Matter of: Lester L. Reschley-Transportation of Household Goods Incident to Transfer-Subsequent Voluntary Transfer File: B-249992 Date: February 23, 1993 72 Comp.Gen. 111

Matter of: Lester L. Reschley-Transportation of Household Goods Incident to Transfer-Subsequent Voluntary Transfer File: B-249992 Date: February 23, 1993 72 Comp.Gen. 111

Civilian Personnel Relocation Expenses Reimbursement Eligibility Personal convenience Civilian Personnel Relocation Household goods Shipment Reimbursement Eligibility An employee who was transferred in the interest of the government to a new duty station remained there only for about 5 months before being transferred for his own convenience to another duty station. Although he had not exercised his entitlement to have his household goods shipped incident to the first transfer prior to his subsequent transfer for his own convenience, he is not entitled to have his goods shipped subsequent to the second transfer because such a transfer for the employee's convenience terminates that entitlement.

The Administrator of the Food Safety and Inspection Service (FSIS), Department of Agriculture, request our decision whether Dr. Lester J. Reschley may be authorized transportation of his household goods at government expense incident to the transfer described below. We concluded that he may not.

Background

In October 1991, FSIS approved a transfer in the government's interest for Dr. Reschley from a plant in Medford, Oregon, to a plant in Ottumwa, Iowa. Incident to this transfer Dr. Reschley signed a 12-month service agreement, and the agency authorized the full range of relocation benefits, including real estate expenses and transportation of household goods. However, within a few months of his arrival at Ottumwa, Dr. Reschley requested a voluntary transfer to another duty station. He indicates that this was because he experienced allergic reactions to the fumes and dust in the Ottumwa plant. [1] In requesting this transfer, Dr. Reschley signed a request for reassignment on January 12, 1992, clearly indicating that the reassignment would be at his own expense. In February 1992, FSIS approved Dr. Reschley's request for a voluntary transfer, for which relocation benefits were not authorized, to a position in Columbia, Missouri. He reported for duty at Columbia on March 23, 1992, without a break in service, and has completed over 12 months of continuous service since his transfer to Ottumwa.

During his 5 months of service in Ottumwa, Dr. Reschley stayed in temporary quarters, leaving his household goods in storage in Medford, where they remain. Dr. Reschley indicates that in early February 1992 (after he had signed the request for reassignment) he spoke by telephone with an employee in the agency's procurement section concerning shipment of his household goods. He states that this person assured him that the destination on the government bill of lading issued for the shipment of his goods incident to his transfer to Ottumwa could be changed to Columbia and that he would be liable only for about $100 for excess costs by which shipment from Medford to Columbia would exceed the cost of shipment from Medford to Ottumwa. The agency indicates that this advice would have been based on the provision of the Federal Travel Regulation (FTR) which states that the expenses of shipment of an employee's household goods are allowable-

whether the point of destination is the new official station or some other point selected by the employee . . . However, the total amount that may be paid . . . by the Government shall not exceed the cost of transporting the property in one lot by the most economical route from the last official station of the transferring employee . . . to the new official station. 41 C.R.F. Sec. 302-8.2.

However, in early March 1992, when Dr. Reschley called the agency's administrative servicing personnel to arrange for shipment of his goods from Medford to Columbia, he was advised that special approval would be required to change the bill of lading. Subsequently, the agency denied his request to ship his household goods from Medford to Columbia based on a decision of our Office holding that, upon an employee's voluntary transfer, the employee relinquishes any entitlement remaining from an earlier transfer in the government's interest. 27 Comp.Gen. 748 (1948). See also, B-154389, July 10, 1964.

Through Counsel, Dr. Reschley cites several decisions of our Office and the courts holding that relocation benefits incident to a transfer in the government's interest are an entitlement of the employee, provided he complies with the 12-month service agreement required by 5 U.S.C. Sec. 5724(i). He also argues that our holding in 27 Comp.Gen. 748 is distinguishable from Dr. Reschley's case on the basis that the executive order cited as its basis has been revoked and replaced by the Federal Travel Regulation, which makes no reference to an employee relinquishing his entitlement due to a subsequent transfer. In support of this position he cites our decision B-142286, Apr. 8, 1960, wherein we allowed payment for shipment of an employee's household goods and travel expenses, in a factual situation he considers analogous to Dr. Reschley's. Therefore, he asserts that he still is entitled to ship his household goods incident to his transfer to Ottumwa.

In an alternative argument, Dr. Reschley argues that his allergic reaction to the dust and fumes at the Ottumwa plant constitutes a handicapping condition and, therefore, FSIS was obligated under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 et seq. (1988), to transfer him to another plant. Therefore, his transfer to Columbia should not be considered voluntary, and he should be reimbursed the full costs of that move.

