B-216938, JAN 3, 1985

B-216938: Jan 3, 1985

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THE AGENCY REFUSED TO AUTHORIZE THESE EXPENSES FOR THE FAIRBANKS TO PORTLAND TRANSFER ON THE BASIS THE TRANSFER WAS AT THE EMPLOYEE'S REQUEST DUE TO PERSONAL REASONS. THE EMPLOYEE'S CLAIM MAY NOT BE ALLOWED SINCE THE AGENCY'S DETERMINATION CONSTITUTED A FINDING THAT THE TRANSFER WAS NOT IN THE INTEREST OF THE GOVERNMENT AS REQUIRED BY 5 U.S.C. NAPIER: AN EMPLOYEE WHO RETURNED FROM ALASKA PURSUANT TO A TRANSPORTATION AGREEMENT AUTHORIZING REIMBURSEMENT OF TRAVEL FOR THE EMPLOYEE AND TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD GOODS ALSO CLAIMS REAL ESTATE EXPENSES INCIDENT TO THAT AGREEMENT. /1/ SINCE REIMBURSEMENT FOR REAL ESTATE EXPENSES IS NOT AUTHORIZED UNDER THE PROVISION OF LAW WHICH ALLOWS PAYMENT OF TRAVEL EXPENSES UPON AN EMPLOYEE'S COMPLETION OF A TOUR OF DUTY IN ALASKA.

B-216938, JAN 3, 1985

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - ADMINISTRATIVE DETERMINATION - TRANSFER FOR EMPLOYEE'S CONVENIENCE DIGEST: AN INTERNAL REVENUE SERVICE EMPLOYEE CLAIMS REAL ESTATE EXPENSES UNDER A TRANSPORTATION AGREEMENT EXECUTED INCIDENT TO HIS TRANSFER FROM INDIANAPOLIS, INDIANA, TO FAIRBANKS, ALASKA. AFTER FULFILLING HIS 2 YEAR COMMITMENT TO WORK IN ALASKA, THE EMPLOYEE REQUESTED A TRANSFER TO PORTLAND, MAINE, FOR PERSONAL REASONS. THE AGENCY HONORED THE TRANSPORTATION AGREEMENT BY AGREEING TO PAY TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEE, HIS DEPENDENTS, AND THEIR HOUSEHOLD GOODS FROM FAIRBANKS TO INDIANAPOLIS. ALTHOUGH REAL ESTATE EXPENSES HAD BEEN AUTHORIZED FOR HIS TRANSFER TO FAIRBANKS, THE AGENCY REFUSED TO AUTHORIZE THESE EXPENSES FOR THE FAIRBANKS TO PORTLAND TRANSFER ON THE BASIS THE TRANSFER WAS AT THE EMPLOYEE'S REQUEST DUE TO PERSONAL REASONS. THE EMPLOYEE'S CLAIM MAY NOT BE ALLOWED SINCE THE AGENCY'S DETERMINATION CONSTITUTED A FINDING THAT THE TRANSFER WAS NOT IN THE INTEREST OF THE GOVERNMENT AS REQUIRED BY 5 U.S.C. SECS. 5724(H).

PHILIP M. NAPIER:

AN EMPLOYEE WHO RETURNED FROM ALASKA PURSUANT TO A TRANSPORTATION AGREEMENT AUTHORIZING REIMBURSEMENT OF TRAVEL FOR THE EMPLOYEE AND TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD GOODS ALSO CLAIMS REAL ESTATE EXPENSES INCIDENT TO THAT AGREEMENT. /1/ SINCE REIMBURSEMENT FOR REAL ESTATE EXPENSES IS NOT AUTHORIZED UNDER THE PROVISION OF LAW WHICH ALLOWS PAYMENT OF TRAVEL EXPENSES UPON AN EMPLOYEE'S COMPLETION OF A TOUR OF DUTY IN ALASKA, THE EMPLOYEE'S CLAIM IS DENIED.

