B-207263, APR 14, 1983

B-207263, APR 14, 1983

DIGEST: EMPLOYEE WHO WAS TRANSFERRED TO NEW OFFICIAL DUTY STATION DID NOT TRANSPORT HIS HOUSEHOLD GOODS FROM THE OLD STATION UNTIL NEARLY 1 YEAR AFTER HIS TRANSFER, WHEN HE ACCEPTED A PRIVATE SECTOR POSITION IN ANOTHER LOCATION. EMPLOYEE IS ENTITLED TO TRANSPORTATION EXPENSES SINCE HE REMAINED IN GOVERNMENT SERVICE FOR 12 MONTHS AFTER THE EFFECTIVE DATE OF HIS TRANSFER, AND TRANSPORTATION OF HIS GOODS WAS BEGUN WITHIN THE 2-YEAR LIMITATION PERIOD SPECIFIED BY PARAGRAPH 2 1.5A(2) OF THE FEDERAL TRAVEL REGULATIONS. REIMBURSEMENT OF TRANSPORTATION EXPENSES TO A PLACE OTHER THAN THE NEW DUTY STATION IS AUTHORIZED BY FTR PARA. 2-8.2D, WITH THE COST LIMITED TO THE CONSTRUCTIVE COST OF SHIPPING THE EMPLOYEE'S GOODS TO THE NEW STATION.

WILLIAM H. SIMON, JR., - TRANSPORTATION OF HOUSEHOLD GOODS:

THE ISSUE INVOLVED IN THIS DECISION IS WHETHER A TRANSFERRED EMPLOYEE, WHO COMPLETED HIS REQUIRED SERVICE AT HIS NEW DUTY STATION, IS ENTITLED TO REIMBURSEMENT FOR TRANSPORTATION OF HIS HOUSEHOLD EFFECTS TO A LOCATION OTHER THAN HIS NEW DUTY STATION, SHORTLY BEFORE HE ACCEPTED A PRIVATE SECTOR JOB. FOR THE REASONS STATED BELOW, WE HOLD THAT THE EMPLOYEE MAY BE REIMBURSED FOR TRANSPORTATION OF HIS HOUSEHOLD GOODS SINCE HE REMAINED IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER, AND THE TRANSPORTATION OF THE GOODS WAS BEGUN WITHIN 2 YEARS OF THE TRANSFER DATE.

THIS DECISION IS IN RESPONSE TO A REQUEST FROM MS. B.A.FRY, AN AUTHORIZED CERTIFYING OFFICER WITH THE INTERNAL REVENUE SERVICE (IRS) IN ATLANTA, GEORGIA, CONCERNING THE PROPRIETY OF REIMBURSING MR. WILLIAM H. SIMON, JR., FOR THE COST OF TRANSPORTING HIS HOUSEHOLD GOODS FROM CINCINNATI, OHIO, TO ATLANTA, GEORGIA, INCIDENT TO HIS TRANSFER TO ATLANTA. MR. SIMON, AN EMPLOYEE OF THE IRS, WAS TRANSFERRED FROM CINCINNATI TO ATLANTA EFFECTIVE FEBRUARY 2, 1981. MR. SIMON WAS AUTHORIZED RELOCATION EXPENSES, INCLUDING THE COST OF TRANSPORTING HIS HOUSEHOLD GOODS TO HIS NEW DUTY STATION. HE REPORTED FOR DUTY AT THE NEW STATION AS SCHEDULED ON FEBRUARY 2, 1981, BUT HIS FAMILY WAS UNABLE TO JOIN HIM IN ATLANTA AT THAT TIME SINCE THE SIMONS' CINCINNATI HOME HAD NOT YET BEEN SOLD. IN JUNE 1981, MR. SIMON FOUND A BUYER FOR THE CINCINNATI RESIDENCE, AND HIS FAMILY THEN JOINED HIM IN ATLANTA, OCCUPYING TEMPORARY QUARTERS FOR A PERIOD OF 60 DAYS. IN AUGUST 1981, HOWEVER, THE CONTRACT FOR THE SALE OF THE SIMONS' HOUSE FELL THROUGH, AND THE FAMILY RETURNED TO OHIO. MR. SIMON REMAINED IN ATLANTA ALONE, WITH THE INTENT OF MOVING HIS FAMILY BACK TO THAT CITY AS SOON AS THE CINCINNATI RESIDENCE COULD BE SOLD.

ON JANUARY 13, 1982, MR. SIMON NOTIFIED IRS THAT HE PLANNED TO RESIGN FROM GOVERNMENT SERVICE, EFFECTIVE FEBRUARY 5, 1982, TO ACCEPT A PRIVATE SECTOR POSITION IN TAMPA, FLORIDA. ON DECEMBER 29, 1981, PRIOR TO GIVING NOTICE OF HIS RESIGNATION, MR. SIMON MADE ARRANGEMENTS FOR A COMMERCIAL MOVING FIRM TO TRANSPORT THE FAMILY'S HOUSEHOLD GOODS FROM CINCINNATI TO TAMPA. THE TRUCK CARRYING THE GOODS LEFT CINCINNATI ON JANUARY 27, 1982, AND TRAVELED TO TAMPA VIA ATLANTA IN ORDER TO PICK UP THE ADDITIONAL FURNISHINGS FROM MR. SIMON'S APARTMENT IN THAT CITY. THE HOUSEHOLD EFFECTS WERE DELIVERED IN TAMPA ON FEBRUARY 1, 1982.