Opinion

Initially, we must point out that we have no jurisdiction over substantive claims brought under the Rehabilitation act of 1973. [2] That Act's Implementing regulations require employees to first file a complaint with their agency, whose final decision may be appealed to the Equal Employment Opportunity Commission. [3] Therefore, while Dr. Reschley raises the Rehabilitation Act as a basis for his claim, no agency determination appears to have been made on this issue, and as we noted, this is not a matter for us to decide.

We now turn to the issue over which we do have jurisdiction-whether Dr. Reschley remains entitled to have his household goods shipped under provisions of the statute authorizing transportation of household goods incident to a transfer, 5 U.S.C. Sec. 5724.

As Dr. Reschley's counsel argues, generally, an employee transferred " in the interest of the government" is entitled under 5 U.S.C. Sec. 5724(a), and implementing regulations, to payment by his agency for the costs of travel and transportation, including transportation of household goods, to the new duty station. Payment is subject to subsection (i) which provides that an agency may pay such expenses only after the employee agrees "in writing to remain in the Government service for 12 months" after the transfer. Subsection (h), however, expressly prohibits such payments when the transfer "is made primarily for the convenience or benefit of the employee."

Since FSIS characterized Dr. Reschley's March 1992 transfer from Ottumwa to Columbia as voluntary (i.e., primarily for Dr. Reschley's convenience or benefit), in view of 5 U.S.C. Sec. 5724(h), supra, they properly did not authorize relocation benefits incident to that transfer. The question then is whether Dr. Reschley retains the household goods shipping entitlement incident to his first transfer, from Medford to Ottumwa, notwithstanding his subsequent transfer for his own benefit to Columbia.

Our cases interpreting the Statute from which 5 U.S.C. Sec. 5724(h) is derived begin with 27 Comp.Gen. 748, to which the agency referred. In that case, an employee was transferred in the interest of the government from Portland, Oregon, to Honolulu, Hawaii, incident to which he was authorized to ship his household goods from the old to the new duty station. Similar to the facts of Dr. Reschley's case before he moved his household goods, the employee requested and received a transfer for his own convenience from Honolulu to Eugene, Oregon. At issue was whether the employee was entitled to reimbursement for the cost of shipping his household goods from Portland to Eugene. There, we applied statutory and regulatory provisions which, contrary to Dr. Reschley's argument, continue in substance to be in effect today. [4] In that case we held that the employee could not be reimbursed, concluding:

Since the payment of expenses for transportation is expressly precluded in any case where the transfer is affected for the convenience of the employee, it necessarily must be concluded that any and all right to transportation expenses which this employee acquired under [the applicable law and regulations] . . . was relinquished and thereby automatically terminated on . . . the effective date of orders [transferring the employee to Eugene]. 27 Comp.Gen. at 750.

We followed this reasoning in B-154389 July 10, 1964, supra, and alluded to it with favor in Robert B. Barabin, B-180172, Aug. 28, 1974.

Implicit in these decisions is the principle that although household goods may be shipped to or from points other than the old and new stations, such shipment to be at government expense, must be in connection with the change of duty station for which the statute and regulations authorize shipment.

As noted above, Dr. Reschley argues that the government is bound to provide the authorized entitlements under the agreement required by 5 U.S.C. Sec. 5724(i), [5] provided the employee completes the required 12 months of service even after he transfers elsewhere for his own convenience. In that regard, while we have held that the relocation benefits authorized for a transferring employee become a vested entitlement provided the employee completes the required 12 months of government service following the transfer, the cases Mr. Reschley's attorney cites did not involve the situation involved here where the employee, prior to exercising his entitlement, transfers for his own convenience to another duty station and then wishes to exercise the entitlement. [6] In those cases, it simply was held that, having moved to a new duty station in the interest of the government, the employee may keep the benefits related to that move if the employee ultimately completes 12 months of government service whether with the agency that transferred him of another agency. Unlike Dr. Reschley's case and 27 Comp.Gen. 748 and B-154389, July 10, 1964, the cases cited do not involve an employee who after first transferring in the interest of the government, received a transfer for his own convenience to another duty station in another geographical location and, in effect, wants to take with him the benefits to which he was entitled incident to his earlier move in the government interest. Clearly, the transportation in such a situation could not be deemed to be in connection with the first transfer, for which shipment was authorized, but must be considered to be in connection with the second transfer for which it is specifically precluded.

