B-180852, OCT 23, 1974

B-180852, OCT 23, 1974

FORMER DIRECTOR OF COMMERCE DEPARTMENT'S U.S. TRADE CENTER, ARGENTINA, WHOSE FOREIGN SERVICE RESERVE APPOINTMENT TERMINATED WHEN HE RETURNED TO REGULAR COMMERCE POSITION IN THE U.S., MAY BE PAID HOME SERVICE TRANSFER ALLOWANCE UNDER 5 U.S.C. SEC. 5924 SINCE IT IS ANTICIPATED THAT HE WILL BE REASSIGNED TO POST IN A FOREIGN AREA; ALSO, ALTHOUGH STATE DEPARTMENT HAS AUTHORITY TO APPOINT DIRECTOR, COMMERCE RECOMMENDS INDIVIDUALS FOR THAT APPOINTMENT AND MAY APPOINT TO OTHER POSITIONS AT FOREIGN TRADE CENTERS AND HENCE IS APPROPRIATE AGENCY TO MAKE DETERMINATION AS TO POTENTIAL REASSIGNMENT ABROAD.

WILLIAM J. LYNCH - HOME SERVICE TRANSFER ALLOWANCE:

BY LETTER DATED MARCH 4, 1974, AN AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF COMMERCE, HAS REQUESTED TO BE ADVISED WHETHER A VOUCHER IN THE AMOUNT OF $950 SUBMITTED BY MR. WILLIAM J. LYNCH MAY BE CERTIFIED FOR PAYMENT. MR. LYNCH'S CLAIM IS FOR PAYMENT OF A HOME SERVICE TRANSFER ALLOWANCE FOR THE PERIOD FROM OCTOBER 1 THROUGH 30, 1973, FOLLOWING HIS RETURN FROM AN OVERSEAS ASSIGNMENT TO BUENOS AIRES, ARGENTINA, UNDER THE STATE/COMMERCE FOREIGN SERVICE EXCHANGE PROGRAM.

PRIOR TO HIS ASSIGNMENT TO BUENOS AIRES, MR. LYNCH'S POSITION HAD BEEN CLASSIFIED UNDER THE GENERAL SCHEDULE AND HE HAD BEEN EMPLOYED BY THE DEPARTMENT OF COMMERCE. UPON HIS APPOINTMENT AS DIRECTOR OF THE UNITED STATES TRADE CENTER IN BUENOS AIRES, MR. LYNCH BECAME A FOREIGN SERVICE RESERVE OFFICER UNDER THE EMPLOYMENT OF THE DEPARTMENT OF STATE. AT THE END OF HIS ARGENTINE ASSIGNMENT, MR. LYNCH'S FOREIGN SERVICE RESERVE APPOINTMENT TERMINATED AND HE AGAIN BECAME AN EMPLOYEE OF THE DEPARTMENT OF COMMERCE. AS EXPLAINED BY OFFICIALS OF THE DOMESTIC AND INTERNATIONAL BUSINESS ADMINISTRATION, DEPARTMENT OF COMMERCE, THE QUESTION OF MR. LYNCH'S ENTITLEMENT TO A HOME SERVICE TRANSFER ALLOWANCE ARISES FROM THE FACT THAT DURING HIS FOREIGN ASSIGNMENT MR. LYNCH WAS NOT AN EMPLOYEE OF THAT DEPARTMENT. WE ARE ADVISED THAT UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AN INDIVIDUAL ASSIGNED TO A UNITED STATES TRADE CENTER ABROAD AS A DEPARTMENT OF COMMERCE EMPLOYEE E.G., AS DEPUTY DIRECTOR OF A TRADE CENTER, RATHER THAN IN A FOREIGN SERVICE RESERVE OFFICER STATUS WOULD BE PAID SUCH AN ALLOWANCE.

PAYMENT OF A HOME SERVICE TRANSFER ALLOWANCE IN CONNECTION WITH SERVICE IN THE UNITED STATES BETWEEN FOREIGN ASSIGNMENTS IS AUTHORIZED BY 5 U.S.C. SEC. 5924. INSOFAR AS PERTINENT, THAT SECTION PROVIDES:

"THE FOLLOWING COST-OF-LIVING ALLOWANCES MAY BE GRANTED, WHEN APPLICABLE, TO AN EMPLOYEE IN A FOREIGN AREA:

"(2) A TRANSFER ALLOWANCE FOR EXTRAORDINARY, NECESSARY, AND REASONABLE EXPENSES, NOT OTHERWISE COMPENSATED FOR, INCURRED BY THE EMPLOYEE INCIDENT TO ESTABLISHING HIMSELF AT A POST OF ASSIGNMENT IN -

"(B) THE UNITED STATES BETWEEN ASSIGNMENTS TO POSTS IN FOREIGN AREAS."