THE TOTAL COST OF SHIPPING THE SIMONS' HOUSEHOLD GOODS FROM OHIO TO FLORIDA WAS $4,652.81. ON FEBRUARY 5, 1982, MR. SIMON SUBMITTED A CLAIM TO THE IRS FOR $2,992.00 FOR THE CONSTRUCTIVE COST OF TRANSPORTING THE FAMILY'S GOODS FROM CINCINNATI TO ATLANTA, AND FOR $200 FOR THE MISCELLANEOUS EXPENSE ALLOWANCE. THE MISCELLANEOUS EXPENSE ALLOWANCE HAS BEEN PAID. MR. SIMON MAINTAINS THAT HE SHOULD BE REIMBURSED FOR THE TRANSPORTATION EXPENSES SINCE HE FULLY INTENDED TO RELOCATE HIS FAMILY TO ATLANTA UPON HIS TRANSFER, AND WAS PREVENTED FROM DOING SO ONLY BECAUSE HE COULD NOT SELL THE FAMILY'S OHIO HOME PROMPTLY. IN ADDITION, MR. SIMON ASSERTS THAT HE IS ENTITLED TO REIMBURSEMENT SINCE HE DID WORK IN ATLANTA FOR OVER 12 MONTHS, FROM FEBRUARY 2, 1981, TO FEBRUARY 5, 1982.

THE PAYMENT OF TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES OF TRANSFERRED GOVERNMENT EMPLOYEES IS AUTHORIZED UNDER 5 U.S.C. SECS. 5724 AND 5724A (1976), AS IMPLEMENTED BY THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (MAY 1973) (FTR). THESE REGULATIONS PROVIDE AT PARAGRAPH 2-1.3 AS FOLLOWS:

"TRAVEL COVERED. WHEN CHANGE OF OFFICIAL STATION OR OTHER ACTION DESCRIBED BELOW IS AUTHORIZED OR APPROVED BY SUCH OFFICIAL OR OFFICIALS AS THE HEAD OF THE AGENCY MAY DESIGNATE, TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES AS PROVIDED HEREIN ARE PAYABLE IN THE CASE OF (A) TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY, PROVIDED THAT: THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT AND IS NOT PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST; THE TRANSFER IS TO A NEW OFFICIAL STATION WHICH IS AT LEAST 10 MILES DISTANT FROM THE OLD OFFICIAL STATION; ***."

PARAGRAPH 2-1.5A(1)(A) OF THE FTR FURTHER PROVIDES THAT THE TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES TRANSFERRED BETWEEN OFFICIAL DUTY STATIONS WITHIN THE CONTERMINOUS UNITED STATES:

"*** SHALL NOT BE ALLOWED UNLESS AND UNTIL

THE EMPLOYEE SELECTED FOR SUCH TRANSFER AGREES IN WRITING TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER, ***."

PRIOR TO MR. SIMON'S TRANSFER IN THIS CASE, THE IRS MADE A DETERMINATION, AS REQUIRED BY FTR PARA. 2-1.3, THAT HIS TRANSFER WAS IN THE GOVERNMENT'S INTEREST, AND ON THAT BASIS PROPERLY AUTHORIZED PAYMENT OF MR. SIMON'S RELOCATION EXPENSES. THEREAFTER, ON FEBRUARY 2, 1981, MR. SIMON BEGAN TO WORK FOR THE IRS IN ATLANTA. HE REMAINED THERE UNTIL FEBRUARY 5, 1982, WHEN HE LEFT HIS GOVERNMENT JOB TO ACCEPT THE PROVATE SECTOR POSITION IN TAMPA.

THE CERTIFYING OFFICER QUESTIONS MR. SIMON'S ENTITLEMENT TO REIMBURSEMENT FOR THE TRANSPORTATION OF HIS HOUSEHOLD GOODS. IN SUPPORT OF THIS POSITION, THE CERTIFYING OFFICER CITES OUR DECISION, B-169215, MARCH 30, 1970. THE DENIAL OF REIMBURSEMENT FOR THE COST OF TRANSPORTING THE EMPLOYEE'S HOUSEHOLD GOODS IN THAT CASE WAS PREDICATED, IN PART, ON THE FACT THAT EVEN THOUGH THE TRANSFER OF DUTY STATIONS WAS BETWEEN NEW YORK CITY AND BOSTON, THE SHIPMENT OF THE HOUSEHOLD GOODS WAS WITHIN THE SAME TOWN IN THE NEW YORK METROPOLITAN AREA. HOWEVER, THE DECISION WAS BASED UPON AN INTERPRETATION OF A PREDECESSOR OF THE CURRENT REGULATIONS WHICH WAS STRUCTURED VERY DIFFERENTLY FROM THE REGULATIONS NOW IN EFFECT. THE CURRENT VERSION OF THE FTR CANNOT BE READ TO REACH THE SAME RESULT.

