B-179907, JUN 7, 1974

B-179907, JUN 7, 1974

ALTHOUGH TRANSFERRED EMPLOYEE'S NEW OFFICIAL DUTY STATION WAS 25 MILES FROM HIS OLD STATION, HE IS NOT ENTITLED TO RELOCATION ALLOWANCES SINCE AGENCY IS REQUIRED TO DETERMINE WHEN RELATIVELY SHORT DISTANCE TRANSFERS ARE INVOLVED THAT EMPLOYEE'S CHANGE OF RESIDENCE WAS INCIDENT TO HIS TRANSFER AND IT HAS DETERMINED THAT THE EMPLOYEE'S MOVE OF APPROXIMATELY 9 MILES, WITH TRAVEL TIME OF 45 MINUTES FROM THE OLD RESIDENCE TO THE NEW DUTY STATION REDUCED TO 30 MINUTES FROM THE NEW RESIDENCE, WAS NOT INCIDENT TO THE TRANSFER.

TO MR. ORRIS C. HUET:

THIS ACTION WAS REQUESTED BY MR. ORRIS C. HUET, AN AUTHORIZED CERTIFYING OFFICER, FOR THE DEPARTMENT OF AGRICULTURE. MR. HUET SUBMITTED FOR ADVANCE DECISION A VOUCHER IN THE AMOUNT OF $986.09 REPRESENTING EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, MISCELLANEOUS RELOCATION EXPENSES, AND REAL ESTATE EXPENSES INCIDENT TO CHANGE OF STATION DURING 1972 BY MR. JAMES A. GRANT FROM PORTLAND TO ESTACADA, OREGON, A DISTANCE OF APPROXIMATELY 25 MILES.

IT IS STATED THAT MR. GRANT MOVED FROM 3441 N.E. 60TH AVENUE, PORTLAND, TO 19115 N.E. CLACHAMAS STREET, PORTLAND, A DISTANCE OF APPROXIMATELY 9 MILES. IT APPEARS THAT THE MILEAGE FROM THE OLD RESIDENCE TO THE OLD OFFICIAL STATION IS APPROXIMATELY 5 MILES AND FROM THE OLD RESIDENCE TO THE NEW OFFICIAL STATION IT IS APPROXIMATELY 31 MILES WITH TRAVEL TIME OF ABOUT 45 MINUTES AND 30 MINUTES, RESPECTIVELY, FROM THE OLD AND NEW RESIDENCE TO THE NEW DUTY STATION. MILEAGE FROM THE NEW RESIDENCE TO THE NEW STATION IS NOT SHOWN.

IT IS STATED THAT THE TRAVEL-ISSUING OFFICER HAS DETERMINED THAT THE CHANGE OF RESIDENCE IS NOT INCIDENT TO THE CHANGE OF OFFICIAL DUTY STATION. ADDITIONALLY SUCH OFFICIAL STATES THAT MR. GRANT WAS ADVISED PRIOR TO HIS CHANGE OF RESIDENCE THAT THE INTENT OF THE TRAVEL AUTHORIZATION WAS THAT HE MOVE TO OR NEAR ESTACADA AND THAT MOVING WITHIN THE GENERAL COMMUTING AREA - PORTLAND - WAS NOT INTENDED. AN AMENDMENT DATED JUNE 8, 1973, TO THE ORIGINAL AUTHORIZATION IS TO THE FOREGOING EFFECT. MR. GRANT OBJECTS TO THE AMENDMENT AND FEELS HE COMPLIED WITH THE TERMS OF THE TRAVEL AUTHORIZATION.

PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF TRANSFERRED GOVERNMENT EMPLOYEES IS 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 EXPENSE 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."

PROVISIONS FOR PAYMENT OF RELOCATION ALLOWANCES ARE PRESCRIBED IN 5 U.S.C. 5724A AS FOLLOWS:

"(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 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. THE APPLICABLE RELOCATION ALLOWANCE REGULATIONS WERE SET FORTH IN OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A 56, EFFECTIVE SEPTEMBER 1, 1971. SECTION 1.1C OF THOSE REGULATIONS PROVIDED IN PERTINENT PART:

"C. TRAVEL COVERED - GENERALLY. WHEN CHANGE OF OFFICIAL STATION OR OTHER ACTION DESCRIBED BELOW IS AUTHORIZED OR APPROVED BY SUCH OFFICIAL OR OFFICIALS AS THE HEAD OF THE DEPARTMENT MAY DESIGNATE, TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES AS PROVIDED HEREIN ARE PAYABLE IN THE CASE OF (1) 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 TEN MILES DISTANT FROM THE OLD OFFICIAL STATION; AND, IN CASE OF A RELATIVELY SHORT DISTANCE RELOCATION, A DETERMINATION OF ELIGIBILITY IS MADE UNDER THE PROVISIONS OF 1.6A; ***"

SECTION 1.6A OF THE REGULATIONS WITH REFERENCE TO A SHORT DISTANCE RELOCATION PROVIDED:

"1.6 ELIGIBILITY - SHORT DISTANCE IS INVOLVED

"A. TRANSFERS. WHEN THE CHANGE OF OFFICIAL STATION INVOLVES A SHORT DISTANCE 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 CHANGE 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 CHANGE OF OFFICIAL STATION UNLESS THE ONE-WAY COMMUTING DISTANCE FROM THE OLD RESIDENCE TO THE NEW OFFICIAL STATION IS AT LEAST TEN 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."

WITH RESPECT TO A RELATIVELY SHORT DISTANCE RELOCATION THE PROVISIONS QUOTED ABOVE DO NOT ESTABLISH FIXED RULES TO BE APPLIED IN ALL CASES INVOLVING TRANSFER BETWEEN OFFICIAL STATIONS WHICH ARE RELATIVELY CLOSE TO EACH OTHER. RATHER THE REGULATION GIVES THE AGENCY BROAD AUTHORITY WITHIN WHICH IT MUST DETERMINE WHETHER THE EMPLOYEE'S MOVE FROM ONE RESIDENCE TO ANOTHER IS IN FACT INCIDENT TO THE CHANGE OF OFFICIAL STATION.

A TRAVEL ORDER MAY NOT BE AMENDED AFTER THE TRAVEL HAS BEEN PERFORMED TO INCREASE OR DECREASE THE EMPLOYEE'S ENTITLEMENT. THEREFORE, THE AMENDMENT TO THE TRAVEL AUTHORIZATION APPEARS TO BE IMPROPER. HOWEVER, SUCH IMPROPRIETY DOES NOT AFFECT THE OUTCOME OF THIS CASE SINCE, AS POINTED OUT ABOVE, MR. GRANT'S ENTITLEMENT MUST BE BASED ON AN ADMINISTRATIVE DETERMINATION THAT THE CHANGE OF RESIDENCE WAS INCIDENT TO THE TRANSFER. ON THE RECORD BEFORE US IT CANNOT BE SAID THAT THE ADMINISTRATIVE DECISION THAT MR. GRANT'S RELOCATION WAS NOT INCIDENT TO THE TRANSFER WAS ARBITRARY, CAPRICIOUS, OR AN ABUSE OF ADMINISTRATIVE DISCRETION. ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.