Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ January 29, 1999 _______________________________________________ GSBCA 14750-RELO In the Matter of CHARLES G. BAKALY, III Charles G. Bakaly, III, 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 (1996) (section 3529 decision) in the matter of Charles G. Bakaly, III, claimant. Claimant, the spokesman for the Independent Counsel (IC), was authorized reimbursement of real estate transaction expenses for the sale of his house in Los Angeles, California, and the purchase of a residence in Washington, D.C., arising from his alleged permanent change of station, as well as for temporary quarters subsistence and other travel expenses. The OIC seeks advice on whether claimant "should have been transferred or relocated as a new appointee." For the reasons stated below, we conclude that claimant should have been relocated as a new appointee when he moved with his family from Los Angeles to Washington, D.C., in August of 1998, and not as an employee transferring from an official duty station in Los Angeles. The circumstances are unusual, but in light of the chronology of events and the agency's actions, we cannot conclude on this record that the agency has established that Los Angeles was, in fact, claimant's official station from which he could transfer as an employee. The facts as revealed by the record are as follows. The OIC explains in its referral letter to the Board that in early April 1998, the head of the agency decided to appoint claimant to fill an urgently needed position and claimant began working "almost immediately." The appointment document the OIC provided the Board shows that, effective April 13, 1998, the OIC appointed claimant to an excepted temporary indefinite appointment as an attorney (independent counsel), whose employing office was in Washington, D.C. The OIC, moreover, authorized claimant's temporary duty (TDY) travel between Los Angeles, California and Washington, D.C. for the period April 1, 1998 (some twelve days before the effective date of claimant's appointment) through June 30, 1998. The OIC's Administrative Officer states that when claimant was appointed, he was placed in TDY status at the time of his appointment from what the Administrative Officer stated was "his official duty station--California." On the travel authorization, the OIC deemed claimant's permanent duty station to be "Los Angeles [California]." In the OIC's Request to the Board, Attachment Two (July 17, 1998), the OIC Administrative Officer explained that in early April 1998, the duration of claimant's position was uncertain. When clamant was initially appointed, the IC and Deputy IC viewed claimant's appointment lasting for one or two months, with the potential to become permanent if the OIC management and claimant worked well together and if the role and responsibilities of claimant's position became clearer with the passage of time. As explained by the Administrative Officer in that attachment, in early April 1998, claimant had no intention of relocating to Washington, D.C. because he did not know how long his services would be needed by the OIC. In Attachment Two, the Administrative Officer stated that in late May 1998, claimant's position with the OIC became "'more' permanent" because strong working relationships had developed among claimant, the IC and Deputy IC. Additionally, in May 1998 the IC publicly stated that "there is no end in sight to the investigation." The IC, therefore, requested claimant to continue his employment with the OIC for the indefinite future. The Administrative Officer maintains that claimant's position then changed from a very temporary and uncertain position to a more permanent one, albeit temporary as well.[foot #] 1 By second travel authorization signed on July 1, 1998, the OIC authorized claimant's TDY travel from Los Angeles to Washington, D.C., from July 1, 1998 through September 30, 1998. Again, the OIC deemed claimant's official duty station to be "Los Angeles [California]." The record does not establish whether claimant ever worked in Los Angeles during his TDY periods. The issuance of the two travel authorizations for consecutive periods between April 1 and September 30 indicate, in the absence of ----------- FOOTNOTE BEGINS --------- [foot #] 1 On November 16, 1998, the Board requested from the OIC documents reflecting conversion of claimant's appointment; the Administrative Officer responded by memorandum of December 18 that "the conversion was documented in no other place except that attachment [Attachment Two]." The IC's request in May 1998 that claimant stay with the office on a more or less permanent basis did not change his April appointment. Claimant's appointment remained a permanent indefinite temporary appointment, just as it had been in April. ----------- FOOTNOTE ENDS ----------- evidence to the contrary, that claimant spent most or all of his working time in Washington, D.C. Although the Administrative Officer maintains that claimant's position became more permanent in late May 1998, it was not until July 23, 1998, that claimant signed a one-year service agreement, reflecting his transfer effective on August 10th of that year from his "residence located in Los Angeles" to the OIC "new duty station" in Washington, D.C.