MR. SIMON REMAINED IN GOVERNMENT SERVICE FOR 12 MONTHS AND 3 DAYS AFTER HIS TRANSFER. BY DOING SO, HE FULFILLED THE SERVICE OBLIGATION UNDER HIS AGREEMENT, AND, THUS, EARNED THE RIGHT TO BE REIMBURSED FOR TRANSPORTATION OF HIS HOUSEHOLD GOODS TO ATLANTA, ASSUMING THAT SUCH REIMBURSEMENT WAS NOT OTHERWISE PROHIBITED. THE FACT THAT MR. SIMON MADE PLANS TO LEAVE HIS GOVERNMENT JOB AFTER HE HAD COMPLETED HIS REQUIRED YEAR OF SERVICE DOES NOT AFFECT HIS ENTITLEMENT TO REIMBURSEMENT FOR TRANSPORTATION OF HIS HOUSEHOLD GOODS TO ATLANTA, EVEN THOUGH SUCH TRANSPORTATION DID NOT BEGIN UNTIL AFTER HE HAD MADE PLANS TO LEAVE THE GOVERNMENT'S EMPLOY. WORKING IN ATLANTA FOR 1 YEAR, MR. SIMON FULFILLED ALL OBLIGATIONS IMPOSED ON HIM BY FEDERAL REGULATIONS, AND THEREBY GAINED ENTITLEMENT TO HAVE HIS HOUSEHOLD GOODS TRANSPORTED FROM CINCINNATI TO ATLANTA.

PARAGRAPH 2-1.5A(2) OF THE FTR IMPOSES AN ADDITIONAL TIME RESTRICTION ON EMPLOYEES' ENTITLEMENT TO RELOCATION EXPENSES IN CONNECTION WITH A TRANSFER OF OFFICIAL DUTY STATION. ACCORDING TO THAT PARAGRAPH, THE TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD GOODS MUST BEGIN WITHIN 2 YEARS FROM THE EFFECTIVE DATE OF THE EMPLOYEE'S TRANSFER. PETER E. DONNELLY, B-188292, JULY 8, 1977. THE EFFECTIVE DATE OF MR. SIMON'S TRANSFER WAS FEBRUARY 2, 1981, WHEN HE FIRST REPORTED FOR DUTY AT HIS NEW STATION. SEE FTR JANUARY 27, 1982, WHICH WAS WITHIN THE 2-YEAR LIMITATION PERIOD SPECIFIED BY FTR PARA. 2 1.5A(2). THEREFORE, REIMBURSEMENT OF TRANSPORTATION EXPENSES IS NOT BARRED ON GROUNDS OF TIMELINESS.

PARAGRAPH 2-8.2D OF THE FTR FURTHER PROVIDES THAT A TRANSFERRED EMPLOYEE MAY BE REIMBURSED FOR SHIPMENT OF HIS HOUSEHOLD EFFECTS, "WHETHER THE POINT OF DESTINATION IS THE NEW OFFICIAL STATION OR SOME OTHER POINT SELECTED BY THE EMPLOYEE." IN ANY CASE, HOWEVER, THE TOTAL AMOUNT WHICH MAY BE PAID OR REIMBURSED BY THE GOVERNMENT IS NOT TO EXCEED THE COST OF TRANSPORTING THE EMPLOYEE'S GOODS IN ONE LOT BY THE MOST ECONOMICAL ROUTE FROM HIS LAST DUTY STATION (OR HIS ACTUAL PLACE OF RESIDENCE) TO THE NEW STATION. SEE STANLEY H. FRETWELL, B-186185, NOVEMBER 15, 1976.

UNDER THE REGULATION STATED ABOVE, MR. SIMON WAS NOT REQUIRED TO HAVE HIS HOUSEHOLD GOODS SHIPPED TO HIS NEW DUTY STATION IN ATLANTA. INSTEAD, HE HAD THE OPTION TO HAVE HIS GOODS SHIPPED TO SOME OTHER LOCATION, AND WAS ENTITLED TO REIMBURSEMENT FOR SUCH TRANSPORTATION, NOT TO EXCEED THE CONSTRUCTIVE COST OF SHIPMENT TO ATLANTA. RALPH M. KOONTZ, B-186338, DECEMBER 7, 1978.

ACCORDINGLY, WHEN MR. SIMON SHIPPED HIS HOUSEHOLD GOODS TO TAMPA ON JANUARY 27, 1982, HE WAS ENTITLED TO REIMBURSEMENT FOR THE CONSTRUCTIVE COST OF SHIPPING HIS GOODS FROM CINCINNATI TO ATLANTA. THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IN THIS AMOUNT, IF OTHERWISE CORRECT.