denied the requests, but upon reconsideration after review by an
agency traffic management official, the agency recommended that the
debts be waived, stating that the Salisbury office had acknowledged
that they failed to provide guidance and counseling regarding the
moves. Since the amounts of the debts exceed the $1,500 limit on the
VA's waiver authority,[2] the requests for waiver were forwarded to
our Claims Group for consideration.
The Claims Group denied the waivers on the basis that our waiver
authority applies only to debts which arise out of erroneous payments
by the government, and the record showed no erroneous travel orders or
other erroneous authorization to ship the vehicles at government
expense. The Claims Group noted also that the record indicated that
both employees had been advised prior to shipment that they would be
responsible for the costs of shipping their automobiles. Dr.
Wilkenfeld appealed the Claims Group's denial, and we affirmed the
Claims Group's action by our decision of December 7, 1995, supra, for
essentially the same reasons asserted by the Claims Group.
Analysis and Conclusions
Pursuant to 5 U.S.C. sec. 5584, we may waive, in whole or in part, a
claim against an employee "arising out of an erroneous payment" of
transportation or relocation expenses, the collection of which would
be against equity and good conscience and not in the best interests of
the United States, provided there is no indication of fraud,
misrepresentation, fault, or lack of good faith on the part of the
employee. Generally, an employee's debt for the excess costs an
agency has incurred in connection with shipment of the employee's
household goods is not subject to this waiver authority because the
agency has made no erroneous payment; it has merely made a payment in
the normal course of business to satisfy its obligation to the
carrier, and then is simply recouping from the employee amounts
related to excess weight or items for which the government is not
authorized to bear the cost of shipment. See 67 Comp. Gen. 484,
486-487 (1988); and B-252103, June 17, 1993.
We have recognized, however, that in some limited circumstances where
the excess charges resulted from an erroneous authorization by the
agency, the resulting claim may be considered to have arisen out of an
erroneous payment and thus to fall within our waiver authority. See
67 Comp. Gen. 486-487, supra. See also, Gunnery Sergeant Robert S.
Jackowski, B-229335, Oct. 21, 1988.[3] While ordinarily we would
expect such an erroneous authorization to be in the travel orders or
similar written form, we have recognized that oral advice may rise to
the level of an erroneous authorization in some cases. For it to do
so however, it must be shown clearly that such oral advice was given
by an agency official with the responsibility for providing such
advice and that the advice purported to provide the authorization on
which the employee relied. B-252103, June 17, 1993, supra.
In another case also involving a newly appointed employee moving from
his home to his first duty station, we found that oral advice provided
to the employee that he could ship his automobile at government
expense with his household goods as long as the total weight of the
shipment did not exceed his weight allowance, amounted to an erroneous
authorization and provided a basis to consider the employee's debt for
waiver. Kenneth T. Sands, B-229102, Dec. 5, 1988. In that case, the
employee was moving under the commuted rate system whereby he was
required to make the shipping arrangements himself with subsequent
reimbursement to him by the agency. There we took note of the fact
that the FTR places special responsibility on agencies to provide full
information to newly hired employees regarding their transportation
benefits.[4] When this employee had to seek clarifying information as
to his entitlements, it necessarily was to the agency personnel
specialist handling his hiring that he turned, and when the personnel
specialist provided erroneous advice on which the employee relied, we
considered his resulting debt to fall within our waiver authority.
See also, John W. Meeker, B-239663.3, Oct. 11, 1991, involving a
similar situation, and Paul Rodriguez, 67 Comp. Gen. 589 (1988), where
the employee was given erroneous information concerning the extra cost
of additional insurance on his household goods shipment. In these
three cases we granted waiver of the debts to the extent that the
employees incurred excess expenses in reliance on the erroneous
information.
The situations of Dr. Mattei and Dr. Wilkenfeld are somewhat similar
to the three preceding cases, particularly the Sands case. Both of
these employees were new appointees to whom the agency had a special
responsibility to provide full information regarding their travel and
transportation benefits in reporting to their new duty station.
Although they appear to have been correctly advised that they would be
required to reimburse the agency for the extra cost of shipping their
automobiles with their household goods, they were given incorrect or
incomplete advice as to the cost that would be involved, a critical
factor in making their decisions to have the vehicles shipped with
their household goods. In these circumstances, we now think that
their debts fall within the purview of the waiver statute on the same
basis as the debts in the Sands, Meeker, and Rodriguez cases discussed
above. We find that the employees reasonably relied on the VA
purchasing official's erroneous advice to their detriment, and there
is no indication of fraud, misrepresentation, fault, or lack of good
faith on their parts. Accordingly, Dr. Mattei's and Dr. Wilkenfeld's
debts qualify for waiver, to the exent that they incurred extra
expenses based on their detrimental reliance on the erroneous advice.
In determining the amounts of the debts to be waived, we think it
appropriate to take into consideration the fact that they received the
benefit of having their automobiles transported to the new duty
station. As they noted, they could have accomplished this by driving
one vehicle across country, for which presumably the agency would have
provided them a mileage allowance in lieu of paying their air fares,
and shipping the other vehicle by some less expensive method at their
own expense. Therefore, we think it appropriate for the VA to
determine what the reasonable cost would have been to have one of each
employee's vehicles transported by an alternative method to the new
station, and those amounts should be collected from them.[5] The
balances of their debts (the extra costs they incurred as a result of
their reliance on the erroneous advice) may then be waived.[6]
Our decision B-265864, December 7, 1995, in Dr. Wilkenfeld's case and
the Claims Group's denials of waiver in both cases are modified
accordingly. The VA should take action in accordance with the above.
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. See also 5 U.S.C. sec. 5727(a), which provides that except as
specifically authorized by statute, an authorization in a statute or
regulation to transport the effects of an employee or other individual
at government expense is not an authorization to transport an
automobile.
2. 5 U.S.C. sec. 5584(a)(2).
3. Applying the similar waiver authority under 10 U.S.C. sec. 2774,
applicable to members of the uniformed services.
4. The current pertinent FTR provision is sec. 302-1.10(b), which
provides that because new employees usually lack experience in
government procedures, "each agency shall adopt special measures to
provide full information to new appointees concerning the benefits
which may be available to them for travel and transportation involved
in reporting to their new duty stations. Special care shall be taken
to inform appointees of the limitations on available benefits."
5. For example, Dr. Mattei states that he could have had one
automobile shipped by rail at a cost of $600. If the agency
determines that to be a reasonable charge for this service, which he
would have incurred but for the erroneous advice, the $600 should be
collected from him and the remaining $2,369.26 of his debt would be
appropriate for waiver. The agency may wish to consult the General
Services Administration if it needs assistance in determining the
reasonable cost of such a shipment. See 41 C.F.R. Subpart 101-40.1.
6. A debt thus determined that is $1,500 or less may by waived by the
VA. If a debt exceeds that amount, it should be returned here for
waiver. 5 U.S.C. sec. 5584(a), and 4 C.F.R. sec. 92.2(c).