As to B-142286, Apr. 8, 1960, which Dr. Reschley's attorney cited as analogous to Dr. Reschley's situation, where we allowed payment for an employee's and his dependents' travel and shipment of his household goods to his new duty station although he was immediately transferred back for his own convenience to the original station, we find a crucial difference between that case and Dr. Reschley's. In the earlier case the travel and transportation had been undertaken as authorized to the new duty station prior to the return transfer for the employee's convenience, while in Dr. Reschley's case he seeks authorization for shipment of his household goods subsequent to his transfer to a new station for his own convenience. Just as we allowed payment for the travel and transportation undertaken incident to moving to the new duty station under the original transfer in the earlier case, we do not question the costs incurred by the agency for Dr. Reschley's and his dependents' expenses incident to moving to Ottumwa, including the period of temporary storage of household goods authorized by the agency. [7] However, because subsection 5724(h) expressly prohibits reimbursement for any expenses associated with a move at the employee's request or for his own convenience, we may not approve shipment of his household goods subsequent to his transfer to Columbia. [8]

The agency also has asked, if the claim may not otherwise be paid, whether Dr. Reschley's claim may be submitted to congress as a meritorious claim pursuant to 31 U.S.C Sec. 3702(d) (1988), under which we may refer a claim to Congress if the claim may not be paid using an existing appropriation and which presents such substantial legal or equitable elements as to be deserving of consideration by the Congress.

We have held that the requisite equitable elements for out submission of a claim to Congress may be presented by a claim based on erroneous advice or authorization furnished by a government official, but only if the employee demonstrates reasonable reliance on the advice or authorization to his detriment. Frederick J. Donnelly, B-237607, May 21, 1990. In Dr. Reschley's case, while he may have initially received some erroneous advice concerning changing the destination on the bill of lading for shipment of his household goods, the record does not show that he relied on it to his detriment since he requested the move to Columbia and acknowledged that it would be at his own expense prior to receiving that advice. In addition, we understand that Dr. Reschley is still pursuing intra-agency avenues of relief, and as noted he has also made a claim under the Rehabilitation Act which we have no jurisdiction to resolve. Therefore, we do not consider Dr. Reschley's claim appropriate for us to report to the Congress under the Meritorious Claims Act.

1. The agency states that Dr. Reschley notified them in April, after his subsequent transfer from Ottumwa, that his allergy problem had been a contributing factor in his request for a transfer.

2. Under our authority to review the expenditure of appropriated funds, we may consider the propriety of awards under laws barring discrimination. See for example, Violet M. Dawes, 69 Comp.Gen. 469 (1990), which involved sex and age discrimination complaints. However, because no determination on Dr. Reschley's complaint has been made under the Rehabilitation Act, we do not reach the question whether that Act would authorize the type of expenditures at issue here.

3. See 29 C.R.F. Sec. 1613.708 (1991), which requires agencies to have procedures for processing complaints alleging mental or physical handicap discrimination that comply with the requirements found at 29 C.F.R. Secs. 1613.213 et seq., and 1613.601 et seq., for processing other types of discrimination complaints.

4. The applicable statute was the act of August 2, 1946, 60 Stat. 806, section 1 of which prohibited reimbursement if "the transfer is made primarily for the convenience or benefit of the officer or employee or at his request." This language is found in substantially the same form today at 5 U.S.C. Sec. 5724(h). The applicable regulations then in effect were found in Executive Order No. 9805, Nov. 25, 1946, sections 4, 5, and 8, the substance of which are now found in the FTR, Secs. 302-1.3(a)(1); 302- 1.6; and 302-8.2.

5. Congress amended the 1946 Act to include the 12-month service requirement in 1966. Pub. L. no. 89-516, Sec. 28, 80 Stat. 323, 325 (1966). This provision is found in substantially the same from today at 5 U.S.C. Sec. 5724(i).

6. See Thomas D. Mulder, 65 Comp.Gen. 900 (1986); George L. Daves 65 Comp.Gen. 342 (1986); Jeffrey P. Cardinal, 64 Comp.Gen. 643 (1985); Bertram C. Drouin, 64 Comp.Gen. 205 (1985); and Finn v. United States, 428 F.2d 828 (Ct. Cl. 1970). See also Lucy S. Tyler, B-222371, Nov. 17, 1986; and Alice J. Converse, B-241781, Apr. 15, 1991.

7. Dr. Reschley's attorney reports that the agency in fact has agreed to reimburse Dr. Reschley for the storage costs he incurred while he was stationed in Ottumwa.

8. In B-142286, Apr. 8, 1960, the costs of returning the employee, his dependents, and household goods incident to the return transfer were borne by the employee.