THE DEPARTMENT OF STATE'S REGULATIONS IMPLEMENTING 5 U.S.C. SEC. 5924 APPEAR AT SECTION 250 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). SUBSECTION 251.1 THEREOF REITERATES THE STATUTORY PREREQUISITE TO PAYMENT THAT THE ASSIGNMENT IN THE UNITED STATES BE ONE BETWEEN ASSIGNMENTS TO POSTS IN FOREIGN AREAS. SPECIFICALLY, THE HOME SERVICE TRANSFER ALLOWANCE IS DEFINED AS FOLLOWS:

"A. 'HOME SERVICE TRANSFER ALLOWANCE' MEANS AN ALLOWANCE FOR EXTRAORDINARY, NECESSARY, AND REASONABLE EXPENSES, NOT OTHERWISE COMPENSATED FOR, INCURRED BY AN EMPLOYEE INCIDENT TO ESTABLISHING HIMSELF AT A POST OF ASSIGNMENT IN THE UNITED STATES (SEC. 040A) BETWEEN ASSIGNMENTS TO POSTS IN FOREIGN AREAS."

THUS, A HOME SERVICE TRANSFER ALLOWANCE IS PAYABLE UPON AN EMPLOYEE'S RETURN TO THE UNITED STATES FROM A FOREIGN ASSIGNMENT ONLY UPON THE FINDING THAT IT IS ANTICIPATED THAT HE WILL AGAIN BE ASSIGNED TO A POST IN A FOREIGN AREA.

IN HIS PARTICULAR CASE, IT IS IN FACT ANTICIPATED THAT MR. LYNCH WILL BE REASSIGNED TO A POSITION WITH ONE OF THE FOREIGN UNITED STATES TRADE CENTERS OPERATED BY THE DEPARTMENT OF COMMERCE. WE ARE ADVISED BY OFFICIALS OF THAT DEPARTMENT THAT IT IS EXPECTED THAT MR. LYNCH WILL BE REASSIGNED WITHIN A PERIOD OF APPROXIMATELY 4 YEARS TO ANOTHER TRADE CENTER POSITION EITHER AS A DIRECTOR, OR PERHAPS AS A DEPUTY DIRECTOR.

WHILE IT IS CLEARLY ANTICIPATED THAT MR. LYNCH'S CURRENT ASSIGNMENT IN THE UNITED STATES WILL BE FOLLOWED BY A FURTHER FOREIGN ASSIGNMENT, DEPARTMENT OF COMMERCE OFFICIALS ARE IN DOUBT AS TO WHETHER THEY, RATHER THAN OFFICIALS OF THE DEPARTMENT OF STATE, MAY APPROPRIATELY MAKE THE NECESSARY DETERMINATION THAT HIS CURRENT ASSIGNMENT IS BETWEEN TWO FOREIGN ASSIGNMENTS, AND THAT COMMERCE MAY PAY HIM THE ALLOWANCE.

THE DEPARTMENT OF STATE HAS DECLINED TO MAKE THE NECESSARY FINDING INASMUCH AS THE DETERMINATION AS TO WHETHER MY. LYNCH WILL BE REASSIGNED TO A POSITION ABROAD LIES, AT LEAST IN THE FIRST INSTANCE, WITH THE DEPARTMENT OF COMMERCE. THE TRADE CENTERS ARE STAFFED AT THE DISCRETION OF THE DEPARTMENTS OF COMMERCE AND STATE, WITH EMPLOYEES FROM BOTH DEPARTMENTS. WITHOUT EXCEPTION, HOWEVER, THE DIRECTOR OF EACH CENTER IS A FOREIGN SERVICE RESERVE OFFICER WHILE THE DEPUTY DIRECTOR IS A COMMERCE DEPARTMENT EMPLOYEE. CANDIDATES FOR A TRADE CENTER DIRECTORSHIP, NONETHELESS, ARE SELECTED IN THE FIRST INSTANCE BY THE DEPARTMENT OF COMMERCE, AND ARE RECOMMENDED FOR APPOINTMENT TO THE DEPARTMENT OF STATE WHICH IN TURN IS AUTHORIZED TO APPOINT THE DIRECTOR AS A FOREIGN SERVICE RESERVE OFFICER. WHILE THE ULTIMATE DETERMINATION OF WHETHER A PARTICULAR INDIVIDUAL IS TO BE APPOINTED AS A DIRECTOR IS FOR THE STATE DEPARTMENT, DETERMINATION OF THE INDIVIDUAL OR CLASS OF INDIVIDUALS THAT WILL BE RECOMMENDED AND FROM WHICH FINAL SELECTION WILL BE MADE IS ESSENTIALLY FOR THE DEPARTMENT OF COMMERCE.

