The main issue before us is whether the Arbitrator’s monetary remedies, including an alleged award of attorney fees, are contrary to law. Because the amount of the awarded expenses relating to the transfer exceeds the maximum amount allowed by law, and there is no authority for the Arbitrator’s award of “actual expenses,”^[2] the monetary remedies are contrary to law and must be set aside. And as an award of attorney fees requires an underlying award of monetary remedies, any award of attorney fees is unauthorized. Thus, it is not necessary to resolve the parties’ dispute over whether the Arbitrator actually awarded attorney fees because, even assuming that he did, that award also must be set aside. 

 

The grievant is a Border Patrol agent who was assigned to the Border Patrol station in Nogales, Arizona. The Agency selected him for a transfer to a station in Montana. As part of his transfer, the grievant signed a relocation agreement under which the Agency agreed to reimburse him for certain expenses that regulations refer to as “temporary quarters subsistence expenses” (subsistence expenses).^[3] These are expenses that an employee and/or the employee’s immediate family incurs while occupying temporary housing. The amount of the reimbursement as set forth in the relocation agreement was $8,175.00. After the grievant submitted a voucher to the Agency for payment in that amount, the Agency told him that it was reimbursing him only half that amount – $4,087.50 – because that was the maximum amount allowed under law. The Agency explained that the per diem amount used to calculate the reimbursement amount in the relocation agreement had been erroneously doubled from the maximum permitted. 

 

 

 

With regard to the subsistence expenses, the Arbitrator rejected the Agency’s reliance on a decision of the General Services Administration Board of Contract Appeals (the Contract Board), which held that “neither erroneous advice from a government employee nor erroneous travel orders can create a right to reimbursement in excess of statutory and regulatory entitlements.”^[4] The Arbitrator found that the Agency’s reliance was misplaced because the case before him “involve[d] a contract which was reviewed and signed by both an ‘Authorizing Official’ and an ‘Asst. Chief.’”^[5] And although the Arbitrator, citing OPM v. Richmond,^[6] agreed with the Agency that it could not honor commitments made by officials who were not authorized to make them, the Arbitrator determined that the Agency officials who entered into the relocation agreement were authorized to do so. Accordingly, the Arbitrator found that the relocation agreement was an enforceable contract between the grievant and the Agency, and that the Agency breached the contract by failing to pay the grievant the full amount in his voucher. The Arbitrator concluded that the grievant was entitled to receive the remaining unpaid amount, and directed the Agency to pay the grievant that amount.

 

On the issue of the home-sale program, the Arbitrator determined that the Agency’s “refus[al] to process” the grievant’s application “for seventy-two days constituted an unjustified or unwarranted personnel action.”^[7] Citing Naekel v. Department of Transportation, FAA,^[8] the Arbitrator determined that the appropriate remedy for a “contract violation of this sort is to put the [grievant] in the position he would have occupied but-for the contract violation.”^[9] As such, the Arbitrator determined that the grievant was “entitled to . . . [h]is actual expenses including mortgage, utilities, and lawn maintenance for the seventy-two days that the [Agency] did not process his [home-sale program] paperwork.”^[10] Further, and in disagreement with the Agency, the Arbitrator found that this remedy was “within the scope of the Back Pay Act” (the Act).^[11] In this connection, the Arbitrator cited Naekel and stated that “[r]elocation costs . . . have been found to be within the definition of allowances in the [Act].”^[12] The Arbitrator found that the Union had shown that the Agency’s delay “resulted in the withdrawal or reduction of pay, allowances, or differentials, which the Office of Personnel Management [(OPM)] defines as ‘monetary employment benefits to which an employee is entitled by statute or regulation.’”^[13]

 

He further concluded that, under the Act, “the Union is entitled to reasonable attorney fees related to the personnel action.”^[14] Accordingly, he directed that, within forty-five days of the award, the Agency pay the grievant reasonable attorney fees.^[15] However, the Arbitrator also stated that the award was “provisional” for the limited purpose, among other things, of allowing the Union to “request reasonable attorney fees.”^[16]

 

 