MR. PHILIP M. NAPIER WAS EMPLOYED BY THE INTERNAL REVENUE SERVICE AS A REVENUE OFFICER AT THE TIME OF HIS TRANSFER FROM INDIANAPOLIS, INDIANA, TO FAIRBANKS, ALASKA, EFFECTIVE FEBRUARY 12, 1979. INCIDENT TO THAT TRANSFER, A TRANSPORTATION AGREEMENT WAS EXECUTED. IT PROVIDED THAT IN CONSIDERATION OF HIS AGREEMENT TO PERFORM DUTY AT FAIRBANKS, ALASKA, FOR 2 YEARS, THE INTERNAL REVENUE SERVICE AGREED TO PAY MR. NAPIER'S TRAVEL AND THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS FROM INDIANAPOLIS TO FAIRBANKS. THE AGREEMENT ALSO PROVIDED THAT UPON COMPLETION OF THE 2- YEAR PERIOD OF SERVICE, MR. NAPIER WOULD BECOME ENTITLED TO REIMBURSEMENT OF THE SAME EXPENSES FOR THE RETURN TRIP. IN ADDITION TO THE ABOVE EXPENSES COVERED BY THE TRANSPORTATION AGREEMENT, THE SERVICE ISSUED A FORM 4253 WHICH AUTHORIZED TEMPORARY QUARTERS ALLOWANCE, AN ALLOWANCE FOR REAL ESTATE TRANSACTIONS, AND MISCELLANEOUS MOVING EXPENSES. THE FORM 4253 CONSTITUTED A SEPARATE AUTHORIZATION TO COVER EXPENSES NOT COVERED BY THE TRANSPORTATION AGREEMENT.

AFTER SERVING OVER 2 YEARS IN FAIRBANKS, MR. NAPIER REQUESTED THAT HE BE TRANSFERRED TO PORTLAND, MAINE, DUE TO PERSONAL REASONS. THE SERVICE ACCOMMODATED HIM AND EFFECTIVE JULY 5, 1981, HE WAS TRANSFERRED TO PORTLAND. IN ACCEPTING THE TRANSFER, HE ALSO ACCEPTED A DOWNGRADE FROM GS -11 TO GS-9. THE NOTIFICATION OF PERSONNEL ACTION, SF-50, DATED JUNE 12, 1981, STATES THAT THE TRANSFER WAS "AT EMPLOYEE REQUEST. MOVING EXPENSES ARE NOT AUTHORIZED UNDER P.L. 89-516."

AFTER TRANSFERRING TO PORTLAND, MR. NAPIER, REFERRING TO THE TRANSPORTATION AGREEMENT, SOUGHT REIMBURSEMENT OF THE EXPENSES OF HIS RELOCATION. ALTHOUGH THE INTERNAL REVENUE SERVICE INITIALLY DECLINED TO PAY ANY EXPENSES INCIDENT TO THIS TRANSFER, BY LETTER OF JULY 27, 1982, HE WAS ADVISED THAT HE WAS ENTITLED TO REIMBURSEMENT FOR "AT LEAST THE EXPENSES INCURRED IN ASSOCIATION WITH THE MOVE FROM ANCHORAGE /2/ AS FAR AS INDIANAPOLIS." HE WAS ASKED TO SUBMIT VOUCHERS FOR PROCESSING.

