Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________________ June 4, 1998 ________________________________________ GSBCA 14569-RELO In the Matter of DEBORAH E. GERSHMAN Deborah E. Gershman, Washington, DC, Claimant. Gregory L. Lefever, Administrative Officer, Office of the Independent Counsel, Washington, DC, appearing for Office of the Independent Counsel. BORWICK, Board Judge. The Office of the Independent Counsel (OIC) requests a decision pursuant to 31 U.S.C. 3529 (section 3529 decision) in the matter of Deborah H. Gershman. The OIC asks the Board whether Ms. Gershman is entitled to reimbursement in connection with her en-route travel expenses and lease settlement expenses for her move from Little Rock, Arkansas to Washington, D.C. in March 1998. We conclude Ms. Gershman is entitled to those expenses as allowable under 5 U.S.C.A. 5724(a), 5724a (West Supp. 1998) and applicable provisions of the Federal Travel Regulation (FTR). On March 16, 1994, Ms. Gershman was appointed by the Inde- pendent Counsel (IC) in the Whitewater Investigation to an excepted service position as a staff assistant with the Depart- ment of Justice (DOJ). In July 1994, the IC sent Ms. Gershman on extended temporary duty (TDY) to the Little Rock, Arkansas, office of the investigation. From April to July 1994, Ms. Gershman had lived in her brother's apartment in the Washington, D.C. area. On July 1, 1994, Ms. Gershman moved to Little Rock and leased an apartment there. On October 17, 1994, Ms. Gershman was appointed to a staff assistant position with the OIC, continuing in extended TDY in Little Rock. While in Little Rock, Ms. Gershman used her pri- vately-owned vehicle (POV). The Independent Counsel Reorganization Act directs the IC to comply with the established policies of DOJ respecting the expenditure of funds, except to the extent that compliance would be inconsistent with the OIC's mission. 28 U.S.C. 594(l)(1)(C) (1994). In March 1997, DOJ issued an extended travel policy providing that for individuals to be reimbursed a lodging allow- ance at a temporary station, the traveler shall certify that he or she has an abode in a real and substantial sense at the official duty station. In 1997, the IC concluded that Ms. Gershman did not maintain such an abode in Washington, D.C., and the lodging allowance for Ms. Gershman's duty in Little Rock ceased. For purposes of the question presented, the OIC effec- tively determined that Ms. Gershman was no longer in TDY status in Little Rock. On January 23, 1998, while Ms. Gershman was on travel status in Washington, D.C., the IC requested that she report for duty in the Washington, D.C. office. Ms. Gershman continued to work in the Washington, D.C. office through February 1998, when the IC directed that Ms. Gershman's primary office be changed from Little Rock to Washington, D.C. as soon as possible. The change in Ms. Gershman's primary office was effective March 23. Ms. Gershman's apartment lease in Little Rock would have expired on April 30. Upon the change of her primary office from Little Rock to Washington, D.C., Ms. Gershman asked the OIC Administrative Officer whether she would be reimbursed for a lease cancellation fee if she terminated her lease one month before the expiration date; the Administrative Officer assured her that she would be. Ms. Gershman explains that if she had not been assured of reimbursement of the cancellation fee, she would have maintained her lease in Little Rock to the end of the lease term. To allow the change of offices, the OIC issued travel orders, authorizing Ms. Gershman's travel from Washington, D.C. to Little Rock, and return, with reimbursement on an actual subsistence expense basis up to $65 per night. The OIC autho- rized Ms. Gershman to travel by both common carrier and POV. Ms. Gershman flew to Little Rock, provided early termination notice to her landlord, and on March 20, commenced her travel in her POV to Washington D.C. Her journey, a drive of 1025 miles, took two days. In connection with that travel, Ms. Gershman seeks reim- bursement of $317.75 for POV mileage, $114.97 -- supported by receipts from the motels--for two nights lodging on the road, and the lease cancellation fee of $520. Pursuant to the Independent Counsel Reorganization Act of 1994, Ms. Gershman and other employees of the OIC were limited to eighteen months of travel reimbursements for "commuting to or from the city in which the primary office of the IC is located." 28 U.S.C. 594(b)(3)(A) (1994). The limitation has been re- placed by a provision that allows the IC and United States Court of Appeals for the District of Columbia to certify successive six-month periods of travel authority. 28 U.S.C.A. 594(b)(3)(- A) (West Supp. 1998). To carry out this provision, the OIC states that it has developed operating definitions of the phrase "commuting to or from" and the term "primary office." According to the OIC, commuting to or from means "the travel to and from a traveler's official duty station (home), based upon the traveler- 's address-of-record, and the temporary duty station." The OIC states that for most OIC employees involved in this investiga- tion, the temporary duty station is Little Rock. OIC defines primary office as "the location where an OIC appointee is spend- ing the majority of his or her duties in the investigation." The OIC notes that neither term is used in the FTR. The OIC requests the Board to "review [Ms. Gershman's] voucher considering these circumstances and the statutory provisions in 28 U.S.C. 594 when rendering your opinion." The OIC considers this voucher "to be unusual in the annals