Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405



                                                 

                        November 15, 2001
                                                 


                         GSBCA 15684-RELO


                 In the Matter of LOUISE C. MaSSE


     Louise C. Masse, Chevy Chase, MD, Claimant.

     Kenneth W. Stith, Director, Office of Financial Management, National Institutes of
Health, Department of Health and Human Services, Bethesda, MD, appearing for Department
of Health and Human Services.

DANIELS, Board Judge (Chairman).

     The National Institutes of Health (NIH) asks, pursuant to 31 U.S.C.   3529 (Supp. V
1999), whether it may pay temporary quarters subsistence expenses (TQSE) incurred by Dr.
Louise C. Masse, a special consultant to the Public Health Service.  We conclude that these
expenses may not be paid.

                            Background

     In October 2000, the agency interviewed Dr. Masse for a position as a consultant.  In
the course of ensuing negotiations between the agency and the doctor, the agency agreed to
make available all allowances and benefits which it then afforded to newly appointed
consultants.  TQSE were among these items.  On December 7, 2000, Dr. Masse was offered
and accepted a position with the National Cancer Institute.  At that time, NIH, by written
policy, paid TQSE to expert and consultant appointees.  Travel and Shipping Entitlements
Pamphlet for Civilian Employees (NIH Feb. 1991).

     On December 18, 2000, following a lengthy examination of travel rules and
regulations, the NIH revised its written policy to provide that newly-hired special consultants,
like other new appointees to Government service, are not eligible for TQSE allowances.  NIH
Manual, ch. 1500 (Travel Policies and Procedures) (Dec. 18, 2000), available at
http://www1.od.nih.gov/oma/manualchapters/management/1500/09.html (visited Nov. 13,
2001)).

     Dr. Masse moved from Texas to Maryland and began her consultancy in May 2001.

                            Discussion

     By statute, a new appointee to federal service is entitled to certain benefits when she
moves to her duty station from her place of residence at the time of appointment.  5 U.S.C. 
  5722, 5723 (2000).  These benefits are similar to those provided to an employee whom an
agency transfers in the interest of the Government from one duty station to another, id.  
 5724, 5724a, but they are not identical.  Of importance to this case, the law authorizes
agencies to reimburse transferred employees, but not new appointees, for TQSE.  Roy
Katayama, GSBCA 15605-RELO, 01-2 BCA   31,542; Barbara A. Caviness, GSBCA
15390-RELO, 01-2 BCA   31,498.

     Dr. Masse was appointed to her position under authority conferred by 42 U.S.C. 
 209(f) (1994).  That law states: "In accordance with regulations, special consultants may be
employed to assist and advise in the operations of the [Public Health] Service.  Such
consultants may be appointed without regard to the civil-service laws."  As an individual
entering federal service, Dr. Masse must be considered a new appointee and therefore
ineligible for TQSE unless "the civil-service laws" without regard to which she was
appointed may be deemed to include the statutes governing travel and transportation
expenses of federal appointees and employees.

     Reading the term "the civil-service laws" in 42 U.S.C.   209(f) to include the statutes
governing travel and transportation expenses of federal appointees and employees would be
unreasonable.  In 1944, the Congress enacted this provision as part of  "a comprehensive bill
which would substitute for the existing mass of uncorrelated legislation a compact and
logically arranged law governing the Public Health Service."  U.S. Code Congressional
Service 1211, 1212 (1944).  The action was taken "merely [to confirm] the present situation"
with regard to "exemption from civil service and [pay] classification laws."  Id. at 1218. 
There is no indication in the legislation itself, Public Health Service Act, Pub. L. No. 78-410, 
 208(c), 58 Stat. 682, 686 (1944), or the legislative history, that the exemption was designed
to cover more than hiring and compensation.  The official annotation to the current version
of the United States Code regarding this provision says that the term "the civil-service laws"
refers, most particularly, to chapter 33 of title 5 of the Code.  42 U.S.C.   209 note (1994). 
Chapter 33 is entitled "Examination, Selection, and Placement."  Pay and classification of
federal employees are addressed in chapters 51 and 53 of title 5.  Travel and transportation,
on the other hand, are addressed in chapter 57.  Payments for items covered in chapter 57
(including relocation benefits) are not encompassed within the term "pay."  Synita Revels,
GSBCA 14935-RELO, 00-1 BCA   30,716 (1999), reconsideration denied, 00-1 BCA 
 30,896.  Further indicative of Congress' desire that pay be treated distinctly from travel and
transportation is the statutory provision that claims of or against the Government involving
civilian employees' compensation are to be resolved by the Office of Personnel Management,
whereas claims by those persons involving travel and transportation, and relocation, are to
be resolved by the General Services Administration.  31 U.S.C.   3702(a) (Supp. V 1999).

