CBP SCREWS EMPLOYEE WITH ITS ADMINISTRATIVE INCOMPETENCE

CBP reassigned an employee from the Bahamas to Houston. Trying to be extra careful about the costs of the move the employee inquired whether he could be reimbursed if he shipped his POV himself. In response, CBP explained that he could arrange for his own shipping, but he would only be reimbursed up to the amount that the Government would have incurred, estimated to be $9652.05, and only for allowable expenses. Then, after the employee incurred the costs, SURPRISE!!! CBP refused to pay a dime of that $9,652.05 claiming that it was wrong when it originally advised him that he would be reimbursed. Here are the details and some advice about what to do if you or a co-worker is also victimized by bad advice from an agency.

The employee, who we assume was not in the bargaining unit and lacked the ability to put the case before an arbitrator, filed an appeal with the Civilian Board of Contract Appeals (CBCA).  That Board recognized that the employee had, “diligently attempted to ensure that his arrangements for transporting his POV comported with agency requirements.” It also found the agency gave the employee the erroneous advice. Finally, it ruled CBP’s actions were “particularly troubling” since the agency clearly knew about this requirement. It wrote, “It is unfortunate that claimant incurred expenses in good faith reliance on what turned out to be deficient advice from CBP officials.

Nevertheless, CBCA pronounced that “it is well-settled law that the Government cannot be bound by the erroneous advice or action of its agents.” (“[R]eceipt by claimant of inadequate or erroneous information is not a basis for granting his claim.”). Accordingly, it denied the employee’s claim, leaving him to scramble to cover the $9,652.05 hole blown in the family’s budget. For more details, see In the Matter of Charles N., CBCA 7258-RELO (2022).

This is hardly the first time an employee has been left holding the bag because s/he relied on bad or incomplete agency advice. We are surprised that not more union contracts address the situation.  After all, there is wiggle room in the law to indirectly reimburse an employee in a situation like this.  For example, an agency could use its discretion under the incentive award program to give a damaged employee in this situation extra cash. There are also ways to grant leave to an employee without charging his annual or sick leave account. More unions should think about negotiating for a clause such as the following so that they can grieve and arbitrate when an agency fails to take all steps within its discretion to compensate an employee for damage done due to incorrect or incomplete agency advice: “When an employee suffers an adverse impact, e.g., a financial loss, due to the agency’s incorrect, incomplete or otherwise poor advice, the agency will take all steps within its power to make the employee whole for the damage done.”