[foot #] 2 In that agreement, claimant also agreed to remain in the service of the Government for twelve months following the date of his transfer unless separated for reasons beyond claimant's control. The OIC then issued travel authorizations to claimant dated July 23, August 3, and August 14, 1998, for relocation benefits for claimant and his family, including one- way airfare transportation between Los Angeles and Washington, D.C., temporary quarters subsistence expense, real estate allowances, and transportation and storage of household goods. As in the authorizations for claimant's TDY, the OIC listed Los Angeles as claimant's "official duty station." Discussion It has long been the general rule that, unless provided by statute or regulation having the force of statute, new appointees must bear the expense of moving to their first duty station. Thomas D. Wegner, 68 Comp. Gen. 133, 135 (1988); Cecil M. Halcomb, 58 Comp. Gen. 744, 746 (1979); Donald S. Schneider, 53 Comp. Gen 313 (1973); 22 Comp. Gen. 885, 886 (1943). In Halcomb, the General Accounting Office (GAO) held that the Fish and Wildlife Service of the Department of the Interior could not designate its law-enforcement agents' training site as their first permanent duty station in order to increase the agents' entitlement to relocation expenses. In so concluding, GAO relied on the above-stated rule concerning new appointees and the other well-established principle that the permanent duty station is that site where the major part of the employee's duties are performed and where the employee is expected to spend the major part of his or her time. Two years later, in response to the Federal Bureau of Investigation's (FBI's) request to revisit these issues, the GAO in 60 Comp. Gen. 569 (1981) reaffirmed Halcomb and elaborated its reasoning. The 1981 case involved two issues--whether, in order to ensure agents' eligibility for relocation benefits, the FBI could designate a training site as a permanent duty station, or, in the alternative, could designate the place of appointment as a short duration permanent duty station. The GAO concluded that the FBI could do neither: ----------- FOOTNOTE BEGINS --------- [foot #] 2 The Federal Travel Regulation requires that an employee sign service agreements as a condition of eligibility for reimbursement of authorized relocation expenses. 41 CFR 302- 1.5(a) (1998). ----------- FOOTNOTE ENDS ----------- As explained in 22 Comp. Gen. 869 (1943), the newly appointed employee who performs actual and substantial duty at his place of appointment--as distinguished from job training or completing administrative matters for entry on the rolls--may have this place designated as his permanent duty station. However, in the absence of such actual and substantial duty, the place of appointment or place of training is only a temporary duty station even if the new appointee's permanent duty station is not ascertained until after his appointment or training. If such is the case, the training site may be regarded as the appointee's designated duty station for administrative purposes but not for the purpose of establishing [the appointee's] entitlement to travel and relocation expenses upon subsequent assignment to a permanent duty station. . . . The assignment of agents to a different location--the "home office" for [one] month following training would not establish that location as their first permanent duty station. An employee's official or permanent duty station is a matter of fact and not merely one of administrative designation. It is the place at which [the employee] actually is stationed, the place where [the employee] expects and is expected to spend the greater part of his time. We have long held that an employee may not be assigned to a duty station at which he is not expected to remain for an extended period of time for the purpose of increasing his entitlement to travel and relocation expenses. Id. at 572 (citations omitted). The current statute provides only limited relocation benefits to a new appointee. Agencies are authorized to pay for a new appointee's travel expenses, the travel and transportation expenses of the appointee and his or her immediate family, transportation of the appointee's household goods and personal effects, and transportation under limited circumstances of a privately owned motor vehicle from the appointee's place of residence at the time of selection or assignment to his duty station. 