of government travel regulations." The Comptroller General concluded that ICs and their staffs are covered by the laws and regulations applicable to executive branch officers and employees contained in Title 5 of the United States Code relating to pay allowances and other benefits and entitlements. Office of Independent Counsel Restoration of Forfeited Annual Leave, B-252501 (June 24, 1993). We have followed that decision, noting that the OIC "is part of the executive branch for personnel and administrative matters" and concluding that "an independent counsel's claims for reimburse- ment of travel and per diem expenses are governed by the applica- ble regulation for executive branch employees, the FTR." Donald C. Smaltz, GSBCA 14328-TRAV, 97-2 BCA 29,311. Consequently, ICs and their staffs are entitled to relocation benefits and entitlements conferred by statute in Title 5 of the United States Code and as implemented by the FTR. Statute and regulation provide for agency payment of the travel expenses of an employee transferred in the interest of the Government from one official station to another for permanent duty upon the approval of the agency head or his designee. 5 U.S.C.A. 5724(a) (West Supp. 1998); 41 CFR 302-2.1(b) (1997). Statute and regulation also provide for agency payment of the expenses of the settlement of an unexpired lease of such an employee at the old official station. 5 U.S.C.A. 5724a(d)(1) (West Supp. 1998); 41 CFR 302-6.2(h). The FTR defines official station as "the building or other place where the officer or employee regularly reports for duty." 41 CFR 302-1.4(k). With respect to entitlement relating to the residence and household goods, official station or post of duty "also means the residence or other quarters from which the employee regularly commutes to and from work." Id. Here, Ms. Gershman moved to Little Rock in July 1994, and worked there until March 23, 1998, the effective date of the transfer of her primary office to Washington, D.C. In 1997, in terminating Ms. Gershman's temporary lodging allow- ance, the OIC, in effect, recognized Little Rock as Ms. Gershman- 's primary office. Save for temporary duty travel to Washington, D.C. and other cities, it appears that Ms. Gershman spent most of her time in Little Rock; she regularly reported for duty there and commuted daily there in her POV from her apartment. Under these circumstances, as of March 23, when Ms. Gershman was transferred, for the purpose of entitlement to relocation bene- fits, Little Rock served as Ms. Gershman's official station as well as her primary office. The change in Ms. Gershman's primary office from Little Rock to Washington, D.C. was also a change in her official station. She is therefore entitled to en-route travel expenses between Little Rock and Washington, D.C. and settlement expenses of the unexpired lease in Little Rock as authorized by statute and regulation. Settlement expenses of an unexpired lease are reimbursable (1) when applicable laws or the terms of the lease provide for payment of settlement expenses, (2) such expenses cannot be avoided by sublease or other arrangements, and (3) the employee has not contributed to the expense by failing to give appropriate lease termination notice promptly after the employee has definite knowledge of the transfer. 41 CFR 302-6.2(h); Desmond A. Prid- gen, GSBCA 14121-RELO, 97-2 BCA 29,416. We do not regard the provisions of 5 U.S.C.A. 594(b)(2)- (3) as affecting ICs's or their staff's benefits or entitlements to relocation expenses afforded other employees of the executive branch.[foot #] 1 These provisions were added in response to increased operational costs arising when some ICs and staff were reimbursed for several years worth of temporary duty travel and subsistence expenses while working in Washington, D.C. They were intended to clarify that ICs and their staffs were ----------- FOOTNOTE BEGINS --------- [foot #] 1 These provisions are as follows: (2) Except as provided in paragraph (3), an independent counsel and persons appointed under subsection (c) shall be entitled to the payment of travel expenses as provided by subchapter I of Chapter 57 of title 5, United States Code, including travel, per diem, and subsistence expenses in accordance with section 5703 of title 5. (3) After 1 year of service under this chapter, an independent counsel and persons appointed under subsection (c) shall not be entitled to the payment of travel, per diem and subsistence expenses under subchapter I of chapter 57 of title 5, United States Code, for the purpose of commuting to or from the city in which the primary office of the independent counsel or person is located. The 1-year period may be extended for successive 6-months periods if the independent counsel and the division of the court certify that the payment is in the public interest to carry out the purposes of this chapter. 5 U.S.C.A. 594(b)(2), (3) (West Supp. 1998). ----------- FOOTNOTE ENDS ----------- subject to the same travel laws as all other federal employees but that, after one year of service, the ICs and staff would not be entitled to reimbursement of travel and subsistence expenses when working in the city in which their primary office is located, unless the certifying officer certified that additional payments were in the public interest. S. Rep. No. 101, 103 Cong., 2d Sess. 16, 24-25, reprinted in 1994 U.S.C.C.A.N. 748, 760, 769. This matter is returned to the OIC's Administrative Office for evaluation of whether the expenses are otherwise allowable under statute and regulation. __________________________ ANTHONY S. BORWICK Board Judge