B-207507, MAY 17, 1983

B-207507: May 17, 1983

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AN FAA AIR TRAFFIC CONTROLLER WAS TRANSFERRED ON JUNE 6. HE WAS PLACED IN AN UNAUTHORIZED ABSENCE STATUS AND THEN REMOVED FROM HIS POSITION ON A FINDING HE PARTICIPATED IN THE AIR TRAFFIC CONTROLLER'S STRIKE ON AUGUST 3. WE FIND HE IS ENTITLED TO BE REIMBURSED FOR HIS FAMILY'S TRAVEL AND PER DIEM AND FOR THE HOUSEHOLD GOODS SHIPMENT. 2. PERMITTED THE AGENCY TO EXTEND THE 1-YEAR PERIOD IF IT DETERMINES THAT THE RESIDENCE TRANSACTION IS REASONABLY RELATED TO THE TRANSFER. IS SUFFICIENT TO CONSTITUTE A REQUEST FOR EXTENSION. 3. A FORMER FAA AIR TRAFFIC CONTROLLER'S CLAIM FOR REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE PERIOD PRIOR TO HIS REMOVAL FOR STRIKING MAY NOT BE ALLOWED WHERE THE RECORD INDICATES THAT THE QUARTERS HE RESIDED IN WERE NOT TEMPORARY.

B-207507, MAY 17, 1983

DIGEST: 1. AN FAA AIR TRAFFIC CONTROLLER WAS TRANSFERRED ON JUNE 6, 1980, AND COMPLETED HIS REQUIRED 1 YEAR OF SERVICE FOLLOWING THE TRANSFER ON JUNE 6, 1981. HE WAS PLACED IN AN UNAUTHORIZED ABSENCE STATUS AND THEN REMOVED FROM HIS POSITION ON A FINDING HE PARTICIPATED IN THE AIR TRAFFIC CONTROLLER'S STRIKE ON AUGUST 3, 1981. WHILE ON STRIKE, BUT BEFORE REMOVAL, HE MOVED HIS FAMILY AND HIS HOUSEHOLD GOODS TO THE NEW DUTY STATION AREA. WE FIND HE IS ENTITLED TO BE REIMBURSED FOR HIS FAMILY'S TRAVEL AND PER DIEM AND FOR THE HOUSEHOLD GOODS SHIPMENT. 2. A FORMER FAA AIR TRAFFIC CONTROLLER WHO COMPLETED HIS 1 YEAR OF SERVICE IN JUNE 1981, FOLLOWING A PERMANENT CHANGE OF STATION, CLAIMS REIMBURSEMENT FOR CERTAIN COSTS OF SETTLEMENT FOR SALE OF HIS OLD RESIDENCE WHICH OCCURRED AFTER THE 1-YEAR PERIOD, AND BEFORE HIS REMOVAL FOR STRIKING ON AUGUST 24, 1981. PARAGRAPH 2-6.1E OF THE FEDERAL TRAVEL REGULATIONS (MAY 1973) AS THEN EFFECTIVE, PERMITTED THE AGENCY TO EXTEND THE 1-YEAR PERIOD IF IT DETERMINES THAT THE RESIDENCE TRANSACTION IS REASONABLY RELATED TO THE TRANSFER. SUBJECT TO FAA'S DETERMINATION, THE EXTENSION MAY BE GRANTED SINCE ANY WRITTEN STATEMENT BY THE EMPLOYEE, EVEN THE SUBMISSION OF A CLAIM, IS SUFFICIENT TO CONSTITUTE A REQUEST FOR EXTENSION. 3. A FORMER FAA AIR TRAFFIC CONTROLLER'S CLAIM FOR REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE PERIOD PRIOR TO HIS REMOVAL FOR STRIKING MAY NOT BE ALLOWED WHERE THE RECORD INDICATES THAT THE QUARTERS HE RESIDED IN WERE NOT TEMPORARY. WE FIND NO AUTHORITY FOR REIMBURSEMENT OF SUCH EXPENSES FOR THE PERIOD AFTER HIS REMOVAL.

