B-238920, Sep 20, 1990

B-238920, Sep 20, 1990

CIVILIAN PERSONNEL - Relocation - Actual expenses - Eligibility - Distance determination DIGEST: 1. Employee, who was transferred to new official duty station about 60 miles away from old station, is not entitled to relocation expenses where the agency determines that relocation of the employee's residence was not incident to the transfer of duty station because among other things, both the old and new residences were at the old duty station. We will not upset agency's determination that employee's relocation was not incident to transfer where, although employee sold his home, the record contains insufficient evidence of employee's intention or good faith attempt to relocate closer to new duty station. CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility 2. Employee, who was transferred to new duty station 60 miles from old duty station, sold his house at the old station and later moved into a house he already owned also at the old station. His claim for temporary quarters subsistence expenses while occupying temporary quarters at new duty station may not be allowed since the distance between his new residence and old duty station is not more than 40 miles greater than the distance between his old residence and his old duty station, as required by paragraph 2-5.2h of the Federal Travel Regulations.

Gerald M. Anderson - Relocation Expenses - Old and New Residences at Old Station:

The issue in this decision is whether Gerald M. Anderson is entitled to reimbursement for relocation expenses under the circumstances of his change of duty station. /1/ For the reasons stated below, we conclude that his agency's determination that his relocation of residence was not incident to the change of official station was not improper. Therefore, Mr. Anderson is not entitled to reimbursement for his relocation expenses, and he is indebted to the agency for the expenses the agency paid to a government relocation services contractor on his behalf.

Mr. Anderson's change of official station from the Social Security Administration (SSA) office in Olympia, Washington, to the SSA office in Aberdeen, Washington, a distance of approximately 60 miles, was the result of a settlement agreement dated July 23, 1986, disposing of an appeal he then had before the Merit Systems Protection Board. As part of the settlement the parties agreed that Mr. Anderson would receive a paid change of official station from Olympia to Aberdeen, and that "current standard change of station rules" would apply to his move.

On August 4, 1986, Mr. Anderson signed an official document stating to SSA that he intended to relocate from Olympia to Aberdeen, that he wanted his household goods shipped to Aberdeen, and that he intended to buy a residence in Aberdeen. It was on the basis of these and other similar assertions that SSA paid the relocation services contractor $24,093.75 in expenses incurred in the sale of Mr. Anderson's residence in Olympia and the shipment and storage of his household goods.

On September 1, 1986, however, Mr. Anderson refused the additional relocation services offered by the contractor to find him a home in Aberdeen, and, in fact, he never relocated to the Aberdeen area. Instead, after he sold his house in Olympia he and his family lived in temporary quarters in the Aberdeen area for approximately 2 months and then Mr. Anderson and his family relocated to a second house he owned in Olympia which he had previously been renting out. Mr. Anderson commuted from his second house in Olympia to his duty station in Aberdeen from February 28, 1987, until his retirement on December 31, 1987.

The record indicates that the distance from Mr. Anderson's old residence in Olympia to his new duty station in Aberdeen was 55.8 miles and the commuting time was 1 hour and 10 minutes. The distance from his new residence (his former rental property) in Olympia to his new duty station was 56.6 miles and the commuting time was 1 hour and 14 minutes.

In these circumstances the agency determined that the relocation was not incident to the change in official duty station, and that therefore Mr. Anderson was in debt for the amount the agency paid the contractor for Mr. Anderson's relocation (the sale of the old residence and shipment and storage of his household goods). /2/

The standard applicable to all cases involving claims for expenses incurred in an employee's relocation of residence is that it must be "incident to the change of official station." Harvey Knowles, 58 Comp.Gen. 319 at 320 (1979). The fact that an employee's change of station is in the interest of the government does not necessarily make the relocation of his residence incident to the change of station.

The Federal Travel Regulations (FTR), paragraph 2-1.5b(1) (Supp. 4, Aug. 23, 1982), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1989), provide in part that--

"ordinarily, a relocation of residence shall not be considered as incident to a change of official station unless the one-way commuting distance from the old residence to the new official station is at least 10 miles greater than from the old residence to the old official station. Even then, circumstances surrounding a particular case (e.g., relative commuting time) may suggest that the move of residence was not incident to the change of official station." /3/

In Mr. Anderson's case there is no question that he met the 10-mile test. Based on the other circumstances surrounding his case, however, the agency determined that his move of residence was not incident to the change of station.

