Matter of: John C. Eastman -Reconsideration File: B-246538.4 Date: March 18, 1994

Matter of: John C. Eastman -Reconsideration File: B-246538.4 Date: March 18, 1994

CIVILIAN PERSONNEL Relocation Residence transaction expenses Reimbursement Eligibility Two years after transferring from an intermittent schedule C position in California to a schedule C position in Washington, D.C., an employee filed a claim for relocation benefits. His agency denied the claim because there had been no authorization of such benefits and no record of a determination at the time he received the Washington appointment that it was a transfer in the interest of the government for which relocation benefits would be paid. The denial is sustained. The schedule C position to which the employee transferred was neither part of a merit promotion plan nor competitively selected, and, thus, the transfer was not one which may be categorically considered to carry with it relocation benefits. Therefore, without clear evidence of such a specific determination in that regard by the agency, the claim is too doubtful to allow. John C. Eastman, B-246538.2, Jan. 27, 1993, affirmed.

DECISION

BACKGROUND[2]

The record shows that Mr. Eastman was appointed to an intermittent, schedule C, GS-11 position in California on June 23, 1987, which he held for about 2 1/2 months until, on September 9, 1987, he was appointed to the full-time, GM-14, schedule C position of Public Affairs Officer in Washington. When Mr. Eastman received his appointment to the Public Affairs Officer position in Washington, the agency did not issue written travel orders to him providing for a transfer from California to Washington and authorizing relocation benefits, nor did it require that he sign a written 12-month service agreement. About 2 years after Mr. Eastman moved to Washington, he states, he learned he may have been eligible for such benefits and submitted a claim to the Commission amounting to in excess of $18,000. The Commission denied the claim.

Mr. Eastman appealed to our Claims Group, which determined that Mr. Eastman was an employee for purposes of the statute that authorizes relocation benefits for civilian employees, 5 U.S.C. Sec. 5724 (1988), and authorized payment on his claim. The Commission requested further consideration of that settlement and, in John Eastman, B-246538.2, Jan. 27, 1993, we reversed on the grounds that the agency had issued no travel orders or other authorization for reimbursement of relocation expenses nor had it made a determination at the time of Mr. Eastman's appointment that his transfer was in the interest of the government and not primarily for his own benefit or convenience, as required by law.

In his request for reconsideration, Mr. Eastman asserts that his transfer was in the interest of the government, and that relocation benefits may be paid to an employee even when there are no written travel orders and a signed service agreement if the employee otherwise meets all the require-
ments to receive those benefits.[3]

OPINION

The statutory authority for payment of travel, transportation and
relocation expenses of an employee transferred in the interests of the
government from one official station to another for permanent duty is
found in 5 U.S.C. Secs. 5724 and 5724a. Such allowances are payable
under regulations prescribed in the Federal Travel Regulation (FTR), 41
C.F.R. Chapter 302[4] "when the head of the agency concerned or his
designee authorizes or approves" them. 5 U.S.C. Sec. 5724(a). Payment is
authorized only after the employee agrees in writing to remain in the
government for 12 months after the transfer, and the allowances are not
payable if the transfer is made primarily for the convenience or benefit
of the employee, or at his request. 5 U.S.C. Secs. 5724(h) and (i).

The implementing FTR provisions provide that when it is determined that a
relocation will be authorized at government expense, a written travel
authorization shall be issued to the employee before he or she reports to
the new official station, and such travel authorization shall indicate
the specific allowances which are authorized as provided under the
regulation. FTR Sec. 302-1.3(c). The regulations also provide that the
travel authorization is to specify clearly the purpose of the travel and
it is to include cost estimates which the agency shall use to obligate
the necessary funds. FTR Sec. 301-1.102(c) and (d).

Thus, travel orders are not a mere formality, but are generally
considered the authorizing document indicating that the appropriate
determinations have been made by the agency, as required by the statutes
and regulations, and stating the allowances provided.

Mr. Eastman points out that we have held that in certain situations an
employee may be paid relocation benefits although he was not issued a
formally approved travel order or a signed service agreement if the
employee continued in the federal service for at least 12 months
following the transfer, as he did. However, in these cases, as explained
below, other facts or documents were present to establish that a transfer
was authorized or intended by the agency which was of a type considered
to be in the interest of the government.

The general rule we apply in this type of case is that the determination
of whether an employee's transfer is in the interest of the government
and not primarily for the convenience of the employee is a matter of
discretion with the agency, and we will not overturn such a determination
unless it is arbitrary, capricious or clearly erroneous under the facts
of the case. Julia R. Lovorn, 67 Comp.Gen. 392 (1988).

Our cases discuss a number of factors relevant to this determination. For
example, generally, in the absence of agency regulations to the contrary,
when an employee is actively recruited to a position with promotion
potential as part of a merit selection plan, the transfer will be
considered in the interest of the government. Bernard J. Phillips,
B-206624, Aug. 16, 1982. See also Eugene R. Platt, 59 Comp.Gen. 699
(1980). Compare, John J. Hertzke, B-205958, July 13, 1982; and
Julie-Anna T. Tom, B-206011, May 3, 1982. We also recognize, however,
that an agency has discretion to determine and make known in offering a
position, that it will not pay relocation allowances incident to
filling the position. See Paul J. Walski, B-190487, Feb. 23, 1979. See
also, Eugene R. Platt -Reconsideration, 61 Comp.Gen. 156, 162 (1981).

