Board of Contract Appeals General Services Administration Washington, D.C. 20405 April 26, 2000 GSBCA 15210-RELO In the Matter of TERESA M. ERICKSON Teresa M. Erickson, FPO Area Pacific, Claimant. Kathie G. Neville, Deputy Director, Personal Property Office, Fleet and Industrial Supply Center, Puget Sound, Bremerton, WA, appearing for Department of the Navy. DANIELS, Board Judge (Chairman). In October 1998, the Department of the Navy transferred Teresa M. Erickson from Washington State to Japan. The director of an agency personal property office wrote to Ms. Erickson at the time, "Due to the non-availability of a service designated long-term POV [privately owned vehicle] storage facility in our area of responsibility, we authorize you to personally procure POV storage from a commercial storage facility. You may file for reimbursement on a quarterly basis . . . . You will be reimbursed for your actual costs for the POV storage at the commercial facility." When Ms. Erickson filed for reimbursement, however, her request was denied. She was told that while members of a uniformed service may be reimbursed for POV storage costs, civilian employees may not. The employee contests this determination, maintaining that she is "entitled to reimbursement for my POV storage costs based on the commitment of the Government . . . and the lack of any regulation prohibiting such reimbursement." The deputy director of the agency personal property office responds, "Ms. Erickson was mis-counseled as to her entitlement to store her POV at Government expense while stationed in Japan. I sincerely hope that Ms. Erickson may be allowed relief from the expenses incurred as a result of the information that she received from this office." The agency's determination not to reimburse Ms. Erickson's POV storage costs was legally correct. Statute and regulation allow agencies to pay costs of storage of household goods of civilian employees who are transferred to a duty station outside the continental United States, but POVs are not "household goods." 5 U.S.C. 5726 (1994 & Supp. IV 1998); 41 CFR 302-1.4(j)(1)(i), -9.2 (1998); JTR C8002-C.3 (May 1, 1995), app. A. An agency may pay for storage of a transferred civilian employee's POV only in very limited circumstances: when the POV was transported to a post of duty at Government expense and the head of the agency determines that the post is within a zone from which the employee's immediate family and/or household goods should be evacuated. 5 U.S.C. 5726(a) (Supp. IV 1998); 41 CFR 302-10.400; JTR C11007 (Oct. 1, 1996). Ms. Erickson was not in these circumstances. The two equitable arguments Ms. Erickson makes in support of her request for reimbursement are not availing. The fact that the agency promised Ms. Erickson that it would pay for storage of her vehicle has no legal significance. Denying the employee payment of costs she incurred in reliance on the Government's commitment may seem unfair. Allowing an agency to make a payment for a purpose not authorized by statute or regulation, however, 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. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); see also Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). Payments may be made only for purposes which may be fairly said to have been authorized by law. The Court has held that an agency "may not confer power upon itself." It "literally has no power to act . . . unless and until Congress confers power upon it." Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 374 (1986). The Court of Appeals for the Federal Circuit has put the principle this way: "An agency is but a creature of statute. Any and all authority pursuant to which an agency may act ultimately be grounded in an express grant from Congress." Killip v. Office of Personnel Management, 991 F.2d 1564, 1569 (Fed. Cir. 1993). The Department of the Navy's authority to pay costs associated with an employee's relocation from one duty station to another is grounded in subchapter II of chapter 57 of title 5, United States Code, and the regulations issued by the Administrator of General Services (under express Congressional charge) to implement that statute. Those regulations have the force of law and must be followed. Sargisson v. United States, 913 F.2d 918, 921 (Fed. Cir. 1990); see also Chrysler Corp. v. Brown, 441 U.S. 281, 301- 03 (1979) (as to "legislative regulations"); Lorrie L. Wood, GSBCA 13705-TRAV, 97-1 BCA 28,707 (1996) (same). Since the relevant statute and regulations do not provide for reimbursement of Ms. Erickson's vehicle storage costs, the Navy may not make such reimbursement. _________________________ STEPHEN M. DANIELS Board Judge