In the Matter of BENJAMIN A. KNOTT

June 30, 2015

CBCA 4579-RELO

In the Matter of BENJAMIN A. KNOTT

Benjamin A. Knott, Arlington, VA, Claimant.

Rickey N. Lawrence, Chief, Financial Management, Department of the Air Force,

Arlington, VA, appearing for the Department of the Air Force.

LESTER, Board Judge.

This is our second decision relating to Dr. Benjamin A. Knott’s challenge to the

Department of the Air Force’s determination limiting his reimbursement for temporary

quarters subsistence expense (TQSE), which he was authorized to incur on an “actual

expense” (AE) basis. In Benjaman A. Knott, CBCA 4579-RELO, 15-1 BCA ¶ 35,961,

decided April 22, 2015, we determined that, “[a]lthough Dr. Knott is entitled to TQSE(AE)

for the forty-two days that he is seeking, he cannot recover the full lodging and meal costs

that he incurred.” Id. at 175,713. Nevertheless, we were unable to understand the basis of

the Air Force’s calculations of the amount allegedly owed Dr. Knott, finding that the

calculations “ma[d]e no sense based upon the existing record.” Id. at 175,715. Accordingly,

we requested further information from the parties to establish the proper calculation of the

amount owed. The Air Force did not provide any written response, even though we gave it

two opportunities to do so. This decision follows.

Background

As we explained in our prior decision, Dr. Knott was authorized sixty days of

TQSE(AE) as part of a permanent change of station (PCS) from Wright-Patterson Air Force

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Base, Ohio, to Arlington, Virginia. Based upon his understanding that he was entitled to

reimbursement of lodging and meal expenses up to the daily temporary duty (TDY) per diem

rate for the Washington, D.C., area, Dr. Knott incurred (and submitted a request seeking

reimbursement of) hotel lodging costs of $253.12 per night, plus varying meal expenses,

from May 11 through June 21, 2014. The Air Force denied a large portion of that request,

granting Dr. Knott TQSE(AE) totaling only $129 per day for twenty-one of the thirty days

from May 11 through June 9, 2014 (giving him nothing for the other nine days within that

period), and $96.75 per day from June 10 through 21, 2014.

In our prior decision, we explained that “‘[t]he ‘applicable per diem rate’ for

temporary quarters in the continental United States (CONUS) is the standard CONUS rate,’

rather than the per diem for a particular locality.” Knott, 15-1 BCA at 175,714 (quoting

Jerry L. Sorensen, CBCA 3828-RELO, 14-1 BCA ¶ 35,790, at 175,055 (quoting 41 CFR

301-6.102 (2013))). We determined that “[t]he standard CONUS rate, as set forth in the Joint

Travel Regulations (JTR) in effect at the time of Dr. Knott’s transfer, was $83 for lodging

and $46 for meals and incidental expenses, which, added together, total $129.” Id. (citing

JTR C5360-A.1). Accordingly, we held that, “for the first thirty days of his TQSE, Dr. Knott

would be entitled to reimbursement of no more than $129 per day.” Id. We then recognized

that “‘[t]he rates change after 30 days in temporary quarters,’ limiting the employee to

reimbursement of ‘.75 times the applicable per diem rate’ for the remaining period.” Id.

(quoting 41 CFR 302-6.100). “Seventy-five percent of the applicable standard CONUS rate

is $96.75,” we found, “which is the maximum daily amount that Dr. Knott could receive after

the first thirty days of his TQSE.” Id.

Applying the standard CONUS rate to his TQSE claim, we then found that “Dr. Knott

would be entitled to a total of $129 per day for the first thirty days of his TQSE entitlement

and $96.75 per day for the remainder of his TQSE.” Knott, 15-1 BCA at 175,714.

Nevertheless, the Air Force only reimbursed Dr. Knott $129 for twenty-one of the first thirty

days of his TQSE and $96.75 for the last twelve days, giving him nothing for nine of the days

during which he incurred TQSE. The agency provided no explanation in its submission for

this reduction, but the record contained a vague reference to a deduction for a six-day

househunting trip (HHT)1 that Dr. Knott may have taken. While we ultimately had to “deny

Dr. Knott’s request to recover TQSE at a rate above the standard CONUS rate,” we ordered

the Air Force to supplement its submission to the Board, no later than May 8, 2015, to detail

“the basis upon which it calculated the amount of TQSE payment due Dr. Knott and to

1

“A househunting trip is ‘a trip made by the employee and/or spouse to [the

employee’s] new official station locality to find permanent living quarters to rent or

purchase.’” Knott, 15-1 BCA at 175,715 n.1 (quoting 41 CFR 302-5.1).