RONALD C. THOMAS - RELOCATION EXPENSES - STRIKING AIR TRAFFIC CONTROLLER:

THIS DECISION IS IN RESPONSE TO A CLAIM FOR RELOCATION EXPENSES IN THE CASE OF MR. RONALD C. THOMAS, A FORMER AIR TRAFFIC CONTROLLER, EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION (FAA) WHO WAS REMOVED FROM HIS POSITION EFFECTIVE AUGUST 24, 1981, FOR STRIKING.

THE ISSUE PRESENTED IS WHETHER A GOVERNMENT EMPLOYEE WHO IS REMOVED FROM EMPLOYMENT FOR CAUSE LOSES HIS ENTITLEMENT TO BE REIMBURSED FOR RELOCATION EXPENSES INCURRED WHILE IN AN UNAUTHORIZED ABSENCE STATUS AND BOTH BEFORE AND AFTER HIS REMOVAL. OUR CONCLUSIONS ARE STATED BELOW.

BACKGROUND

IN 1980, FOLLOWING COMPLETION OF A 2-YEAR TOUR OF DUTY AS AN INSTRUCTOR AT THE FEDERAL AVIATION ADMINISTRATION ACADEMY, OKLAHOMA CITY, OKLAHOMA, MR. THOMAS WAS AUTHORIZED TO BE TRANSFERRED TO THE AGENCY'S EASTERN REGION. ON APRIL 4, 1980, INCIDENT TO THAT APPROVED TRANSFER, MR. THOMAS EXECUTED A STANDARD TRAVEL AND TRANSPORTATION AGREEMENT WHEREIN HE AGREED TO REMAIN IN GOVERNMENT SERVICE FOR A PERIOD OF 12 MONTHS FOLLOWING HIS TRANSFER. IN EXCHANGE, THE GOVERNMENT AGREED TO PAY FOR HIS TRAVEL, THE TRAVEL OF HIS IMMEDIATE FAMILY, TRANSPORTATION OF HIS HOUSEHOLD GOODS, AND REIMBURSEMENT FOR CERTAIN OTHER EXPENSES INCURRED AS A RESULT OF THAT MOVE FROM HIS OLD TO HIS NEW PERMANENT DUTY STATION.

EFFECTIVE JUNE 6, 1980, HE WAS TRANSFERRED AND ASSIGNED TO THE POSITION OF AIR TRAFFIC CONTROL SPECIALIST AT THE ISLIP-MACARTHUR AIRPORT, RONKONKOMA, NEW YORK. HE COMPLETED HIS REQUIRED 1 YEAR OF SERVICE THERE ON JUNE 6, 1981.

A NATIONWIDE AIR TRAFFIC CONTROLLERS STRIKE OCCURRED ON AUGUST 3, 1981. IN CONJUNCTION WITH THAT STRIKE, MR. THOMAS DID NOT REPORT FOR HIS REGULAR TOUR OF DUTY THAT DAY, OR ON ANY SUBSEQUENT DAY. AS A RESULT, HE WAS TREATED AS A STRIKE PARTICIPANT.

BY LETTER DATED AUGUST 8, 1981, MR. THOMAS WAS OFFICIALLY INFORMED THAT THE AGENCY INTENDED TO REMOVE HIM FROM HIS POSITION AS AN AIR TRAFFIC CONTROLLER BECAUSE OF HIS STRIKE ACTIVITIES AND THAT HE WAS TO BE CARRIED IN AN UNAUTHORIZED ABSENCE STATUS COMMENCING AUGUST 3, 1981. EFFECTIVE AUGUST 24, 1981, HE WAS OFFICIALLY REMOVED FROM HIS POSITION. FOLLOWING HIS REMOVAL, HE, ALONG WITH A NUMBER OF SIMILARLY AFFECTED AIR TRAFFIC CONTROLLERS, FILED AN APPEAL WITH THE MERIT SYSTEMS PROTECTION BOARD. HAVE BEEN INFORMED THAT THAT APPEAL WAS REJECTED. SEE RICHARD E. GOLLE, ET AL. V. DOT/FAA, MSPB ORDER NO. NY075281F0560 (OCTOBER 14, 1982). MR. THOMAS STATES THAT HIS APPLICATION FOR REINSTATEMENT HAS BEEN DENIED AND THAT HE HAS NOW ABANDONED ALL ATTEMPTS TO REGAIN FEDERAL EMPLOYMENT.