The Union concedes that the majority of the arguments in the Agency’s exceptions were also made to the Arbitrator, but asserts, generally, that the Authority should not consider “any new arguments presented in the Agency’s exceptions” with regard to the issues of: “(1) the [r]elocation [a]greement . . . not [being] an enforceable contract; (2) the Arbitrator ordering the Agency to pay $4,087.50 as a result of the Agency’s breach of the [r]elocation [a]greement; and (3) the Arbitrator’s [a]ward of actual expenses.”^[17] But, before the Arbitrator, the Agency made arguments that: (1) the Agency’s relocation coordinator was not authorized to obligate the Agency to pay more money than permitted by the Federal Travel Regulation (FTR);^[18] (2) the grievant was not entitled to receive an additional $4,087.50;^[19] and (3) the Act did not authorize monetary remedies in connection with the home-sale program.^[20] So there is no basis for declining to consider “any” arguments regarding these issues.^[21]

 

In addition, the Union claims that two specific Agency arguments – that the home-sale program is discretionary and that the grievant is not entitled to its benefits – are not properly before the Authority because the Agency did not make them below.^[22] For the reasons discussed later in this decision, it is unnecessary to resolve whether these two arguments are properly before us.

 

 

The Agency contends that the Arbitrator’s award of $4,087.50, the amount of subsistence expenses under the relocation agreement that the Agency refused to reimburse the grievant for, is contrary to 5 U.S.C. § 5724a and the FTR.^[23] The Agency maintains that the maximum per diem rate prescribed by law in this case is $109.00 and that the maximum amount payable to the grievant under § 5724a(b)(1)(B)(ii), the pertinent wording of which is set forth below, is $4,087.50.^[24] The Union contends that the Arbitrator properly concluded that the relocation agreementwas an enforceable contract and that the grievant relied, to his financial detriment, on the relocation agreement’s statement of his entitlement.^[25] 

 

Section 5724a(b)(1) provides, in pertinent part: “[A]n agency may pay to . . . an employee who transfers in the interest of the Government between official stations located within the United States . . . (B) . . . (ii) an amount for subsistence expenses, that may not exceed a maximum amount determined by the Administrator of General Services” (the Administrator).^[26] In 41 C.F.R. § 302-6.201, the Administrator has specified the following calculation to determine the lump-sum payment for subsistence expenses:

 

At the time of the grievant’s relocation, § 301-11.6 stated, in pertinent part: “For per diem, see applicable FTR Per Diem Bulletins issued periodically by the Office of Governmentwide Policy, Office of Transportation and Personal Property, Travel Management Policy, and available on the Internet at http://www.gsa.gov/perdiem.”^[27] The Agency alleges, and there is no dispute, that the applicable maximum per diem rate was the “standard rate for the continental United States.”^[28] And at the time of the grievant’s relocation, the applicable FTR Per Diem Bulletin provided that the standard rate for the continental United States, or “Standard CONUS Rate,” was $70 for lodging and $39 for meals and incidentals, for a total of $109 per diem.^[29] Using that rate, and calculating the lump-sum payment of subsistence expenses under the formula set forth above, the maximum amount that the grievant could lawfully recover was $4,087.50 – the amount that the Agency paid the grievant. The Union contends that the lump-sum amount of $8,175.00 was not a “mistake,”^[30] but does not explain how $8,175.00 is accurate under the formula. Thus, the Union provides no basis for finding that the grievant had a statutory or regulatory entitlement to more than $4,087.50.

 

Although the Arbitrator found that the Agency entered into an enforceable contract providing more than $4,087.50, it is well established that the federal government may not make commitments that are contrary to law.^[31] Therefore, the Arbitrator erred in finding that the contract was enforceable.

 

Further, the Union’s claim that the grievant relied – to his detriment – on the contract does not support a contrary conclusion. For support, the Union cites Contract Board decisions that ordered agencies to pay employees travel allowances on which the employees relied, when the agencies had discretion to pay the authorized amounts.^[32] But these decisions do not apply in cases where, as here, the claim for reimbursement exceeds statutory and regulatory entitlements.^[33] Thus, the Union’s reliance on them is misplaced.

Finally, the Union asserts that the award is supported by the Contract Board’s decision, Lori Giannantonio (Giannantonio),^[34]and by 41 C.F.R. § 302‑6.203, which allows employees to “retain any balance left over from [their] . . . lump[-]sum payment [of subsistence expenses] if such payment is more than adequate.”^[35] But Giannantonio and § 302-6.203 both pertain to instances where a lump-sum payment has been calculated correctly.  Here, the lump-sum amount was not calculated correctly. Therefore, the Union’s reliance on Giannantonio and § 302-6.203 is also misplaced.

