Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ April 22, 1999 _______________________________________________ GSBCA 14750-RELO In the Matter of CHARLES G. BAKALY, III Charles G. Bakaly, III, Washington, DC, Claimant. Jackie M. Bennett, Jr., Deputy Independent Counsel, Office of the Independent Counsel, Washington, DC, appearing for Office of the Independent Counsel. BORWICK, Board Judge. The Office of the Independent Counsel (OIC) seeks reconsideration of our decision in Charles G. Bakaly, III, GSBCA 14750-RELO (Jan. 29, 1999). In that matter, the OIC requested a decision pursuant to 31 U.S.C. 3529 (Supp. II 1996) as to whether the OIC could reimburse claimant for full relocation expenses of claimant's move from Los Angeles, California to Washington, D.C., as a transferred employee, or the more limited relocation expenses available to a new appointee. We concluded that under applicable statute and the Federal Travel Regulation (FTR) the OIC had not demonstrated that Los Angeles -- the city of claimant's appointment -- was claimant's official station from which claimant could transfer, because the record did not establish that claimant had performed substantial work for the OIC in Los Angeles. See 5 U.S.C. 5723, 5724a; 41 CFR 302- 1.2(a), 302-1.4(k) (1998). We also stated that if the OIC could demonstrate that claimant performed substantial duties for the OIC in Los Angeles, we would have no objection to the OIC's reimbursing claimant his full relocation expenses. In its motion for reconsideration the OIC makes a new argument. It maintains that 28 U.S.C. 594(b)(2) and (3)(A) allows the OIC to designate an appointee's home as his or her official duty station and as the temporary duty station the OIC's "primary office" -- where the employee spends the majority of his or her time performing duties in an investigation. The OIC states that "the statute constitutes a de jure designation of a traveler's home as his 'official duty station' for the purpose of travel in connection with the operation of an independent counsel office." In its reconsideration request, the OIC explains that it and other OICs have relied on this statutory provision to place OIC employees on extended temporary duty allowing them to commute to or from their homes to perform official duties in the OIC primary office. The question the OIC referred to the Board, however, was not claimant's entitlement to reimbursement for extended travel expenses, but claimant's entitlement to reimbursement for certain relocation expenses. We consider whether that statute permits authorization of the relocation expenses claimed. The statute relied upon by the OIC provides in relevant part: (b) Compensation.-- . . . . (2) Travel expenses.--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) Travel to primary office.-- (A) In general.--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, or 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-month 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. (B) Relevant factors.--In making any certification under this paragraph with respect to travel and subsistence expenses of an independent counsel or person appointed under subsection (c), such employee shall consider, among other relevant factors-- (i) the cost to the Government of reimbursing such travel and subsistence expenses; (ii) the period of time for which the independent counsel anticipates that the activities of the independent counsel or person, as the case may be, will continue; (iii) the personal and financial burdens on the independent counsel or person, as the case may be, of relocating so that such travel and subsistence expenses would not be incurred; and (iv) the burdens associated with appointing a new independent counsel, or appointing another person under subsection (c), to replace the individual involved who is unable or unwilling to so relocate. 28 U.S.C. 594(b). We employ well-established rules in construing this statute. When Congress has spoken precisely, we must give effect to the unambiguously expressed intent of Congress. Chevron v. National Resources Defense Council, 467 U.S. 837, 842-43 (1984). As the Supreme Court has noted, the purpose of the statute is served "not only by what it sets out to change, but also what it resolves to leave alone." West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 98-99 (1991) (fee shifting statute granting prevailing party "attorney fees" does not include expert witness fees). Further, when Congress uses a phrase that has a clearly accepted meaning in both legislative and judicial practice, it is not to be extended or contracted through resort to legislative history. Id. Consistent with this general principle, when a statute references other subchapters, the conditions and limitations of the reference will not be ignored, unless