MR. THOMAS COMPLETED HIS 1-YEAR SERVICE PERIOD ON JUNE 6, 1981. HOWEVER, THE TRAVEL OF HIS IMMEDIATE FAMILY, TRANSPORTATION OF HOUSEHOLD GOODS AND HIS INCURRENCE OF OTHER EXPENSES DID NOT OCCUR UNTIL AFTER AUGUST 3, 1981, WHEN THE STRIKE BEGAN AND AFTER HE WAS PLACED IN AN UNAUTHORIZED ABSENCE STATUS. ADDITIONALLY, SOME OF THE EXPENSES CLAIMED WERE NOT INCURRED UNTIL AFTER HE WAS SEPARATED FROM GOVERNMENT SERVICE.

THE MAJOR ITEMS FOR WHICH MR. THOMAS IS SEEKING REIMBURSEMENT ARE:

(1) DEPENDENTS' TRAVEL: AUGUST 17-20, 1981 (2) HOUSEHOLD GOODS SHIPMENT: AUGUST 22, 1981 (3) COST OF REAL ESTATE SETTLEMENT: AUGUST 13, 1981 (4) TEMPORARY QUARTERS SUBSISTENCE EXPENSES: AUGUST 21, 1981 - SEPTEMBER 19, 1981

SINCE THERE IS A LACK OF PRECEDENT COVERING THIS TYPE OF SITUATION, THE FAA FORWARDED THIS CLAIM TO THIS OFFICE FOR OUR DETERMINATION. WITH REGARD TO MR. THOMAS' EXPENSES, THE FAA HAS SUGGESTED THAT SINCE THE EXPENSES ALL WERE INCURRED AFTER THE STRIKE BEGAN AND SINCE HE WAS REMOVED FROM HIS POSITION AS A DIRECT RESULT OF HIS PARTICIPATION IN THAT ACTIVITY, THEY SHOULD NOT BE PAID.

OPINION

SECTION 5724 OF TITLE 5, U.S.C. (1976), AUTHORIZES, GENERALLY, THE REIMBURSEMENT OF TRAVEL EXPENSES OF AN EMPLOYEE OF THE FEDERAL GOVERNMENT TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL DUTY STATION TO ANOTHER FOR PERMANENT DUTY, AS WELL AS THE TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND MOVEMENT OF HIS HOUSEHOLD GOODS. ADDITIONALLY, 5 U.S.C. SEC. 5724A AUTHORIZES, GENERALLY, THE PAYMENT OF PER DIEM, TEMPORARY QUARTERS SUBSISTENCE EXPENSES, AND THE REIMBURSEMENT OF CERTAIN EXPENSES INCURRED ATTENDANT TO THE SALE OF THE EMPLOYEE'S RESIDENCE AT HIS OLD OFFICIAL DUTY STATION.

ENTITLEMENTS UNDER 5 U.S.C. SECS. 5724 AND 5724A, WHILE SUBJECT TO CERTAIN LIMITATIONS DESCRIBED THEREIN, AS WELL AS THOSE LIMITATIONS CONTAINED IN THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (MAY 1973) (FTR), ARE PREDICATED UPON THE INDIVIDUAL SATISFYING THE BASIC CONDITIONS STATED IN THOSE PROVISIONS. THOSE CONDITIONS ARE THAT THE INDIVIDUAL IS AN EMPLOYEE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL DUTY STATION TO ANOTHER FOR PERMANENT DUTY, AND THAT HE AGREES TO AND DOES REMAIN IN GOVERNMENT SERVICE FOR AT LEAST 12 MONTHS AFTER HIS TRANSFER. SEE 55 COMP.GEN. 645 (1976).

MR. THOMAS COMPLETED 1 YEAR OF SERVICE AT HIS NEW DUTY STATION, AND HIS TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT. DURING THE PERIOD AUGUST 3-24, 1981, MR. THOMAS WAS CARRIED IN AN UNAUTHORIZED ABSENCE STATUS, WHICH STATUS DEPRIVED HIM OF PAY, AS WELL AS ANNUAL AND SICK LEAVE ACCRUAL. HOWEVER, HE REMAINED IN THE STATUS OF AN EMPLOYEE OF THE FEDERAL GOVERNMENT UNTIL HE WAS SEPARATED FROM THE SERVICE. SEE 45 COMP.GEN. 680, 682 (1966). THUS, IN THE ABSENCE OF FURTHER LIMITATION IMPOSED UNDER LAW AND REGULATIONS ON HIS RIGHTS AS AN EMPLOYEE, HE IS ENTITLED TO BE REIMBURSED FOR THE TRAVEL AND RELOCATION EXPENSES INCURRED PRIOR TO HIS SEPARATION.