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provide us with copies of supporting documents,” including a copy of any “orders under

which Dr. Knott took HHT.” Knott, 15-1 BCA at 175,175.

The Air Force did not respond to the Board’s order by the due date. After confirming

that the Air Force representative had actually received the Board’s order and was aware of

the requirement that it supplement its submission, the Board asked the Air Force to explain

why it had not responded and provided it with another opportunity to submit the requested

information, albeit out-of-time. Once again, the Air Force provided no written response.

Despite the Air Force’s failure to respond, Dr. Knott made his own submission to the

Board, acknowledging that he had, in fact, taken a six-day HHT from April 22 to 27, 2014

(prior to his PCS to Arlington, Virginia). He provided the Board with the orders and HHT

reimbursement authorization that the Air Force failed to submit.

Discussion

“[I]n travel and relocation expenses cases, ‘[t]he burden is on the claimant to establish

. . . [not only] the liability of the agency, and the claimant’s right to payment,’” Christopher

R. Chin-Young, CBCA 3734-RELO, 14-1 BCA ¶ 35,688, at 174,684 (quoting 48 CFR

6104.401(c) (2013)), but also the correctness of the amount sought. Robert H. Laghaie,

GSBCA 15498-RELO, 01-1 BCA ¶ 31,411, at 155,142. Nevertheless, if the claimant

establishes a prima facie case of entitlement to reimbursement of a specific dollar amount,

the burden of production shifts to the Government to explain, and potentially to support with

appropriate evidence, the reasons that the claimant’s prima facie case does not support the

award sought. See Thompson v. Haynes, 305 F.3d 1369, 1376 (Fed. Cir. 2002) (explaining

how “the burden of going forward with the evidence – the burden of production – . . . can

shift back and forth,” even though the ultimate burdens of proof and of persuasion always

remain with the party seeking relief). If the Government fails timely to “point out specific

shortcomings” in the claimant’s evidence, the tribunal “is entitled to treat the issue as

waived.” Southern Nuclear Operating Co. v. United States, 637 F.3d 1297, 1304 (Fed. Cir.

2011).

Here, Dr. Knott has clearly established that he used forty-two of the sixty days of

TQSE that the Air Force had authorized. Despite the Air Force’s complete failure to

participate in these proceedings, he has also – commendably – acknowledged that he took

six days of HHT. As we explained in our prior decision in this case, “[t]he JTR in effect at

the time of Dr. Knott’s transfer provides that, ‘[i]f an employee is paid/reimbursed for HHT

days and authorized TQSE(AE) is subsequently claimed for more than 30 days, the actual

number of HHT days (NTE [not to exceed] 10) paid/reimbursed . . . are deducted from the

first authorized TQSE(AE) period.’” Knott, 15-1 BCA at 175,715 (quoting JTR C5634-A).

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Dr. Knott was authorized to take up to sixty days of TQSE(AE). Accordingly, because he

“was paid for [six] days of HHT,” he can “be reimbursed for up to [fifty-four] days of TQSE,

in addition to the HHT payment.” Id. (quoting Robert D. Tracy, CBCA 3689-RELO, 14-1

BCA ¶ 35,636, at 174,500). Because he only used forty-two of his fifty-four authorized days

of TQSE(AE), he is entitled to reimbursement for all of those forty-two days. See James T.

Rubeor, CBCA 4084-RELO, 15-1 BCA ¶ 35,905, at 175,514 (“Where the agency has

approved a sixty-day period for reimbursable TQSE, the period of HHT reimbursement is

subtracted from the sixty days to determine the period that TQSE will be reimbursable.”).