     We consequently conclude that although NIH had the authority to hire and pay Dr.
Masse without regard to civil service laws, the agency was precluded by another statute from
reimbursing her, as a new appointee, for TQSE she may have incurred when relocating to
assume her position.  The current agency rules, adopted on December 18, 2000, state the law
correctly insofar as they address TQSE for new appointees.  The previous rules were contrary
to law as to this matter and therefore have no affect on it.

     Dr. Masse says that she and her husband made their decision to relocate as and when
they did in reliance, in part, on NIH's promise to reimburse her for TQSE they incurred.  She
asserts that a failure to make reimbursement would be unethical and would impose a
financial hardship on the couple.

     That the employee may have relied on a promise the agency made, but is legally
barred from fulfilling, is clearly unfortunate   an "unpalatable result," as we have recently
described the predicament.  David B. Nelson, GSBCA 15609-RELO (Aug. 30, 2001). 
Nevertheless, the law is clear on the matter at issue.

     Any theory such as detrimental reliance which is based on contract law cannot help
the claimant.

     The courts have consistently held that there is a "well-established principle
     that, absent specific legislation, federal employees derive the benefits and
     emoluments of their positions from appointment rather than from any
     contractual or quasi-contractual relationship with the government."  Chu v.
     United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985).  In other words, "public
     employment does not . . . give rise to a contractual relationship in the
     conventional sense."  Shaw v. United States, 640 F.2d 1254, 1260 (Ct. Cl.
     1981) (quoting Urbina v. United States, 428 F.2d 1280, 1284 (Ct. Cl. 1970));
     see also [many other court decisions]. 

Revels, 00-1 BCA at 151,712 n.2.
 [Foot # 1 ] 
     
****************** Footnote Begin **********
[Foot # 1 ]       Both the cited Chu decision and a related decision, Chu v. Schweiker, 690
F.2d 330, 333 (2d Cir. 1982), express this principle in the context of litigation by Public
Health Service employees against the agency which employed them.
****************** Footnote End ************

 The issue thus becomes solely one of relating statutory and regulatory provisions to a
specific situation.  As we have previously explained:

     In considering claims like this one, . . . the arbiter must balance the harm the
     employee would suffer if the claim were denied against the damage which
     would result to our system of government if federal officials were free to
     spend money in ways which are contrary to the strictures of statute and
     regulation.  In making this balance, the Supreme Court has clearly come down
     on the side of protecting our system of government.  We follow the Court in
     holding that although [the employee] has undeniably relied to his detriment on
     [the agency's] promises, he may not be reimbursed because the law prevents
     the agency from honoring commitments made in its name by officials who do
     not have the power to make them.

Gary MacLeay, GSBCA 15394-RELO, 01-1 BCA   31,210 (2000); Pamela A. Mackenzie,
GSBCA 15328-RELO, 01-1 BCA   31,174 (2000); George S. Page, GSBCA 15114-RELO,
00-1 BCA   30,707 (1999) (all citing Office of Personnel Management v. Richmond, 496
U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)).





                                   _________________________ 
                                   STEPHEN M. DANIELS
                                   Board Judge