B-270196 March 22, 1996

B-270196 March 22, 1996

Where a notice of selection for a position involving a transfer is issued contingent upon availability of permanent change-of-station (PCS) funding, the Federal Aviation Administration (FAA) includes a statement in the notice of selection that relocation expenses incurred prior to date travel orders are issued will not be reimbursed. The statement would be sufficient to preclude reimbursement of such expenses when the selection is cancelled prior to issuance of the travel order, but not when a travel order is actually issued. The FAA is advised to amend the statement to provide that, if the selection is cancelled prior to issuance of travel orders, PCS expenses will not be reimbursed.

Ms. Deborah A. Osipchak Manager, Financial Services Branch Federal Aviation Administration U.S. Department of Transportation 800 Independence Avenue, SW Washington, DC 20591

Dear Ms. Osipchak:

We refer further to your letter dated October 5, 1995, with enclosures. You seek an opinion regarding the Federal Aviation Administration's (FAA) authority to limit the relocation expense reimbursement eligibility of employees whose selection for a position is contingent upon the availability of permanent change-of-station (PCS) funding.

The facts, as briefly described in a memorandum dated September 21, 1995, from your Manager, Accounting Branch, ASW-42, to the Manager, Financial Review Division, ABA-100, are that employees of the FAA, upon selection for positions involving a permanent change of station, receive an ASW Form 3330-3 "Notice of Selection." If that selection is contingent on the availability of PCS funding, the Notice of Selection contains the following statement:

"Selection and EOD [Entry on Duty] contingent upon availability of PCS funds; therefore, employee is not to incur PCS expenses until travel order is issued. Expenses incurred prior to date travel order is signed will not be reimbursed by the Government."

The memorandum also states that this Office has ruled that relocation
expenses incurred by an employee in anticipation of transfer may be
reimbursed when the travel authorization subsequently issued authorizes
those expenses based on a previously existing administrative intent to
transfer at the time the expenses were incurred. Therefore, the question
asked is whether the above-quoted statement on the Notice of Selection is
sufficient to preclude reimbursement of any expenses incurred by a
selected employee prior to issuance of a travel order or notification of
cancellation of the selection.

We have been advised by FAA officials that FAA has encountered cases where
employees who received a Notice of Selection had been orally assured by
their supervisors that they could prepare for their transfer, even though
their travel authorization had not been issued. As a result, they
proceeded to incur relocation expenses in anticipation of that transfer
and some of them have sought reimbursement for those expenses even before
funding was available and their travel authorization is issued. Others
have similarly incurred relocation expenses in anticipation of transfer,
but because there was no PCS funding, their selection and transfer had to
be cancelled before travel orders were issued.

The authority to reimburse relocation expenses of employees and their
dependents who are transferred from one station to another for permanent
duty in the interest of the government is contained in 5 U.S.C. Sec. 5724
and 5724a (1994), and implementing regulations found in chapter 302 of the
Federal Travel Regulation (FTR). [1] Under the provisions of the FTR,
administrative authorization or approval of a transfer is a necessary
condition to the government assuming the relocation expenses of a
transferred employee. [2] Ordinarily, such approval is evidenced by a
formal written travel authorization issued with sufficient lead time to
allow the employee to prepare for his move before reporting to his/her new
duty station [3] and when issued, becomes the primary basis upon which
relocation expenses may be reimbursed. [4] However, we have long held
that where relocation expenses are incurred prior to and in anticipation
of a transfer, the employee may be reimbursed if the expenses were
incurred based on a previously existing administrative intention to
transfer the employee, clearly evident at the time the expenses were
incurred, and the travel authorization subsequently issued authorizes
those expenses. [5]

