Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________ October 28, 1999 ____________________ GSBCA 15108-RELO In the Matter of KENNETH MARLER Kenneth Marler, Pueblo, CO, Claimant. Anne Polhamus, Acting Director, Financial and Accounting Management, Forest Service, Lakewood, CO, appearing for Department of Agriculture. NEILL, Board Judge. Pursuant to 31 U.S.C. 3529 (Supp. III 1997), the Acting Director of the Financial and Accounting Management Office of the Rocky Mountain Region of the United States Forest Service asks our opinion regarding an employee's claim for transfer of station expenses. Based upon information provided by the agency and by the claimant himself, we conclude that the agency should pay these expenses. Background In April 1994, the Forest Service issued an announcement regarding the possibility of a temporary promotion to the GS-12 position of forester at the Pike and San Isabel National Forests with offices in Pueblo, Colorado. The notice read: This is a temporary promotion or detail opportunity depending on grade level of selectee (time-in-grade requirements apply), not to exceed five years as the project and/or budget allows. Anytime during or at the expiration of the five year limitation, the incumbent is required to return to their former unit into their vacated position or a similar position. Communication with your home unit is necessary and encouraged. The Pike and San Isabel National Forests will be responsible for transfer of station (TOS) costs to this unit and the home unit responsible for return TOS costs. Mr. Kenneth Marler, an employee of the Forest Service who was serving at the time as a GS-11 supervisory forester in Pikes Peak Ranger District in Colorado Springs, applied for the position. Colorado Springs is approximately fifty miles from Pueblo. By letter dated May 9, 1994, Mr. Marler was advised that he had been selected for the position. In addition to advising him of his selection, the letter also stated: Because this position is a temporary promotion, not-to- exceed five (5) years, anytime during or at the expiration of the five-year limitation, you will be required to return to your vacated position or a similar position at the same grade and pay. Mr. Marler was asked to sign a statement at the bottom of this letter specifically acknowledging that he was aware of this condition of the temporary promotion. He was directed to return the letter with his signed statement to the agency personnel office. He did so. The letter made no mention of transfer of station costs, but this was of little import to Mr. Marler since, given the indefinite nature of the new assignment, he decided to remain in residence in Colorado Springs and commute daily to the new duty station. A notification of personnel action (Standard Form 50-B) appointing Mr. Marler to his temporary position was issued with an effective date of May 29, 1994. It states that his "duty station" was Pueblo, Colorado, and, in the remarks section, states: "Temporary position -- Employee informed in advance of the reasons for and the conditions of the temporary promotion." Mr. Marler eventually remained in his temporary GS-12 position for over four years. Once the agency completed its reorganization effort, the position was identified as a permanent position to be filled. In February 1999, the position was advertised under the Forest Service merit promotion program. Mr. Marler applied for the position and was selected. Now that he has been selected on a permanent basis for the position which until recently was only temporary, Mr. Marler and his wife would like to move from Colorado Springs to a location closer to Pueblo. He has prepared and submitted a request for relocation expenses. The agency, however, is uncertain whether these expenses can be authorized and for this reason has asked our opinion. Discussion The approving official to whom Mr. Marler presented his request is disposed to authorize relocation based on current provisions in the Federal Travel Regulation (FTR), namely, FTR 302-1.200 and 302-1.228, which define temporary change of station (TCS) and indicate that an agency may pay a wide variety of relocation expenses to an employee when he or she becomes permanently assigned to what was previously a temporary official station. These particular provisions were added to the FTR effective March 1997. Nevertheless, before granting Mr. Marler's request, the local approving official sought the approval of the agency's regional office. Officials in the regional office have questioned the proposed authorization. They note that the "stumbling block" is that Mr. Marler's official duty station for the last five years has been at Pueblo. They are understandably reluctant to authorize relocation expenses for an employee whose present permanent duty station is unchanged from what it has been for nearly five years. They also are of the opinion that the changes in the FTR regarding TCS and relocation benefits which an agency may provide when a temporarily assigned employee becomes permanently assigned are applicable only to individuals undergoing TCS on or after the effective date of these changes. Since Mr. Marler was given his temporary assignments prior to that date, the agency's regional office does not consider him eligible for relocation benefits. The term "temporary change of station" or "TCS" was introduced into the FTR in March 1997 after enactment of the Federal Employee Travel Reform Act of 1995, Pub. L. No. 104-201, 1701-1725, 110 Stat. 2752-60 (1996). This statute created a new category of assignment for federal employees, the "extended assignment," and established special provisions for reimbursing an employee, who is on such an assignment, for relocation expenses. Id. 1716, 110 Stat. 2756 (adding new section 5737 to title 5 of the United States Code). In implementing the statute at subparts C and D of 41 CFR pt. 302-1, the FTR calls the "extended assignment" a "temporary change of station" or "TCS." 62 Fed. Reg. 13,770-74 (1997); see Chris W. Giggey, GSBCA 13979- RELO, 97-2 BCA 29,312, at 145,756 n.1. We agree with the officials at the agency's regional office that the 1997 revisions of the FTR are not applicable to Mr. Marler. When published, these revisions were expressly said to apply to employees who reported to duty at their new official station on or after March 22, 1997. 