IN RESPONSE TO THIS LETTER, MR. NAPIER SUBMITTED TWO UNITEMIZED VOUCHERS ON MAY 12, 1983. THE FIRST, TOTALLING $10,589.38, SOUGHT EXPENSES INCIDENT TO THE SALE OF HIS RESIDENCE IN FAIRBANKS. THE SECOND VOUCHER, TOTALLING $19,383.27, APPARENTLY REPRESENTED THE AMOUNT, PLUS INTEREST THAT MR. NAPIER WAS PAID INCIDENT TO HIS TRANSFER FROM INDIANAPOLIS TO FAIRBANKS. THE SERVICE ADVISED HIM IN A JULY 1983 LETTER THAT IT COULD NOT PROCESS HIS CLAIM. IT REQUESTED THAT HE COMPLETE THE VOUCHER IN ACCORDANCE WITH THE FEDERAL TRAVEL REGULATIONS AND NOTED THAT ITEMIZATION WITH RECEIPTS AND SUPPORTING DOCUMENTATION WAS REQUIRED. ALSO, THE LETTER STATED THAT HIS ENTITLEMENTS WERE TRANSPORTATION COSTS AND PER DIEM FOR HIMSELF AND HIS DEPENDENTS TO INDIANAPOLIS, AND SHIPMENT OF HIS HOUSEHOLD GOODS TO THAT LOCATION. THAT LETTER ALSO ADVISED HIM THAT THE SERVICE WAS AWAITING A RESPONSE FROM THE GENERAL SERVICES ADMINISTRATION CONCERNING HIS ENTITLEMENT TO EXPENSES ASSOCIATED WITH THE SALE OF HIS FAIRBANKS RESIDENCE. BY LETTER DATED SEPTEMBER 16, 1983, THE SERVICE ADVISED MR. NAPIER THAT REAL ESTATE EXPENSES WERE NOT REIMBURSABLE.

MR. NAPIER DID NOT SUBMIT ANY ADDITIONAL VOUCHERS TO THE SERVICE. INSTEAD, IN A MAY 10, 1984 LETTER, HE SUBMITTED A CLAIM FOR REAL ESTATE EXPENSES TO THE CLAIMS GROUP OF THIS OFFICE. BY SETTLEMENT Z-2823690, AUGUST 4, 1984, THE CLAIMS GROUP DENIED THE CLAIM ON THE BASIS THAT THE TRANSFER WAS AT THE EMPLOYEE'S REQUEST AND NOT IN THE INTEREST OF THE UNITED STATES AS REQUIRED BY PARAGRAPH 2-1.3 OF THE FEDERAL TRAVEL REGULATIONS (SUPP. 4, AUGUST 23, 1982), INCORP. BY REF., 41 C.F.R. SECS. 101-7.003 (1983).

MR. NAPIER'S LETTER APPEALING THE SETTLEMENT OF OUR CLAIMS GROUP SPEAKS IN TERMS OF THE SERVICE'S FAILURE TO HONOR THE TRANSPORTATION AGREEMENT EXECUTED INCIDENT TO THE TRANSFER FROM INDIANAPOLIS TO FAIRBANKS. BECAUSE MR. NAPIER DOES NOT APPEAR TO UNDERSTAND EXACTLY WHAT THAT AGREEMENT AUTHORIZED, WE SHALL BEGIN OUR ANALYSIS THERE.

THE TRANSPORTATION AGREEMENT SIGNED BY MR. NAPIER REFERS TO THE EMPLOYEE'S ENTITLEMENT TO RETURN TRAVEL AS "TRANSPORTATION UNDER PUBLIC LAW 830, TO MY PLACE OF ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT FOR MYSELF, MY DEPENDENTS, AND MY HOUSEHOLD AND PERSONAL EFFECTS." THIS REFERENCE IS TO THE ACT OF SEPTEMBER 23, 1950, PUBLIC LAW 830, SECS. 2, CH. 1010, 64 STAT. 985, 986, WHICH IS CODIFIED AT 5 U.S.C. SECS. 5724(D). IT STATES THAT THE EXPENSES OF TRAVEL AND TRANSPORTATION OF AN EMPLOYEE ASSIGNED TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES /3/ SHALL BE ALLOWED TO THE SAME EXTENT AS THAT OF A NEW EMPLOYEE UNDER SECTION 5722. SUBSECTION 5722(A) STATES:

"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, AN AGENCY MAY PAY FROM ITS APPROPRIATIONS--

"(1) TRAVEL EXPENSES OF A NEW APPOINTEE AND TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT TO THE PLACE OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES; AND

"(2) THESE EXPENSES ON THE RETURN OF AN EMPLOYEE FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES."