THE DEPARTMENT OF COMMERCE HAS DIRECTED OUR ATTENTION TO THE FACT THAT MR. LYNCH WOULD HAVE BEEN ENTITLED TO A HOME SERVICE TRANSFER ALLOWANCE HAD HE SERVED AS DEPUTY DIRECTOR RATHER THAN DIRECTOR OF THE BUENOS AIRES TRADE CENTER, OR EVEN IF HE HAD SERVED AT ONE OF THE TRADE CENTERS AS A DEPARTMENT OF COMMERCE EMPLOYEE IN A LESSER CAPACITY. BECAUSE THOSE EMPLOYEES WHO STAFF THE FOREIGN TRADE CENTERS ARE COMMERCE DEPARTMENT EMPLOYEES WHILE ABROAD AS WELL AS WHILE IN THE UNITED STATES, THE DEPARTMENT IS ABLE TO CERTIFY WHETHER IT IS INTENDED THAT THEY WILL BE REASSIGNED TO A POSITION ABROAD.

IN OUR OPINION, THE CIRCUMSTANCES OF MR. LYNCH'S ASSIGNMENT TO THE UNITED STATES - AND, IN PARTICULAR, THE FIRM EXPECTATION BY HIS CURRENT EMPLOYER, THE DEPARTMENT OF COMMERCE, THAT HE WILL BE REASSIGNED ABROAD - ENTITLE HIM TO A HOME SERVICE TRANSFER ALLOWANCE.

THE REMAINING QUESTION IS MERELY ONE OF THE CERTIFICATION PROCEDURE TO BE USED. AS TO THE STATE DEPARTMENT'S FUNCTION IN THIS REGARD, WE CONCUR IN THEIR FINDING THAT THEY ARE NOT IN A POSITION TO MAKE THE NECESSARY CERTIFICATION. WE UNDERSTAND THE DEPARTMENT OF COMMERCE'S HESITANCY TO MAKE THE CERTIFICATION, GIVEN ITS LACK OF FULL CONTROL OVER MR. LYNCH'S REASSIGNMENT ABROAD TO A DIRECTORATE POSITION. HOWEVER, UNDER THE PARTICULAR CIRCUMSTANCES, WE FEEL THAT IT WOULD BE APPROPRIATE FOR THE DEPARTMENT OF COMMERCE TO MAKE THE NECESSARY CERTIFICATION FOR PAYMENT OF THE HOME SERVICE TRANSFER ALLOWANCE TO MR. LYNCH AND OTHER TRADE CENTER DIRECTORS IN SIMILAR SITUATIONS. EVEN THOUGH THE STATE DEPARTMENT HAS THE ULTIMATE AUTHORITY TO APPOINT DIRECTORS, THE DEPARTMENT OF COMMERCE HAS CONTROL OVER THE INDIVIDUALS TO BE CONSIDERED FOR SUCH POSITIONS AND, IF AN INDIVIDUAL IS REJECTED FOR A DIRECTOR'S POSITION, IT IS NONETHELESS WITHIN THE AUTHORITY OF THE DEPARTMENT OF COMMERCE TO APPOINT THAT INDIVIDUAL TO ANOTHER POSITION WITH ONE OF THE UNITED STATES TRADE CENTERS. THUS, WE HAVE NO OBJECTION TO THE DEPARTMENT OF COMMERCE'S CERTIFICATION AS TO ENTITLEMENT AND PAYMENT OF MR. LYNCH'S CLAIM FOR A HOME SERVICE TRANSFER ALLOWANCE INSOFAR AS THAT CLAIM MAY BE OTHERWISE CORRECT.