62 Fed. Reg. 13,771. The effective date of Mr. Marler's appointment to Pueblo was May 29, 1994. The answer to the agency's question, therefore, must be found in the regulations as they read then, not as they currently read. Generally speaking, under regulations in effect prior to the introduction of the notion of a TCS into the FTR, travel and transportation costs incurred by federal employees for which the Government would be responsible fell within two categories. The first was temporary duty (TDY) while on official business away from an employee's designated post of duty (governed by subchapter I of chapter 57 of title 5, U.S. Code). The second was permanent change of station (PCS), i.e. relocation from one permanent duty station to another (governed by subchapter II of the same chapter of the U.S. Code). Chris W. Giggey, 97-2 BCA at 145,753. The threshold question to be addressed here, therefore, is whether the initial assignment of Mr. Marler to Pueblo should be considered a permanent change of station or temporary duty or detail. Like the General Accounting Office (GAO), which previously decided cases such as this, we consider the question of whether an assignment to a particular location should be considered PCS or TDY to be a question of fact best decided on a case-by-case basis. In deciding such an issue, one traditionally looks at the orders directing the assignment, the duration of the assignment and the nature of the duties to be performed. Jimmy D. Graves, GSBCA 14332-RELO, 98-1 BCA 29,670; Rodney C. Lowe, GSBCA 14332-RELO, 97-1 BCA 28,962. In our opinion, the assignment of Mr. Marler to Pueblo should be viewed as a detail or TDY assignment rather than a permanent change of station. We find no evidence in the record of orders being issued which officially transferred him from Colorado Springs to Pueblo. Neither would we expect any given the nature of the assignment. The matter was handled through the issuance of an SF-50-B which expressly notes the temporary character of the new assignment. In considering the duration of Mr. Marler's assignment, we recognize that he remained detailed to his temporary position at Pueblo for over four years. Nevertheless, the agency could not have been clearer regarding the temporary nature of his position. The job announcement made this clear. "Anytime . . . during the five year limitation" the incumbent could be required to return to the position he or she had previously vacated or to a similar position. The letter advising Mr. Marler of his selection likewise stressed the temporary character of the assignment and even required him to acknowledge this fact in writing. The SF- 50-B also made express reference to the fact the employee was "informed of the reasons for and the conditions of the temporary promotion." It is difficult to imagine how anyone aware of these express cautions and admonitions could reasonably conclude that this assignment involved a permanent change of station. In addition, the claimant has provided us with an excerpt from the agency's own travel regulations. One provision in these regulations states that when an employee is to be detailed for a substantial period (usually more than a year) a cost comparison will be prepared to determine whether the employee should be relocated rather than detailed. Mr. Marler advises us that he is not aware of any such cost comparison having been made and we find nothing in the record suggesting that this did occur. This too persuades us that, at the time of Mr. Marler's assignment to Pueblo in 1994, the agency did not look upon the assignment as being one of significant duration. Finally, the temporary nature of Mr. Marler's assignment also colored the nature of the duties to be performed, inasmuch as they were obviously duties associated with a position already officially designated as temporary. There are, of course, some questions which arise if one characterizes Mr. Marler's assignment as TDY rather than a PCS. First among these is the fact that the assignment itself ultimately was, in fact, one of considerably long duration. Such assignments generally should be brief. Nevertheless, in the past, GAO recognized, on more than one occasion, that there were no hard and fast rules on how long a temporary assignment could last. It is well established that these assignments can, owing to unique circumstances, be of considerable length. Bureau of Alcohol, Tobacco and Firearms, B-255767 (May 2, 1994); Edward W. DePiazza, 68 Comp. Gen. 465 (1989). We consider GAO's approach to this issue sound and follow it here. The circumstances of Mr. Marler's case are unique. As we have already seen, from the start, his position was understood to be tentative and provisional. Only when the agency's reorganizational efforts neared completion was a decision made to render the position permanent. In retrospect the assignment may appear to have been imbued with a certain degree of permanence. We do not believe, however, that this was obvious to the agency officials at the time. What of questions concerning a per diem allowance for Mr. Marler if his initial assignment to Pueblo is deemed to be temporary duty? Is he thus entitled to a per diem for the period in question? We think not. Under the FTR in effect at the time, employees were not entitled to per diem within the vicinity of the place of abode (home) from which they commuted daily to their official duty station. 41 CFR 301-7.5(a) (1994). It would appear, from comments submitted by Mr. Marler himself, that both he and his supervisor considered Colorado Springs to be within the local commuting area of Pueblo. Accordingly, he would not be a candidate for per diem. What of Mr. Marler's costs of traveling from his home in Colorado Springs to his temporary duty station in Pueblo? Are these reimbursable if he is deemed to be on temporary assignment to Pueblo? It has been held that it is within the discretion of an agency to award an employee the cost of travel between his residence and temporary duty location within or near his permanent duty station. See Kenneth L. Peck and Mark N. Snow, B-198887 (Sept. 21, 1988). This discretion, however, is subject to certain regulatory restraints. See 41 CFR 301-2.2(e) (1994). In this particular case, if a claim were to be presented, given the claimant's recognition that the temporary duty station at Pueblo was within the local commuting area and given his willingness to make that commute, we think it unlikely that the agency would, in its discretion, be disposed to grant these costs since they appear to be nothing more that normal commuting costs. In short, it is our recommendation that the agency look upon Mr. Marler's initial assignment to Pueblo as temporary duty and consider that his permanent duty station was changed from Colorado Springs to Pueblo only after he was selected for a permanent position. Because he first reported to his official duty station, albeit a temporary one, prior to March 22, 1997, we agree with the officials of the agency's regional office that the revisions of the FTR regarding temporary change of station are inapplicable. Nevertheless, based on the regulatory scheme in effect prior to those revisions, for the reasons stated herein, we still consider Mr. Marler eligible for the relocation benefits in view of his recent permanent change of station. _____________________ EDWIN B. NEILL Board Judge