 

The Agency also contends that the Arbitrator’s award of subsistence expenses is based on a nonfact.^[36] But as that award is deficient as contrary to law, it is unnecessary to resolve the nonfact exception. Accordingly, we do not address it further. 

 

 

The Agency asserts that the Act does not authorize the “actual expenses” awarded by the Arbitrator in connection with the home-sale program, because the “actual expenses” are not pay, allowances, or differentials under the Act.^[37] The Union disputes this and argues that the Act allows the award of “actual expenses.”^[38]

 

Under the Act, an award of backpay is authorized only when: (1) an unjustified or unwarranted personnel action; (2) resulted in the withdrawal or reduction of pay, allowances, or differentials.^[39] If these requirements are met, then an employee, on correction of the personnel action, is entitled to receive “an amount equal to all or any part of the pay, allowances, or differentials . . . which the employee normally would have earned.”^[40] Accordingly, the Authority has found that a remedy under the Act must be pay, allowances, or differentials, as defined by OPM.^[41] And applying OPM’s definition of “[p]ay, allowances, and differentials,”^[42] the Authority has held that a remedy under the Act must be “‘pay, leave, [or] other monetary employment benefits’” to which the employee “is entitled by statute or regulation.”^[43] Where there is no statute or regulation permitting that remedy, the Authority has set the remedy aside.^[44]

 

Here, the Arbitrator did not cite a statute or regulation entitling the grievant to “actual expenses including mortgage, utilities, and lawn maintenance” under the Act.^[45] Instead, he cited Naekel,^[46] and stated that “[r]elocation costs . . . have been found to be within the definition of allowances in the [Act].”^[47] Similarly, the Union also argues that under Naekel, relocation costs are “allowances” under the Act.^[48] However, Naekel did not hold that relocation costs are “allowances” under the Act.^[49] Rather, Naekel addressed what amount should be included in a wrongfully discharged employee’s interim earnings, which are set off against an agency’s backpay obligation. In addressing this issue, Naekel merely held that the employee was entitled to deduct certain normally reimbursed relocation costs from his interim earnings.^[50] Moreover, Naekel does not obviate the requirement that there be a federal law or regulation entitling the grievant to “actual expenses.” The Union does not cite, and the record does not show, any federal law or regulation entitling the grievant to “actual expenses.” Accordingly, the “actual expenses” that the grievant incurred for his former home’s “mortgage, utilities, and lawn maintenance”^[51] are not “pay, leave, [or] other monetary employment benefits to which the grievant is entitled by statute or regulation.”^[52] Therefore, they are not pay, allowances, or differentials recoverable under the Act.^[53] Accordingly, the Arbitrator’s award of “actual expenses” is not authorized by the Act.

The Agency also argues that “sovereign immunity” bars the award of “actual expenses.”^[54] Other than the Act, the Union does not cite any statute to support its claim that the award of “actual expenses” is permissible.^[55] And the record does not disclose any waiver of sovereign immunity other than the Act. For these reasons, we conclude that sovereign immunity bars the Arbitrator’s award of “actual expenses.”

As stated previously, the Union contends that the Authority should not consider the Agency’s claims that the home-sale program is discretionary and that the grievant is not entitled to its benefits. The Authority previously has declined to resolve whether an argument was properly before it when the Authority did not need to do so to resolve the exception.^[56] As that is the case here, we do not resolve whether these arguments are properly before us.

 

 

The Agency contends that the Arbitrator awarded attorney fees, and that this award is contrary to law.^[57] The Union asserts that the Arbitrator did not award fees and merely retained jurisdiction.^[58] Even assuming that the Arbitrator awarded attorney fees, the Arbitrator’s monetary remedies are contrary to law. As the Act does not authorize an award of attorney fees without an underlying monetary award,^[59] the Arbitrator’s – alleged – award of attorney fees is unauthorized. Thus, to the extent that the Arbitrator awarded fees, the award of fees is deficient and is set aside. 

 

 

 

 

 

 

 

 

 

 

 

 

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