Mr. Eastman argues that his move to Washington involved a promotion in
grade, and that he was recruited for the position by the agency's
Acting Staff Director, and thus he is covered by the rule set out in the
1980 Platt decision, supra. We note, however, that Mr. Eastman was not
appointed under a merit selection plan; he moved between two schedule C
positions, which are positions excepted from the merit selection
requirements of the competitive service. See 5 C.F.R. Part 6. Therefore,
we do not believe that his appointment can be considered as categorically
meeting the statutory and regulatory requirements to authorize reloca-
tion allowances without clear evidence that the agency made the required
determinations and intended that such allowances be paid. As noted
previously, in the absence of any limiting regulations, agencies have
wide discretion to determine whether a transfer is in the interest of the
government, and an agency is not required to pay relocation benefits
incident to all transfers. Jean Jacobson, B-236651, Sept. 21, 1990; Paul
J. Walski, supra; and Platt -Reconsideration, supra. As the cases
described above show, each determination necessarily must be made on a
case-by-case basis; the presence of one or more factors cited in our
decisions does not entitle an employee to relocation benefits as a matter
of law.

Mr. Eastman also argues that the Acting Staff Director at the time of his
appointment had determined that his transfer was in the interest of the
government, but that she did not authorize relocation benefits because
the Commission's Deputy Staff Director advised her that it was not
permissible. Mr. Eastman argues that such advice was erroneous. At Mr.
Eastman's request, the former Acting Staff Director, who had since left
the Commission, sent the then current Acting Staff Director a letter
dated December 22, 1989, confirming this. Her letter did not state what
the Deputy Staff Director's objections were, and in response to our
inquiry, the Commission's Solicitor has advised us that there is no
written record of the former Acting Staff Director's request to the
Deputy Staff Director or of his reply. Further, the Solicitor noted
that, because the position was established under schedule C, there was no
formal job announcement, which would have stated whether relocation
benefits were being offered with the job. Also, neither the Standard
Form (SF 50) reflecting Mr. Eastman's appointment nor any other document
we have been furnished authorizes relocation benefits for him, and the
Commission subsequently has refused to approve such benefits.

As noted previously, the schedule C position to which Mr. Eastman was
appointed was not competitively selected under a merit promotion program,
and there are no contemporaneous memoranda, travel orders or other
documents establishing a clear intent to authorize relocation benefits.
While it is unfortunate that a written record was not made at the time of
Mr. Eastman's move to Washington documenting the reason relocation
benefits were not authorized at that time, and although the Acting Staff
Director may have told him she would authorize such benefits if agency
regulations permitted, the fact remains that she did not do so,
apparently based on advice she received that the agency would not permit
it. While the basis for the advice is not stated by the agency, we note
that Mr. Eastman served only 2 1/2 months in the GS-11 intermittent
position in California before his appointment as the Commission's GM-14
Public Affairs Officer in Washington. It may be that, in this situation,
responsible agency personnel considered the California position as only
temporary pending arrangements for the Washington position. In that
case, payment of relocation expenses may be barred by the longstanding
rule that an employee may not be assigned to a duty station at which he
is not expected to remain for an extended period of time for the purpose
of providing entitlement to travel and relocation benefits. 60 Comp.
Gen. 569 at 572 (1981), and cases cited therein.[5]

Further, the agency also may have considered the likely availability of
other qualified candidates in the Washington area and made a
determination that offering reimbursement for relocation benefits at a
substantial cost to the agency, would be unnecessary to fill the position
eventually filled by Mr. Eastman. We note that relocation benefits
apparently were not a determinative factor in Mr. Eastman's acceptance of
the position since he moved to Washington without any written
authorization or firm promise of such benefits, and he did not file a
claim with the agency for such benefits until 2 years later.

In circumstances such as this where a claim admits of substantial doubt,
we follow the longstanding rule that the accounting officers of the
government should reject or disallow claims as to which they believe
there may be a substantial defense in law or as to the validity of which
they are in doubt, leaving the claimant to pursue his claims in a court
of competent jurisdiction, which is better equipped to resolve such
claims. See 49 Comp.Gen. 656, 662 (1970); 50 Comp.Gen. 434, 441
(1970); and decisions cited therein. Accordingly, the denial of Mr.
Eastman's claim is affirmed.

1. Upon receipt of Mr. Eastman's request for reconsideration, we requested and were furnished the Commission's views on the request. Subsequently, Mr. Eastman filed suit on this claim in the U.S. Court of Federal Claims, No. 93-562C, filed Sept. 9, 1993. The court granted the plaintiff's motion for a stay of proceedings in the suit on Feb. 1, 1994, pending completion of our action on Mr. Eastman's request for reconsideration of our Jan. 27, 1993 decision.

2. The background of this case is more fully stated in our prior decision. Only matters directly relevant to the present request for reconsideration are being stated here.

3. He also asserts that his status in California as an intermittent employee would not preclude him from receiving relocation benefits. In our prior decision, we found it unnecessary to decide this issue, and because of the similar grounds on which we affirm that decision, we also find it unnecessary to decide that issue here.

4. As they apply to this case, these regulations are substantially the same as the provisions they superseded in 1989 previously published as FPMR 101-7, GSA Bulletin FPMR A-40.

5. At the time of Mr. Eastman's appointment, there was no authority to reimburse a new employee (with exceptions not applicable in Mr. Eastman's case) for the costs of travel and transportation incurred in reporting to his initial permanent duty station. FTR, para. 2-1.5e(b), FPMR 101-7, Bulletin A-40, eff. Nov. 1, 1981. See also 53 Comp.Gen. 313 (1973).