What constitutes notice of an administrative intent to transfer an
employee depends on the circumstances in each case. [6] We have held that
verbal notice to an employee of his/her tentative selection for a new
position qualifies, [7] even where the employee's transfer is contingent
on the occurrence of a particular future event, such as higher level
approval of an employee selection for a position. [8] Similarly, we have
found clear intention to transfer an employee where there was official
notice that all essential functions of an installation were to be
relocated. [9] Also, where a selected employee sells his or her residence
in anticipation of transfer after receiving definite notice of that
transfer, and a travel authorization is subsequently issued pursuant to
the Notice of Selection, the employee is entitled to be reimbursed for the
expenses of selling the residence. [10]

In the situation described in the FAA memorandum, the Notice of Selection
states that the employee has been selected for a new position. This
clearly establishes an administrative intent to transfer the employee.
Consequently, the current statement in the FAA Notice of Selection that
"expenses incurred prior to date travel order is signed will not be
reimbursed by the Government," goes beyond the problem to be corrected and
would not be enforceable in all cases. If a travel authorization is
issued in due course, the employee would be entitled to be reimbursed
otherwise allowable relocation expenses. On the other hand, if the Notice
of Selection is cancelled prior to issuance of a travel authorization, a
warning statement in the Notice of Selection would be sufficient to deny
the employee reimbursement for expenses incurred prior to cancellation.
Therefore, we recommend that the FAA revise the statement in the Notice of
Selection. Since only a cancellation of the selection before travel
orders are issued would defeat the employee's claim for reimbursement of
anticipatory relocation expenses, we suggest that the following language
be used:

"Selection and EOD contingent upon availability of PCS funds;
therefore, employee should not incur PCS expenses until travel order
is issued. In the event that the selection is cancelled prior to
issuance of travel orders, any PCS expenses incurred will not be
reimbursed by the Government."

Such a warning, however, would not address the problem of the employee who
incurs relocation expenses after receiving definite notice of transfer and
then seeks reimbursement for those expenses before travel orders are
issued. We note that section 301-11.3(b) of the FTR [11] specifically
provides that travel vouchers for temporary duty must be supported by a
copy of the travel authorization in order to be reimbursed. While similar
language is not contained in chapter 302 of the FTR for relocation travel,
section 302-1.3(c) thereof provides that the guidelines in section 301-1.5
of the FTR on issuance of travel authorizations shall be followed, and
section 302-1.4(l) of the FTR provides that the effective date of
transfer, i.e., reporting for duty, [12] shall be used for relocation
expense reimbursement purposes. Therefore, the FAA may wish to issue its
own regulation providing that claim vouchers for relocation expenses must
be accompanied by a copy of the travel authorization and may not be paid
until after the employee reports for duty at his/her new duty station.

Sincerely yours,

Lowell Dodge
Associate General Counsel

1. 41 C.F.R. Chapter 302 (1995).

2. 41 C.F.R. Sec. 302-1.3 (1995).

3. 41 C.F.R. Sec. 302-1.3(b) and (c) (1995).

4. 54 Comp.Gen. 993 (1975), at 995.

5. 48 Comp.Gen. 395 (1968); 54 Id. 993, supra, footnote 4; James K. Marron, 63 Id. 298 (1984); Joan E. Marci, B-188301, Aug. 16, 1977; George S. McGowan, B-206246, Aug. 29, 1984; and Kirk S. Peters, B-249451, Jan. 7, 1993.

6. 48 Comp.Gen. 395 (1968), supra.

7. Gerald S. Beasley, B-196208, Feb. 28, 1980, and decisions cited.

8. James H. Hogan, B-191912, Apr. 5, 1979; John J. Fischer, B-188366, Jan. 6, 1978; and Stanley N. Hirsch, B-187045, Aug. 3, 1977.

9. Kirk S. Peters, B-249451, Jan. 7, 1993, citing to Orville H. Myers, 57 Comp.Gen. 447 (1978). Cf. Joseph C. Hutchinson, B-182013, May 14, 1975, affirmed on reconsideration, Sept. 13, 1976.

10. Ronald DeFore, B-227663, Oct. 23, 1987, citing 55 Comp.Gen. 613 (1976).

11. 41 C.F.R. Sec. 301-11.3(b) (1995).

12. 41 C.F.R. Sec. 301-1.4(l) (1995).