Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

 

                             ______________

 

                             July 20, 2001

                             ______________

 

 

                            GSBCA 15605-RELO

 

 

                     In the Matter of ROY KATAYAMA

 

 

        Roy Katayama, Washington, DC, Claimant.

 

        J. F. Drummond, Jr., Finance & Operations Law Office, Office

   of General Counsel, 

   Environmental Protection  Agency, Washington,  DC, appearing  for

   Environmental Protection Agency.

 

   DeGRAFF, Board Judge.

 

        In  July  1999, the  Environmental  Protection  Agency (EPA)

   interviewed Roy Katayama for a position  in its Washington, D.C.,

   office.  Mr. Katayama lived in California and was not employed by

   the  Federal Government.  The person who interviewed Mr. Katayama

   told him that  if he moved to Washington to work for the EPA, the

   agency  would reimburse  his subsistence  expenses  for ten  days

   while  he occupied  temporary quarters.    Subsequently, the  EPA

   selected Mr.  Katayama for the position in  its Washington office

   and  in August  2000, provided  him with a  travel authorization.

   The  first page  of the  authorization  showed that  Mr. Katayama

   would travel to  Washington from August  30 through September  8,

   and  that  he  would  be  reimbursed  for  lodging,   meals,  and

   incidental expenses while  en route.  On  the second page  of the

   authorization,  the  box  next to  "Temporary  Quarters"  was not

   checked and no dollar amount was shown for that item.  

 

        Mr.  Katayama stayed in temporary quarters in Washington for

   twelve  days  and  incurred approximately  $2200  in  subsistence

   expenses during  that time.   Although  less expensive  temporary

   quarters were available to him, Mr. Katayama did not pursue those

   quarters because  he believed that  the EPA  would reimburse  his

   expenses, as he had been told during his interview.   Statute and

   regulation,  however,  do  not allow  agencies  to  reimburse new

   appointees  for their temporary quarters subsistence expenses.  5

   U.S.C.   5723 (Supp. V  1999); 41 CFR 302-1.10(f) (1999); Barbara

   A. Caviness,  GSBCA 15390-RELO  (June  11, 2001).   Mr.  Katayama

   submitted a  claim for  reimbursement of  his temporary  quarters

   subsistence expenses and the EPA disallowed the claim.  

 

 

        The EPA  asks  us to  recommend  that the  General  Services

   Administration's  Deputy   Associate  Administrator,   Office  of

   Transportation and  Personal Property (MT),  grant administrative

   relief to Mr. Katayama.  In a test program initiated on April 28,

   2000,  the Administrator of General Services authorized the Board

   to refer claims to MT  if administrative relief should be granted

   for  legal  or  equitable  considerations,  but  such  relief  is

   prohibited  by statutory or regulatory restrictions.  Such claims

   are commonly referred to as "meritorious claims."  The purpose of

   the test program is to allow MT to achieve the same results as it

   would if the Meritorious Claims Act,  31 U.S.C.   3702(d) (1994 &

   Supp. V 1999), were utilized, but in a more efficient manner.  In

   the EPA's  view, although there is no  legal basis for paying Mr.

   Katayama's claim, reimbursing  him would be  equitable.  The  EPA

   explains that  as a  new federal employee,  Mr. Katayama  was not

   familiar  with the rules  regarding reimbursement, and  he relied

   upon  the  statement made  during his  interview that  the agency

   would reimburse his temporary quarters subsistence expenses. 

 

        We  will not  apply a hard  and fast rule  when we determine

   whether equitable  considerations compel  us to  conclude that  a

   claim  is  meritorious.    In  reaching  our decisions,  we  will

   consider  and  balance  several  factors.    At  the  outset,  we

   recognize  that   deeming  a   claim   "meritorious"  is   highly

   extraordinary,  since  Government   employees  are  charged  with

   knowledge of all applicable laws and regulations and are expected

   to comply  with them.   We  will look  to see  whether the  claim

   presents  equitable considerations of an unusual nature which are

   unlikely to  constitute a  recurring problem.   We will  consider

   whether  an agency  directed  an employee  to  incur the  claimed

   expenses.   We  will also  consider whether  an agency's  actions

   caused an employee to  incur the claimed expenses.   We may  also

   consider  other   factors,  as  warranted  by  the  circumstances

   presented by individual claims.  

 

        We conclude that it is  not appropriate to recommend that MT

   grant administrative  relief to  Mr. Katayama.   Many travel  and

   relocation claims  are founded  upon  allegations that  employees

   received erroneous advice  from their agencies.  The  EPA did not

   direct Mr. Katayama to occupy temporary quarters and to incur the

   resulting expenses.  There is nothing in our record to show  that

   the   interviewer's   statement  regarding   temporary   quarters

   subsistence expenses caused  Mr. Katayama to accept  the position

   in Washington and  to incur the claimed expenses.   The amount at

   issue is large, but it  would have been less if Mr. Katayama  had

   pursued available, less  expensive quarters.  In short,  there is

   nothing that makes Mr. Katayama's claim extraordinary. 

 

        Although it is  unfortunate that the person  who interviewed

   Mr.   Katayama   provided   him   with   erroneous   advice,  the

   circumstances presented here  are not so compelling  as to prompt

   us to refer the claim to MT for relief.

   ___________________________________

 

                                      MARTHA H. DeGRAFF

                                      Board Judge