THIS SECTION AUTHORIZES TRAVEL EXPENSES OF THE EMPLOYEE AND TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS FROM THE PLACE OF ACTUAL RESIDENCE AND FOR THEIR RETURN. IT DOES NOT PERMIT THE REIMBURSEMENT OF RELOCATION EXPENSES; THAT IS, REAL ESTATE EXPENSES, TEMPORARY QUARTERS ALLOWANCE, OR MISCELLANEOUS MOVING EXPENSES. THOSE EXPENSES ARE AUTHORIZED BY 5 U.S.C. SEC. 5724A.

THE TRANSPORTATION AGREEMENT RELIED ON BY MR. NAPIER IS IN ACCORD WITH THE PROVISIONS OF SECTION 5722, QUOTED ABOVE. THE FIRST PARAGRAPH OF THE AGREEMENT STATES:

"IN CONSIDERATION OF THE TRANSPORTATION AND SUBSISTENCE FOR MYSELF, MY DEPENDENTS AND MY HOUSEHOLD GOODS AND PERSONAL EFFECTS, FROM MY PLACE OF ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO MY POST OF DUTY NOTED BELOW, AND RETURN, I AGREE TO SERVE AT THIS POST OF DUTY FOR TWO YEARS FROM MY ARRIVAL DATE. ***"

IT IS CLEAR FROM THE ABOVE THAT SECTIONS 5724(D) AND 5722 DO NOT AUTHORIZE REAL ESTATE EXPENSES AND NOTHING IN THE TRANSPORTATION AGREEMENT PURPORTS TO DO SO EITHER. THEREFORE, WE FIND MR. NAPIER'S ENTITLEMENTS UNDER THE TRANSPORTATION AGREEMENT TO BE TRAVEL EXPENSES AND TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS FROM INDIANAPOLIS TO FAIRBANKS, AND RETURN. WE UNDERSTAND THAT HE HAS BEEN PAID FOR THESE ENTITLEMENTS AND THEY ARE NOT AN ISSUE HERE. /4/ SINCE THE AGREEMENT DOES NOT, AND INDEED CANNOT UNDER SECTIONS 5724(D) AND 5722, AUTHORIZE REAL ESTATE EXPENSES, HE IS NOT ENTITLED TO REIMBURSEMENT FOR THESE EXPENSES UNLESS AUTHORIZED BY THE SERVICE UNDER A DIFFERENT PROVISION OF LAW. L. GORDON, B-204467, JUNE 8, 1982. IN THAT CASE, WE HELD THAT THE AUTHORITY TO PAY TRAVEL AND TRANSPORTATION UNDER 5 U.S.C. SECS. 5722 TO EMPLOYEES TRANSFERRING TO POSTS OF DUTY OUTSIDE OF THE CONTINENTAL UNITED STATES IS DISTINCT FROM THE AUTHORITY TO PAY REAL ESTATE EXPENSES UNDER 5 U.S.C. SECS. 5724A.

IT WAS PRECISELY FOR THIS REASON THAT MR. NAPIER RECEIVED A SEPARATE AUTHORIZATION FOR REAL ESTATE EXPENSES INCIDENT TO HIS TRANSFER TO FAIRBANKS. THE RECORD CONTAINS AN INTERNAL REVENUE SERVICE FORM 4253, TITLED "AUTHORIZATION FOR MOVING EXPENSES" DATED JANUARY 4, 1978, WHICH AUTHORIZED REAL ESTATE EXPENSES. IT WAS PURSUANT TO THAT AUTHORIZATION, AND NOT THE TRANSPORTATION AGREEMENT, THAT HE WAS REIMBURSED REAL ESTATE AND OTHER RELOCATION EXPENSES. THUS, WHILE THE TRANSPORTATION AGREEMENT BOUND THE AGENCY TO PAY HIS TRAVEL AND TRANSPORTATION COSTS BACK TO INDIANAPOLIS, HIS ENTITLEMENT TO REAL ESTATE EXPENSES WAS DEPENDENT UPON A SEPARATE AUTHORIZATION BY THE SERVICE. SUCH AN AUTHORIZATION IS REQUIRED TO BE BASED UPON AN EMPLOYEE'S TRANSFER (NOT APPOINTMENT OR SEPARATION) AND UPON A FINDING THAT THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT. SEE 5 U.S.C. SECS. 5724(H) AND FEDERAL TRAVEL REGULATIONS, PARAGRAPH 2-1.3, SUPRA.