We have held that a reduction in commuting time and distance is not invariably required for a relocation to be determined incident to the transfer of duty station, nor would the fact, in itself, that the new residence is located near the former residence preclude such a determination. 54 Comp.Gen. 751 (1975). However, these are circumstances which may be considered by the agency in making its determination as to whether an employee's relocation is incident to the transfer of duty station, and the agency has broad discretion in making that determination. See John W. Lacey, 67 Comp.Gen. 336 (1988), and Luella S. Howard, 51 Comp.Gen. 187 (1971). We will not overturn the agency's determination in the absence of a showing that it was clearly erroneous, arbitrary, or capricious. John W. Lacey, 67 Comp.Gen. 336, supra.

In this case we note that the agency's authorization of relocation expenses was based on Mr. Anderson's representation that he intended to relocate to Aberdeen, his new official station. Instead, he moved into a house he already owned in Olympia after benefitting from the contractor's services on the sale of his other residence in Olympia. SSA considered these factors and others, including the distances and times of the commutes, and determined that the change of residence by Mr. Anderson was not made incident to his transfer. On the record before us, we cannot say that SSA's determination and the consequent denial of Mr. Anderson's relocation expenses was erroneous, arbitrary, or an abuse of discretion. Accordingly, Mr. Anderson is not entitled to the relocation services he received and for which the agency paid. /4/

Mr. Anderson also claims temporary quarters subsistence expenses for the period he and his family were in temporary quarters prior to moving into their second residence in Olympia. He apparently received a travel advance for such expenses, but the agency denied his claim on the basis that his change of residences within the same city did not entitle him to reimbursement.

Payment of temporary quarters expenses is not authorized under the facts of this case. Paragraph 2-5.2h of the FTR prohibits the payment of temporary quarters for short distance transfers and defines such transfers for its purposes as those where the distance between the new residence and the old duty station is not more than 40 miles greater than the distance between the old residence and the old duty station. See Travis D. Jackson, B-218513, Feb. 28, 1986. The justification for this limitation is that, because of the short distance involved, the employee should be able to make all the necessary arrangements for a permanent residence without the need to occupy temporary quarters. /5/ See Ida Faye Robinson, B-234476, Apr. 23, 1990. Obviously, Mr. Anderson's move between his two houses in Olympia does not satisfy the 40-mile limitation of FTR para. 2- 5.2h. Accordingly, the claim for temporary quarters must be denied.

Regarding Mr. Anderson's request for waiver of the repayment of the relocation and temporary quarters expenses under 5 U.S.C. Sec. 5584 (1988), that statute requires that there be an erroneous payment of relocation expenses which it would be against equity and good conscience to collect, and that there be no indication of misrepresentation, fault or lack of good faith on the part of the employee. See 4 C.F.R. Sec. 91.5(c) (1988). In this case, the error in payment is directly related to Mr. Anderson's actions in not relocating to Aberdeen as originally represented. Therefore, we find that waiver would be inappropriate. /6/

/1/ This responds to a request for a decision from the Director, Division of Finance, Social Security Administration (SSA), Department of Health and Human Services (HHS).

/2/ Mr. Anderson contested this determination in a hearing under the debt collection procedures established pursuant to 5 U.S.C. Sec. 5514 (1988), but the Administrative Law Judge affirmed the agency's position.

/3/ We note that SSA's published policy indicates that it ordinarily will not consider a relocation incident to the transfer unless the commuting time between the new residence and the new station is "appreciably less (at least 30 minutes)" than between the old residence and the new station, although each case must be considered individually.

/4/ Agencies are authorized to enter into contracts to provide relocation services to employees to carry out the purposes of Subchapter II of Chapter 57, Title 5, U.S. Code. See 5 U.S.C. Sec. 5724c (1988), and implementing regulations in FTR, Part 12 (Supp. 11, Nov. 14, 1983).

/5/ The regulation makes an exception for the period the employee is awaiting arrival of household goods shipped from the old to the new residence. That, however, is not the issue in Mr. Anderson's claim.

/6/ We note that the Administrative Law Judge in his decision in the debt collection proceeding, while recognizing that he lacked authority to waive the debt under 5 U.S.C. Sec. 5584, indicated that he did not view collection of the debt as being against equity and good conscience.