DEPENDENTS' TRAVEL AND HOUSEHOLD GOODS SHIPMENT

THE OTHERWISE PROPER EXPENSES INCURRED BY MR. THOMAS FOR THE TRAVEL OF HIS IMMEDIATE FAMILY FROM OKLAHOMA CITY, OKLAHOMA, TO RONKONKOMA, NEW YORK, DURING THE PERIOD AUGUST 17-20, 1981, AND MOVEMENT OF HIS HOUSEHOLD GOODS ON AUGUST 22, 1981, ARE REIMBURSABLE TO HIM FOR THE REASONS STATED ABOVE.

TEMPORARY QUARTERS SUBSISTENCE EXPENSE

THE TEMPORARY QUARTERS SUBSISTENCE EXPENSES CLAIMED BY MR. THOMAS COVER THE PERIOD AUGUST 21, 1981, TO SEPTEMBER 19, 1981. HOWEVER, ONLY THOSE SUBSISTENCE EXPENSES WHICH WERE INCURRED DURING THE PERIOD AUGUST 21-24, 1981, MAY BE CONSIDERED FOR ALLOWANCE SINCE THERE IS NO AUTHORITY FOR REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES INCURRED AFTER AN EMPLOYEE IS SEPARATED FROM GOVERNMENT SERVICE.

WITH REGARD TO THE EXPENSES CLAIMED FOR THE PERIOD AUGUST 21-24, 1981, THE ISSUE IS WHETHER THE QUARTERS OCCUPIED BY MR. THOMAS AND HIS FAMILY WERE TEMPORARY QUARTERS.

"TEMPORARY QUARTERS" HAS BEEN DEFINED AS ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THEIR PRIOR QUARTERS AT THE TIME THE TRANSFER WAS AUTHORIZED. SEE FTR PARAGRAPH 2-5.2C. HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE TYPE OF RESIDENCE OCCUPIED, THAT IS, TEMPORARY OR PERMANENT, IS BASED ON THE INTENT OF THE EMPLOYEE AT THE TIME HE OR A MEMBER OF HIS FAMILY MOVES INTO THE QUARTERS WHICH LATER BECAME HIS PERMANENT RESIDENCE. DOUGLAS D. MASON, B-196284, AUGUST 14, 1980. THUS, WE HAVE DENIED TEMPORARY QUARTERS SUBSISTENCE EXPENSE REIMBURSEMENT FOR THE PERIOD AN EMPLOYEE RENTED A HOME HE INTENDED TO PURCHASE AS HIS PERMANENT RESIDENCE. EDWIN BOSAW, B-201861, APRIL 1, 1981.

SINCE THE RESIDENCE HE PRESENTLY OCCUPIES HAS THE SAME STREET ADDRESS WHICH MR. THOMAS WAS USING PRIOR TO HIS FAMILY'S ARRIVAL AT THAT LOCATION, A STRONG PRESUMPTION ARISES THAT HE ALWAYS INTENDED TO MAKE THAT RESIDENCE A PERMANENT ONE. THEREFORE, MR. THOMAS' CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE USE OF THAT RESIDENCE DURING THE PERIOD AUGUST 21-24, 1981 IS DENIED.

REAL ESTATE SETTLEMENT

WITH REGARD TO MR. THOMAS' CLAIM FOR REIMBURSEMENT FOR SETTLEMENT COSTS ON THE SALE OF HIS RESIDENCE ON OKLAHOMA CITY, THAT ALLOWANCE IS SUBJECT TO AGENCY APPROVAL.

