March
20, 2008
CBCA
1079-TRAV
In
the Matter of MARK J. LUMER
Mark
J. Lumer, Springfield, VA, Claimant.
John
St. Myers, Defense Finance and Accounting Service, Indianapolis, IN, appearing
for Department of Defense.
BORWICK, Board Judge.
This
matter involves the United States Department of the Army, agency, and its
employee Mr. Mark J. Lumer. The Defense
Finance and Accounting Service (DFAS) purported to submit on behalf of the
employee and the agency a claim to this Board challenging a DFAS decision
concerning recoupment of a temporary duty (TDY) lodging allowance the agency
had paid Mr. Lumer. Because the employee
has not submitted a claim to this Board under 31 U.S.C. ' 3702 and because the agency has not requested a
decision under 31 U.S.C. ' 3529, we dismiss this matter for lack of
jurisdiction.
Background
In
a three and one-quarter page detailed presentation to the Board, DFAS states
that it has determined that the agency overpaid Mr. Lumer $12,092 as a lodging
expense allowance while on frequent TDY in Huntsville, Alabama. According to DFAS, Mr. Lumer was reimbursed
for allegedly unallowable expenses of a condominium he had purchased at the TDY
site.
In
forwarding the matter to this Board, DFAS states that the employee maintains
that those costs have been reimbursed for ten years, that he claimed the costs
in good faith based on guidance he received from his command, and that the
amounts paid were substantially below what it would have cost the Government
had the employee stayed in a hotel while on TDY, thus saving the Government
money. DFAS states that Abecause of these factors, Mr. Lumer and his Command
request an appeal of the DFAS decision.@
In
a colorful rejoinder, Mr. Lumer denies he has submitted a claim to this Board:
Since DFAS has
never asked me to repay any funds, there has never been [a claim] made by me. Furthermore, the Deputy Commander at the US
Army Space and Missile Defense Command . . . denied he has issued
such [a claim] and has stated to his best knowledge and belief that no one in
the Command has made such [a claim]. I
have not authorized anyone to make [a claim] on my behalf.
The Deputy
Commander of the agency=s Space and Missile Defense Command in an e-mail
message confirms Mr. Lumer=s statements regarding the Space and Missile Defense
Command not submitting a claim.
Discussion
Statute
provides:
(a) Except as
provided in this chapter or another law, all claims of or against the United
States Government shall be settled as follows:
. . . .
(3) The Administrator
of General Services shall settle claims involving expenses incurred by Federal
civilian employees for official travel and transportation, and for relocation
expenses incident to transfers of official duty station.
. . .
.
(b)(1) A claim
against the Government presented under this section must contain the signature
and address of the claimant or an authorized representative.
31 U.S.C. ' 3702 (2000).
Statute
also provides:
(a) A disbursing or
certifying official or the head of an agency may request a decision from the
Comptroller General on a question involving‑‑
(1) a payment the
disbursing official or head of the agency will make; or
(2) a voucher
presented to a certifying official for certification.
(b)(1) Except as
provided in paragraph (2), the Comptroller General shall issue a decision
requested under this section.
(2) A decision
requested under this section concerning a function transferred to or vested in
the Director of the Office of Management and Budget under section 211(a) of the
Legislative Branch Appropriations Act, 1996 (109 Stat. 535), as in effect
immediately before the effective date of title II of the General Accounting
Office Act of 1996, or under this Act, shall be issued‑‑
(A) by the Director
of the Office of Management and Budget, except as provided in subparagraph (B);
or
(B) in the case of
a function delegated by the Director to another agency, by the head of the
agency to which the function was delegated.
31 U.S.C. ' 3529. The
Director of the Office of Management and Budget delegated his authority under
this section regarding federal employee and travel relocation matters to
the Administrator of General
Services.
In
short, statute, after re-delegation, provides the Administrator of General
Services the authority to: (1) settle claims submitted by employees or their
authorized representatives concerning expenses incurred by federal civilian
employees for official travel and (2) to render decisions (popularly known as Aadvance decisions@) on
payments the disbursing official or head of the agency will make or on a
voucher presented to a certifying official for certification.
The
Administrator delegated these functions to the General Services Board of
Contract Appeals. Delegation from Acting
Administrator of General Services (July 17, 1996). Those functions have been redelegated to the
Civilian Board of Contract Appeals after the enactment of the National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, ' 847, 119 Stat. 3136.
The
Board has established procedural rules governing travel claims. The Board=s rules
require that a written claim must be filed by the claimant; the claimant=s authorized representative; or the agency, at
claimant=s request, on behalf of the claimant. Rule 402 (a)(1), (2) (72 Fed. Reg. 36,794,
36,818 (July 5, 2007)).
In this matter, Mr. Lumer did not file a claim, nor did he request the
agency to submit a claim on his behalf.
The
Board=s rules implement 31 U.S.C. ' 3529. If, upon
receipt of the documents from claimant, the agency is uncertain about the
suitability of the claim for payment, it may then request an advance decision
from the Board. The agency is required
to: (1) explain in writing why the certifying official, disbursing official, or
agency head is seeking an advance decision, rather than taking action on his or
her own initiative; (2) state the question(s) presented and include citations
to applicable statutes, regulations and cases; and (3) include any other
information the official believes the Board should consider. Rule 502(a)(2).
Here
DFAS presented a submission of three and one-quarter single-spaced pages
explaining in detail why it concluded Mr. Lumer owed the Government
$12,092. DFAS was not in that submission
asking for an opinion on a matter about which a certifying official possessed
doubt.
Since
neither the employee, nor the agency acting at the employee=s request, submitted a claim to the Board pursuant to
31 U.S.C. ' 3702, and since the agency has not requested an
advance decision under 31 U.S.C. ' 3529,
this matter must be dismissed for lack of jurisdiction. Alexander J. Qatsha, GSBCA 15494-RELO,
01-1 BCA & 31,364.
Decision
This
matter is dismissed.
__________________________
ANTHONY
S. BORWICK
Board
Judge
We substituted the proper term Aclaim@ in brackets where the employee has used the improper
term Aappeal.@