“Nevertheless, the HHT is ‘deducted from the first authorized TQSE period.’” Knott,

15-1 BCA at 175,715 (quoting JTR C5634-A). Accordingly, Dr. Knott’s six-day HHT

counts against “the first thirty days of [his] authorized TQSE period,” a period during which

he was entitled to receive the daily $129 standard CONUS rate. Id. Therefore, Dr. Knott is

entitled to receive payment of twenty-four days of TQSE at the daily $129 standard CONUS

rate (totaling $3096). For the remaining eighteen days of his forty-two days of TQSE(AE),

he is entitled to recover “the daily amount of $96.75, or .75 times the standard CONUS rate”

(totaling $1741.50). Id.; see 41 CFR 302-6.100 (the employee is limited to “.75 times the

applicable per diem rate” for any period “after 30 days in temporary quarters”). Combining

these amounts, Dr. Knott is entitled to TQSE(AE) reimbursement totaling $4837.50.

This figure is far less than the more than $12,000 that Dr. Knott paid for lodging and

meals during his time in temporary quarters. Dr. Knott indicates that he did not have

information about the JTR maximum allowable reimbursement limits before submitting his

vouchers and that, “when [he] asked for guidance from [his] organization, [he] was told that

[he] was allowed the normal TDY Per Diem rate for lodging.” As we said in our recent

decision in James A. Kester, CBCA 4411-RELO, 15-1 BCA ¶ 35,966, “we express dismay

at actions taken by agencies” that mislead “employees into believing they will receive

benefits which, under law, they may not receive,” and “[w]e strongly encourage agencies to

ensure that their travel and transportation officials provide accurate advice to these

individuals as to the proper scope of their . . . relocation benefits.” Id. at 175,729.

Unfortunately, we lack authority to authorize payment of any amount higher than the relevant

regulations permit, even when an employee has acted reasonably in following the advice of

other seemingly knowledgeable agency employees:

Allowing an agency to make a payment for a purpose not authorized by statute

or regulation would violate the Appropriations Clause of the Constitution.

U.S. Const. art. I, § 9, cl. 7 (“No money shall be drawn from the Treasury, but

in consequence of Appropriations made by Law.”). The Supreme Court

consequently has made clear that an executive branch employee’s promise that

the Government will make an “extrastatutory” payment is not binding. Where

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relevant statute and regulations do not provide for payment for a particular

purpose, an agency may not make such payment.

Id. at 175,729-30 (quoting Julie N. Lindke, CBCA 1500-RELO, 09-2 BCA ¶ 34,141, at

168,784); see Office of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990)

(Government is not estopped by erroneous advice of officials that conflicts with statute).

We also cannot condone the agency’s complete disregard of the Board’s request for

information about Dr. Knott’s TQSE. The record contains no rational explanation of the

agency’s decision to pay for only thirty-three of Dr. Knott’s forty-two TQSE(AE) days or the

manner in which it calculated the rates at which Dr. Knott is supposed to be paid. To the

extent that there is some reason that the Air Force declined to pay Dr. Knott for those nine

days, it did not tell us what it was. The Board requested an explanation and supporting

evidence, but, even though the Board confirmed the agency’s receipt of two separate orders

requesting supplemental information, the agency never provided a written response and never

attempted to justify its calculations. To the extent that the Air Force had a basis for further

reducing Dr. Knott’s permissible recovery below the award that we are making, it has waived

its opportunity to do so. See Robert E. Sanders, CBCA 3737-RELO, 15-1 BCA ¶ 35,943,

at 175,671-72; see also Southern Nuclear, 637 F.3d at 1304. Even in the face of the agency’s

complete disregard of our orders and the resulting waiver, however, we remain powerless to

provide Dr. Knott with any greater recovery than that which the existing record shows is

authorized by the relevant regulations. Kester, 15-1 BCA at 175,729-30.

Decision

For the foregoing reasons, Dr. Knott is entitled to reimbursement of TQSE(AE) in the

total amount of $4837.50. To the extent that the Air Force has already reimbursed Dr. Knott

for some of his TQSE, that reimbursement amount should be deducted from Dr. Knott’s

additional payment.2

______________________________

HAROLD D. LESTER, JR.

Board Judge

2

To the extent that Dr. Knott, in his most recent submission, complains about the

agency’s reimbursement (or lack thereof) of his HHT expenses, those expenses are not a part

of the claim before us. Dr. Knott is free, however, to raise them in a new claim.