5 U.S.C. 5723 (Supp. II 1996).[foot #] 3 ----------- FOOTNOTE BEGINS --------- [foot #] 3 Until 1991, only appointees to the Senior Executive Service, Presidential appointees paid at or above a GS- 16 level, and other appointees assigned to positions for which the Office of Personnel Management had determined there to be a manpower shortage were entitled to these limited benefits. The class of appointees entitled to limited benefits was broadened by the Treasury, Postal Service and General Government Appropriations Act of 1991 to include a "new appointee . . . to any position." Pub. L. No. 101-509, 206(b)(1), 104 Stat. 1389, 1457 (1990) (codified as amended at 5 U.S.C. 5723(a)(1)). ----------- FOOTNOTE ENDS ----------- The Federal Travel Regulation (FTR) similarly provides that new appointees are eligible for payment of travel expenses (including per diem), transportation for the appointee's immediate family, mileage (if the family's privately-owned vehicle is used), and transportation and temporary storage of household goods (or nontemporary storage of household goods if the appointment is in an isolated location), and transportation of mobile homes. 41 CFR 302-1.10(a), (e). New appointees, however, are not entitled to reimbursement of certain other expenses allowable to transferees: per diem for family members, cost of a house-hunting trip, subsistence while occupying temporary quarters, miscellaneous expense allowance, residence sale and purchase expenses, lease-breaking expenses, and relocation services. 5 U.S.C. 5724a(a), (b)(1); 41 CFR 302-1.2(a)(1), -1.10(f). Federal employees are entitled to relocation benefits when they are transferred "between official stations located within the United States." 5 U.S.C. 5724a(b)(1).[foot #] 4 The FTR defines "official station or post of duty" as that site where the employee regularly reports for work, or, in the case of relocation benefits, as that residence from which the employee regularly commutes to and from work. 41 CFR 302-1.4(k). The current FTR definition of official station or post of duty is consistent with the principle that the official station is the place where the employee actually expects and is expected to spend the greater part of his or her time, and performs actual and substantial duties of the office. In another matter involving the OIC, we concluded that an employee could be paid relocation expenses for her move from Little Rock, Arkansas to Washington, D.C. when she established that Little Rock, Arkansas was in fact her previous official station before the transfer because she regularly reported for duty in Little Rock and commuted from her residence in Little Rock to her workplace. Deborah Gershman, GSBCA 14569-RELO, 98-2 BCA 29,811, at 147,633. The OIC's designation of Los Angeles as claimant's "duty station" in his travel orders did not in fact make Los Angeles claimant's official station for the purpose of increasing claimant's entitlement to relocation benefits. The OIC has not established that claimant performed substantial work in Los Angeles or that Los Angeles was the site at which claimant was expected to spend the majority of his time. Indeed, the OIC's sending claimant immediately after his appointment on TDY to Washington, D.C. for an extended period shows that, if and when claimant's job became as permanent as OIC employment can be, Washington, D.C. was to be his first official or permanent duty ----------- FOOTNOTE BEGINS --------- [foot #] 4 An employee and the employee's family are entitled to en-route travel expenses for travel "between the employee's old and new official station." 5 U.S.C. 5724a(a). ----------- FOOTNOTE ENDS ----------- station. That expectation was confirmed by claimant's subsequent transfer to Washington, D.C. in August 1998. If the OIC could demonstrate that claimant performed actual and substantial duties for the OIC in Los Angeles, during the period April to September 1998, then we would have no basis to question Los Angeles as a proper official or permanent duty station from which claimant was transferred to Washington, D.C. See Thomas D. Wegner, 68 Comp. Gen. at 135. The OIC has not made that showing to the Board. Based upon the record presented to us, as a new appointee, claimant was responsible for bearing the expense of his transfer to Washington, D.C., save for those expenses which are explicitly granted by 5 U.S.C. 5723 and the FTR, 41 CFR 302-1.10(a), (e). Claimant's first official or permanent duty station--Washington, D.C.--was established at the earliest in May 1998 when the IC requested claimant to work more or less permanently for the OIC in Washington, D.C. Los Angeles was not claimant's official duty station from which he could transfer so as to make him eligible for full relocation benefits. __________________________ ANTHONY S. BORWICK Board Judge