THE REGULATIONS GOVERNING THE ENTITLEMENT OF FEDERAL EMPLOYEES TO BE REIMBURSED FOR CERTAIN EXPENSES INCURRED IN CONNECTION WITH RESIDENCE TRANSACTIONS INCIDENT TO A PERMANENT CHANGE OF STATION (5 U.S.C. SEC. 5724AA)(4)), ARE CONTAINED IN PART 6 OF CHAPTER 2, OF THE FTR. AS OF THE TIME IN QUESTION, PARAGRAPH 2-6.1E PROVIDED IN PART:

"E. TIME LIMITATION. THE SETTLEMENT DATES FOR THE SALE *** OF A RESIDENCE FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN 1 (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION. UPON AN EMPLOYEE'S WRITTEN REQUEST THIS TIME LIMIT FOR COMPLETION OF THE SALE *** OF THE RESIDENCE MAY BE EXTENDED BY THE HEAD OF THE AGENCY OR HIS/HER DESIGNEE FOR AN ADDITIONAL PERIOD OF TIME NOT TO EXCEED 1 YEAR, REGARDLESS OF THE REASONS THEREFOR SO LONG AS IT IS DETERMINED THAT THE PARTICULAR RESIDENCE TRANSACTION IS REASONABLY RELATED TO THE TRANSFER OF OFFICIAL STATION."

UNDER THE FOREGOING PROVISIONS, A TRANSFERRED EMPLOYEE NEED NOT HAVE ENTERED INTO A SALE OR PURCHASE AGREEMENT WITHIN THE INITIAL YEAR FOLLOWING HIS TRANSFER IN ORDER TO BE ELIGIBLE FOR A 1-YEAR EXTENSION OF THE SETTLEMENT DATE LIMITATION. GEORGE F. RAKOUS, JR., 57 COMP.GEN. 28 (1977). THE ONLY REQUIREMENT IS THAT THE EXTENSION REQUEST MUST BE IN WRITING. IN RONALD F. HOUSKA, B-191087, MARCH 14, 1978, CITING TO SHELBY BROWNFIELD, ET AL., B-182988, NOVEMBER 26, 1975, WE STATED:

"ANY WRITTEN STATEMENT BY THE EMPLOYEE, EVEN THE SUBMISSION OF A CLAIM BEYOND THE INITIAL YEAR, IS SUFFICIENT TO CONSTITUTE A REQUEST FOR EXTENSION. *** ACCORDINGLY, THE SUBMISSION OF A CLAIM BY THE EMPLOYEE FOR REIMBURSEMENT OF REAL ESTATE EXPENSES SHOULD BE CONSIDERED AS A REQUEST FOR AN EXTENSION."

THUS, THE SUBMISSION OF A CLAIM BY MR. THOMAS FOR REIMBURSEMENT OF REAL ESTATE EXPENSES SHOULD BE CONSIDERED AS A REQUEST FOR AN EXTENSION.

WE ALSO RULED IN HOUSKA, SUPRA, THAT THE AGENCY DETERMINATION TO GRANT AN EXTENSION AFTER THE EXPIRATION OF THE INITIAL 1-YEAR PERIOD IS A MATTER WITHIN THE DISCRETION OF THE HEAD OF THE AGENCY OR HIS DESIGNEE. FURTHER, WE WOULD NOT OBJECT TO SUCH DECISION UNLESS IT APPEARS TO BE ARBITRARY OR CAPRICIOUS. IN THIS REGARD, WHERE ADMINISTRATIVE APPROVAL IS GRANTED ON THE BASIS THAT THE INCURRENCE OF EXPENSES INCIDENT TO THE SALE OR PURCHASE OF A RESIDENCE WAS REASONABLY RELATED TO A TRANSFER, REIMBURSEMENT MAY BE ALLOWED SO LONG AS THE SETTLEMENT WAS MADE WITHIN 2 YEARS OF THE TRANSFER. RONALD G. CHASSIE, B-183013, MARCH 20, 1975, AND MAJOR H. BOOTH, JR., B-187027, APRIL 5, 1977.

IN SUMMARY, MR. THOMAS' CLAIM FOR REIMBURSEMENT FOR DEPENDENT TRAVEL AND HOUSEHOLD GOODS SHIPMENT MAY BE PAID; HIS TEMPORARY QUARTERS SUBSISTENCE EXPENSES CLAIM MAY NOT BE PAID; AND REIMBURSEMENT FOR HIS REAL ESTATE SETTLEMENT COSTS MAY BE PAID SUBJECT TO AGENCY APPROVAL OF HIS EXTENSION REQUEST.