to do so would render the statute an absurdity. Kidney Center of Hollywood v. Shalala, 133 F.3d 78, 82, 87 (D.C. Cir. 1998) (cross-reference in Medicare cost control provision prohibits Secretary of Health and Human Services from adopting a bad-debt cap for providers which effectively promotes cross-subsidization of beneficiaries and non-beneficiaries); United States v. Mauldin, 805 F. Supp. 35, 36 (N.D. Ala. 1992) (under Federal Debt Procedures Act, Government may not assess tax lien surcharge for actions brought under subchapter A when statute by reference applies only to surcharges for actions under subchapters B or C); Wassenaar v. Office of Personnel Management, 21 F.3d 1090, 1094 (Fed. Cir. 1994) (in survivorship annuity claim, cross-referenced provision relating to retirement annuities construed only for types of employees covered by survivorship annuities; retirement specific provisions of cross-referenced statute not applied because to do so would nullify survivorship benefits granted by the statute). Relocation expenses for new appointees and transferred employees are covered in subchapter II of chapter 57, title 5 of the United States Code. 5 U.S.C. 5721-5739. In contrast, the quoted portion of the statute deals with entitlements under subchapter I of chapter 57 of title 5 and concerns travel and subsistence expenses, not relocation expenses. The statute cited by the OIC states that OIC employees are entitled to "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." 28 U.S.C. 594(b)(2). This provision does nothing more than authorize payment of travel expenses in accordance with existing law applicable to other Federal employees. The exception in section 594(b)(3) states that after one year of service, OIC employees are not entitled to "travel, per diem, or subsistence expenses under subchapter I" for commuting to and from the primary office in which the OIC or person is located. 28 U.S.C. 594(b)(3)(A). As we explained in Deborah E. Gershman, GSBCA 14569-RELO, 98-2 BCA 29,811, at 147,634, Congress added that language to control a limited class of travel and subsistence expenses. Congress did not deal with relocation expenses provided for under subchapter II of chapter 57; it did not expand the meaning of "official station" mentioned in 5 U.S.C. 5724a, and defined by the FTR -- 41 CFR 302-1.4(k) -- to include every employee's home. In the words of the Court in West Virginia, Congress resolved to leave subchapter II relocation entitlements alone. The proffered language of 28 U.S.C. 594(b) is not relevant to determine the extent of claimant's rights for reimbursement of relocation expenses. The OIC also relies on the cost-comparison provisions of 28 U.S.C. 594(b)(3)(B). That provision merely requires the OIC to compare cost of travel with cost of relocation as the basis for certifying an extension of travel benefits; it does not expand relocation benefits beyond those provided in subchapter II of title 5, United States Code. In its motion for reconsideration, the OIC also argues that the Board's supposed "conclusion that the professionals assigned to the OIC do not perform substantial work at their home, official duty station, is factually inaccurate" and that "claimant can demonstrate extensive work on OIC matters conducted from his Los Angeles home prior to his permanent transfer to Washington, D.C." In its decision, the Board made no conclusion one way or the other as to the extent of claimant's work for the OIC in Los Angeles; it simply said that the record contained is evidence of any such work. To the contrary, the Board invited the OIC to demonstrate that claimant performed substantial work for the OIC in Los Angeles, so as to qualify Los Angeles as claimant's official duty station as required by statute, the FTR, and fifty-six years of administrative construction by the General Accounting Office and this Board of the meaning of the phrase "official station" in statute and regulation. While the OIC's current statement does not provide the necessary proof to support its conclusion, the OIC may yet establish that claimant is entitled to the broader relocation benefit claimant seeks.[foot #] 1 On reconsideration, the Board affirms its earlier decision.[foot #] 2 ______________________________ ANTHONY S. BORWICK Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 Claimant has resigned from the OIC effective June 1, 1999, before the expiration of claimant's one-year service agreement. The OIC does not consider the claim to be moot by the application of 5 U.S.C. 5724(i). The correctness of that conclusion is not before us. [foot #] 2 The OIC requested full Board consideration of the underlying decision. As is our practice with regard to requests for reconsideration in travel and relocation cases, the full Board has reviewed this opinion.