IT IS CLEAR THAT THE SERVICE FOUND THAT THE TRANSFER FROM FAIRBANKS TO PORTLAND WAS NOT IN THE GOVERNMENT'S INTEREST. WE FIND NO BASIS TO DISAGREE WITH THE SERVICE'S DETERMINATION. A STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, DATED JUNE 12, 1981, EFFECTING MR. NAPIER'S TRANSFER FROM FAIRBANKS TO PORTLAND, MAINE, STATES "AT EMPLOYEE REQUEST. MOVING EXPENSES ARE NOT AUTHORIZED." THIS REPRESENTS A DETERMINATION THAT THE TRANSFER IS NOT IN THE INTEREST OF THE GOVERNMENT BUT IS RATHER AT THE EMPLOYEE'S REQUEST. WE HAVE PREVIOUSLY REFUSED TO DISTURB A DETERMINATION THAT A TRANSFER WAS NOT IN THE INTEREST OF THE GOVERNMENT IN A CASE WHERE THE EMPLOYEE ACCEPTED A DOWNGRADE IN ORDER TO FACILITATE A TRANSFER FOR PERSONAL REASONS. B-174997, APRIL 21, 1972. ARE UNABLE TO FIND ANY BASIS TO DISTURB THE AGENCY DETERMINATION IN THIS CASE. FURTHER, EVEN IF WE WERE INCLINED OTHERWISE, REIMBURSEMENT TO MR. NAPIER WOULD BE DEFEATED SINCE HE RESIGNED HIS POSITION EFFECTIVE JUNE 25, 1982, LESS THAN A YEAR AFTER HIS TRANSFER FROM FAIRBANKS TO PORTLAND, MAINE. SECTION 5724(I) PROVIDES THAT AN AGENCY MAY RECOVER THE EXPENSES PAID UNDER SECTIONS 5724 AND 5724A IF THE EMPLOYEE FAILS TO COMPLETE 12 MONTHS'GOVERNMENT SERVICE AFTER HIS TRANSFER. THUS, EVEN HAD MR. NAPIER BEEN AUTHORIZED REAL ESTATE EXPENSES, THE AMOUNT INVOLVED WOULD HAVE BEEN RECOVERABLE BY THE SERVICE.

FOR THE REASONS STATED ABOVE, WE SUSTAIN THE CLAIMS GROUP DENIAL OF MR. NAPIER'S CLAIM.

/1/ MR. NAPIER IS APPEALING FROM A SETTLEMENT OF THE CLAIMS GROUP, GENERAL ACCOUNTING OFFICE, DENYING HIS CLAIM FOR THESE EXPENSES.

/2/THE REFERENCE IS APPARENTLY TO THE ANCHORAGE DISTRICT WHICH INCLUDES THE FAIRBANKS OFFICE. /3/ SECTION 5721(3) DEFINES "CONTINENTAL UNITED STATES" AS EXCLUDING ALASKA AND HAWAII.

/4/ WE HAVE BEEN INFORMALLY ADVISED BY THE WESTERN REGION OFFICE, INTERNAL REVENUE SERVICE, THAT MR. NAPIER WAS PAID $1,354.68 IN 1983 REPRESENTING MILEAGE AND PER DIEM FOR HIS RETURN TRIP FROM FAIRBANKS. THE RECORD SUGGESTS AND THE SERVICE HAS CONFIRMED THAT HE DISPOSED OF THE MAJORITY OF HIS HOUSEHOLD EFFECTS PRIOR TO DEPARTING ALASKA.