B-226519, Aug 22, 1988

B-226519, Aug 22, 1988

CIVILIAN PERSONNEL - Relocation - Actual expenses - Eligibility - Retired personnel - Reinstatement DIGEST: 1. An employee stationed in Oregon decided to retire in lieu of accepting a directed reassignment to another duty station. After retirement, she moved to the state of Washington. The employee was later reinstated retroactively since the agency had erroneously determined she was eligible for retirement. She was offered employment near her new residence. Her claim for relocation expenses after her retirement is denied since these expenses are not allowances the employee would have received but for the erroneous retirement. 2. An employee who moved after retirement was reinstated when it was determined that the agency erroneously computed her eligibility for retirement. She was offered employment near her new residence and was later reassigned to her former duty station. Her claim for relocation expenses back to her former duty station may be allowed since the reassignment constituted a permanent change of duty station.

Gertrude M. Grammer - Relocation Expenses Following Erroneous Retirement:

ISSUE

The issue in this decision concerns the claim of an employee to relocation and incidental expenses incurred following her erroneous retirement and subsequent reinstatement to federal service. We hold that the employee may not be reimbursed the costs of her move to a new location following her retirement. However, once the employee was reinstated into federal service at a new duty station, she was entitled to relocation expenses when the agency reassigned her back to her former duty station.

BACKGROUND

This decision is in response to a request for an advance decision from Mr. Clarence E. Tipton, Director, Fiscal and Public Safety, Forest Service, United States Department of Agriculture (USDA). Mr. Tipton has requested our opinion concerning the claim of Ms. Gertrude M. Grammer for various relocation and temporary duty expenses in the amount of $4,073.18. If these expenses are not allowable under current laws and regulations, Mr. Tipton has requested that we recommend to Congress that $3,073.18 of Ms. Grammer's claim be paid under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d) (1982).

On May 15, 1985, Ms. Grammer, whose permanent duty station was located in Cottage Grove, Oregon, was notified that her position was going to be abolished on June 22, 1985, due to a reduction of work in her unit. She was informed that she was eligible for a directed reassignment to a similar position in Glide, Oregon, to which she would be entitled to move at government expense if she accepted the reassignment. She was also later informed by her agency that she was eligible for retirement. Relying on this advice, Ms. Grammer retired on June 3, 1985.

By letter dated October 21, 1985, the Office of Personnel Management (OPM) notified Ms. Grammer that her application for retirement had been disallowed because the USDA personnel office had miscalculated her service computation date. As suggested by OPM, USDA retroactively reinstated Ms. Grammer on November 8, 1985, and paid her the backpay due. See Orlan Wilson, B-223118, Jan. 2, 1987, 66 Comp.Gen. ***. However, after her erroneous retirement on June 3, 1985, the following events took place which gave rise to Ms. Grammer's present claim.

After her retirement, Ms. Grammer moved to Otis Orchards, Washington. When the USDA reinstated Ms. Grammer in November 1985, the USDA office at her former duty station in Cottage Grove, Oregon, arranged for Ms. Grammer to work in the USDA Information Office in Spokane, Washington, which was near her new residence. This assignment was expected to enable Ms. Grammer to work for USDA from November 8, 1985, until she would meet the eligibility requirements for retirement in April 1986. However, Ms. Grammer withdrew her request for retirement in April 1986, because she was unable to find other work in the Spokane, Washington area and because of the low amount of her projected annuity. The USDA then decided to send Ms. Grammer back to Cottage Grove, Oregon, where she reported for work o April 28, 1986.

OPINION

In Orlan Wilson, cited above, we observed that while the Base Pay Act, 5 U.S.C. Sec. 5596 (1982), authorizes the payment of backpay in cases involving improper retirements, the Back Pay Act does not authorize payment of travel, transportation or relocation expenses when they are incidental expenses incurred by an employee as a consequence of an unwarranted personnel action. Such expenses are not allowances that the employee would have received if he had not undergone the improper personnel action. Thus, any expenses incurred by Ms. Grammer in connection with her move from Cottage Grove, Oregon, to Otis Orchards, Washington, following her retirement in June 1985 may not be reimbursed. Wilson, supra.

We note that when Ms. Grammer was reinstated by the USDA, she was employed in the Spokane, Washington, office which was near her new residence. Indeed, during the period from November 1985 to April 27, 1986, Ms. Grammer worked only in this office, and not in Cottage Grove, Oregon. Although the agency characterized this assignment as a "detail," we note that she was not authorized per diem or other expenses normally associated with a temporary duty assignment. When Ms. Grammer elected not to retire in April 1986, she was only then reassigned to her former duty station in Cottage Grove, Oregon. Under the circumstances, we believe that her travel back to her former duty station constituted a permanent change of duty station for which relocation expenses should have been authorized under 5 U.S.C. Secs. 5724 and 5724a (1982). As our cases have often held, the determination of an employee's duty station is a question of fact, and the agency's designation is not necessarily determinative. J. Michael Tabor, B-211626, July 19, 1983, as modified by B-211626, Dec. 19, 1984, and cases cited therein.

In this regard, Ms. Grammer seeks reimbursement for temporary quarters subsistence expenses, shipment of her household goods, and mileage and per diem in connection with her travel from Otis Orchards, Washington, to Cottage Grove, Oregon, in April and May 1986. Those expenses (approximately $1,220) may be paid to Ms. Grammer in the amount consistent with the applicable statutes and regulations governing relocation expenses.

In view of our previous decisions, cited above, and our disposition of this matter, we do not believe that there are sufficient legal or equitable reasons to refer the remainder of Ms. Grammer's claim to the Congress under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d) (1982).