B-165342, OCTOBER 22, 1968, 48 COMP. GEN. 227

B-165342, OCTOBER 22, 1968, 48 COMP. GEN. 227

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - TRANSFER WITHIN CORPORATE LIMITS OF CITY THE PAYMENT OF THE RELOCATION EXPENSES PROVIDED IN 5 U.S.C. 5724A TO EMPLOYEES WHO ARE TRANSFERRED BETWEEN POSTS OF DUTY 35 MILES APART WITHIN THE CORPORATE LIMITS OF THE SAME CITY--- HOUSTON, TEXAS--- IS PRECLUDED UNDER SECTION 1.3A OF THE BUREAU OF THE BUDGET CIRCULAR NO. A 56, WHICH AUTHORIZES TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES ONLY WHEN A TRANSFER IS BETWEEN "OFFICIAL STATIONS" AS THE TERM IS DEFINED IN SECTION 1.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND THE SECTION PRESCRIBING THAT A DESIGNATED POST OF DUTY AND OFFICIAL STATION ARE ONE AND THE SAME, AN AREA THAT IS CIRCUMSCRIBED BY THE CORPORATE LIMITS OF THE CITY, THERE IS NO AUTHORITY FOR THE PAYMENT OF RELOCATION EXPENSES TO THE EMPLOYEES TRANSFERRED WITHIN THE CORPORATE LIMITS OF HOUSTON.

TO THE SECRETARY OF TRANSPORTATION, OCTOBER 22, 1968:

THIS IS IN REPLY TO YOUR LETTER OF SEPTEMBER 26, 1968, IN WHICH YOU REQUEST ADVICE AS TO THE APPLICABILITY OF THE REQUIREMENTS CONTAINED IN SECTION 1.3A OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, TO 45 EMPLOYEES OF THE DEPARTMENT OF TRANSPORTATION WHO WERE TRANSFERRED FROM HOUSTON INTERNATIONAL AIRPORT TO HOUSTON INTERCONTINENTAL AIRPORT 35 MILES AWAY, BOTH WITHIN THE CORPORATE LIMITS OF HOUSTON, TEXAS.

IN THIS REGARD SECTION 1.3A OF BUREAU OF THE BUDGET CIRCULAR NO. A 56, TRANSMITTAL MEMORANDUM NO. 1, DATED APRIL 7, 1967, PROVIDES IN PERTINENT PART AS FOLLOWS:

THE TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES MAY BE AUTHORIZED IN CONNECTION WITH A TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER ONLY WHEN THE TRANSFER IS BETWEEN OFFICIAL STATIONS, AS THE TERM IS DEFINED IN SECTION 1.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THUS, THESE EXPENSES AND ALLOWANCES MAY NOT BE AUTHORIZED WHEN THE OLD AND NEW POSTS OF DUTY ARE LOCATED WITHIN THE CORPORATE LIMITS OF THE SAME CITY OR TOWN OR ARE BOTH WITHIN ANOTHER AREA DESCRIBED IN SAID SECTION 1.5.

WHEN THE OLD AND NEW POSTS OF DUTY ARE WITHIN DIFFERENT OFFICIAL STATIONS BUT ARE ONLY A SHORT DISTANCE APART AND WITHIN THE SAME GENERAL LOCAL OR METROPOLITAN AREA, THE TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES IN CONNECTION WITH THE EMPLOYEE'S RELOCATION OF HIS RESIDENCE MAY BE AUTHORIZED ONLY WHEN THE AGENCY DETERMINES THAT THE RELOCATION WAS INCIDENT TO THE TRANSFER OF OFFICIAL STATION. SUCH DETERMINATION SHOULD TAKE INTO CONSIDERATION SUCH FACTORS AS COMMUTING TIME AND DISTANCE BETWEEN THE EMPLOYEE'S RESIDENCE AT THE TIME OF NOTIFICATION OF TRANSFER AND HIS OLD AND NEW POSTS OF DUTY AS WELL AS THE COMMUTING TIME AND DISTANCE BETWEEN A PROPOSED NEW RESIDENCE AND THE NEW POST OF DUTY. ORDINARILY, A RELOCATION OF RESIDENCE SHOULD NOT BE CONSIDERED AS INCIDENT TO A TRANSFER OF OFFICIAL STATION UNLESS THE ONE-WAY COMMUTING DISTANCE FROM THE OLD RESIDENCE TO THE NEW POST OF DUTY IS AT LEAST 10 MILES GREATER THAN FROM THE OLD RESIDENCE TO THE OLD POST OF DUTY. 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.

ATTACHED TO YOUR LETTER IS A MEMORANDUM FROM YOUR GENERAL COUNSEL SETTING FORTH THE VIEW THAT SECTION 1.3A, ABOVE, IS NOT FAIR AND JUST IN THAT THE EMPLOYEES CONCERNED WHO HAVE BEEN TRANSFERRED FROM HOUSTON INTERNATION AIRPORT TO A NEW POST OF DUTY 35 MILES DISTANT AT HOUSTON INTERNATIONAL AIRPORT BUT ALL WITHIN THE CORPORATE LIMITS OF HOUSTON ARE DENIED THE STATUTORILY AUTHORIZED RELOCATION ALLOWANCES. HE CONSIDERS THAT THEY ARE, IN EFFECT, VICTIMS OF THE EXPANSION OF THE CITY OF HOUSTON'S CORPORATE LIMITS TO INCLUDE THE NEW AIRPORT. HE FURTHER EXPRESSES THE VIEW THAT THE DEFINITION OF "OFFICIAL STATION" AS SET FORTH IN SECTION 1.3A, ABOVE, AND WHICH WAS INCORPORATED BY REFERENCE FROM SECTION 1.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-7, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, HAS NO LOGICAL RELATION TO RELOCATION ALLOWANCES. IN HIS OPINION THE GENERAL RULE IN SECTION 1.3A, ABOVE, THAT THE ALLOWANCES ARE PAYABLE IF THE POSTS ARE AT LEAST 10 MILES DISTANT WHERE THEY ARE WITHIN DIFFERENT OFFICIAL STATIONS BUT THE SAME METROPOLITAN AREA SHOULD BE APPLIED TO ALL CASES.

PAYMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES OF TRANSFERRED GOVERNMENT EMPLOYEES ARE PROVIDED IN 5 U.S.C. 5724 AS FOLLOWS:

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND WHEN THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE AUTHORIZES OR APPROVES, THE AGENCY SHALL PAY FROM GOVERNMENT FUNDS---

(1) THE TRAVEL EXPENSES OF AN EMPLOYEE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION OR AGENCY TO ANOTHER FOR PERMANENT DUTY, AND THE TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY, OR A COMMUTATION THEREOF UNDER SECTION 5704 OF THIS TITLE; AND

(2) THE EXPENSES OF TRANSPORTING, PACKING, CRATING, TEMPORARILY STORING, DRAYING, AND UNPACKING HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS NOT IN EXCESS OF 11,000 POUNDS NET WEIGHT. PROVISION FOR PAYMENT OF THE NEW RELOCATION ALLOWANCES ARE PRESCRIBED IN 5 U.S.C. 5724A AS OLLOWS:

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724 (A) OF THIS TITLE * * *.

THE AUTHORITY OF THE PRESIDENT TO PRESCRIBE THE ABOVE REGULATIONS WAS DELEGATED TO THE DIRECTOR, BUREAU OF THE BUDGET BY EXECUTIVE ORDER NO. 11230, JUNE 28, 1965, AS AMENDED BY EXECUTIVE ORDER NO. 11290, JULY 21, 1966.

THE BENEFITS GRANTED UNDER THE CONTROLLING STATUTORY PROVISIONS ARE CONDITIONED UPON THE PROMULGATION OF APPROPRIATE REGULATIONS AND ARE PAYABLE ONLY TO THE EXTENT AUTHORIZED AND IN ACCORDANCE WITH THE TERMS OF SUCH REGULATIONS. PURSUANT TO THE FOREGOING AUTHORITY, BUREAU OF THE BUDGET CIRCULAR NO. A-56, AND TRANSMITTAL MEMORANDUM NO. 1, DATED APRIL 7, 1967, AMENDING SECTION 1.3 WERE ISSUED. UNDER SECTION 1.3 TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES MAY BE AUTHORIZED ONLY WHEN THE TRANSFER IS BETWEEN "OFFICIAL STATIONS" AS THE TERM IS DEFINED IN SECTION 1.5 OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH PROVIDES AS FOLLOWS:

OFFICIAL STATION--- POST OF DUTY.--- DESIGNATED POST OF DUTY AND OFFICIAL STATION MEAN ONE AND THE SAME, THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE OFFICER OR EMPLOYEE IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED.

THE APPLICATION OF THE FOREGOING REGULATION TO THE TRANSPORTATION OF HOUSEHOLD EFFECTS IS NOT A RECENT INNOVATION AS HAS BEEN URGED. IT HAS BEEN THE ESTABLISHED RULE FOR YEARS THAT THE MOVEMENT OF HOUSEHOLD EFFECTS FROM ONE PLACE TO ANOTHER WITHIN THE SAME CITY, INCLUDING MOVEMENT FROM STORAGE TO PLACE OF RESIDENCE, DOES NOT CONSTITUTE THE SHIPMENT OF HOUSEHOLD EFFECTS SUCH AS CONTEMPLATED BY LAW AND REGULATIONS BUT IS A PERSONAL EXPENSE NOT PAYABLE FROM APPROPRIATED FUNDS. SEE 9 COMP. GEN. 377; 13 ID. 210; 26 ID. 952; 27 ID. 363.

THE DECISION IN 36 COMP. GEN 111 HOLDING THAT A REGULATION REQUIRING AN EMPLOYEE TO MAKE AN ELECTION BETWEEN ALTERNATIVE STATUTORY BENEFITS BEFORE HE REASONABLY COULD ASCERTAIN WHICH ALTERNATIVE BENEFIT WOULD BE TO HIS ADVANTAGE WAS TANTAMOUNT TO A DENIAL OF THE ELECTION SPECIFICALLY CONFERRED BY STATUTE IS NOT PERTINENT TO THE INSTANT CASE WHICH DOES NOT INVOLVE AN ELECTION OR THE DENIAL OF ANY OTHER RIGHT UNCONDITIONALLY GRANTED BY CONGRESS. MOREOVER, IN THE CITED CASE THE AGENCY STATED THAT ITS INTENT HAD NOT BEEN TO DEPRIVE THE EMPLOYEE OF THE ELECTION AND THAT THE LATER REGULATION CONFERRING THE ELECTION REFLECTED ITS TRUE INTENT.

IN VIEW OF THE BROAD GRANT OF REGULATORY AUTHORITY UNDER THE STATUTORY PROVISIONS IN QUESTION AND THE SPECIFIC WORDING OF THE CONTROLLING REGULATIONS, THERE IS NO BASIS UPON WHICH THIS OFFICE MAY AUTHORIZE THE PAYMENT OF THE RELOCATION ALLOWANCES TO THE EMPLOYEES IN QUESTION.