Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
________________________
May 11, 2000
________________________
GSBCA 15025-RELO
In the Matter of JAMES T. ABBOTT
James T. Abbott, Los Angeles, CA, Claimant.
Bruce Krasker, Defense Contract Management District East,
Boston, MA, appearing for Defense Logistics Agency.
WILLIAMS, Board Judge.
James T. Abbott, Associate Counsel, Personnel and Ethics,
Defense Contract Management Command, Defense Logistics Agency
(DLA), seeks relocation expenses in conjunction with his
permanent change of station (PCS) due to DLA's relocation of its
El Segundo, California, office to Carson, California. The agency
denied relocation benefits concluding that claimant's move was
not incident to his transfer, because claimant relocated before
he received a travel authorization and moved for personal reasons
to live closer to a freeway. We conclude that the agency
permissibly denied the benefits. The agency possesses broad
discretion in determining entitlement to relocation benefits in
short-distance moves. Although the agency could have paid the
relocation benefits, it is not required to do so, and its
determination here is not an abuse of discretion.
Background
On May 1, 1998, all employees of Defense Contract Management
District West (DCMDW) were notified of the agency's relocation
from El Segundo, California, to Carson, California. The
employees were also given a memorandum outlining the minimum
qualifications for PCS benefits. Employees were notified that
since the new facility was fourteen miles from the current
location, they could submit a worksheet to determine whether they
were entitled to PCS relocation expenses. Specifically, by
memorandum dated May 29, 1998, DCMDW advised employees:
The new facility is 14 miles from the current
district headquarters. Because of the distance, some
employees may be eligible for . . . PCS allowances.
The Joint Travel Regulation[s] (JTR) guidance regarding
PCS is as follows.
Travel, transportation, and other related
allowances, as applicable, will be authorized incident
to a PCS even though the old and new Permanent Duty
Station(s) (PDSs) are located in the same city or area
provided that the transfer:
. is in the interest of the Government,
. is to a new PDS which is at least
10 miles distant from the old PDS,
. is not primarily for the
convenience or benefit of the
employee or at his request,
. relocation of the residence is
incident to the transfer.
Claimant is an attorney and was charged with briefing all
employees about the impending move; he directed the employees not
to incur any costs or sign any agreements until after receiving
an official travel authorization. Nonetheless, claimant himself
elected to move to Los Angeles from West Hollywood prior to the
granting of any PCS approval. Claimant took title to his new
residence in October 1998, some two months before the agency's
move to the new facility. At that time, claimant had not
received an authorization or approval of any PCS costs. Claimant
stated that he "decided to move to a location more convenient to
freeway access and therefore an easier commute."
By letter dated January 26, 1999, the director of human
resources at DCMDW advised claimant that although initially the
district counsel had determined his request for PCS "appeared to
meet the initial eligibility for legal sufficiency based upon the
information provided," upon further review the agency determined
that "no one who submitted a PCS worksheet meets the criteria
under the [Base Realignment and Closure (BRAC)] directives for
payment of PCS."
The letter referred claimant to a February 19, 1997,
memorandum which provided, in pertinent part:
As a general rule, the [DoD] does not expect Base
Realignment and Closure (BRAC) related changes in duty
station of less than 50 miles to require payment of PCS
allowances. That is the basis upon which BRAC budgets
have been developed.
The Joint Travel Regulations (JTR) do recognize
that there are certain circumstances in which distance
is not the primary factor, and allows agencies to
authorize PCS allowances on a case-by-case basis when
the new permanent duty station is at least 10 miles
distant from the old permanent duty station. The JTR
does not confer an entitlement; rather, it allows
agencies to exercise discretion in determining whether
the relocation of an employee's residence is incident
to the change in duty station, considering both
commuting time and distance.
Consistent with general DoD practice, the planning
for Defense Logistics Agency (DLA) activities or tenant
activities relocating short distances as a result of
BRAC has not envisioned payment for permanent change of
station allowance. These relocations generally involve
conditions and circumstances which indicate that no PCS
payments should be authorized, even though the distance
between the former and the new duty stations may exceed
10 miles. On the other hand, it is recognized that
there may be some individual cases which meet the
criteria for authorization of PCS payment. Prior to
approval of any such cases, Primary Level Field
Activities (PLFA) should ensure that the criteria in
the JTR have been properly and consistently applied.
In moving his residence, claimant reduced his commuting time
to the new permanent duty station by approximately twenty-five to
thirty minutes in the morning and thirty to forty minutes in the
evening. Had he remained in his old residence, claimant
estimates that his commute would have increased by approximately
forty-five to fifty minutes.
Originally, the agency denied claimant reimbursement,
because according to the Defense Table of Official Distances
(DTOD) claimant's commuting distance from his old residence to
his new duty station was only 8.1 miles more than his commute
from his old residence to his old duty station. The agency
reasoned that claimant had not met the regulatory requirements
for entitlement since this increase in commuting distance was
less than ten miles and was thus insufficient to support a
conclusion that the relocation was incident to the transfer under
Federal Travel Regulation (FTR) 302-1.7(a). However, JTR C4252,
in effect at the time of claimant's move, provided that distances
are determined from odometer readings. The agency has since
withdrawn that argument recognizing that the DTOD was not
controlling at the time of claimant's move.[foot #] 1
----------- FOOTNOTE BEGINS ---------
[foot #] 1 This rule has changed since claimant's move.
Effective April 1, 1999, the JTR's uniform method for measuring
distances, the Defense Table of Distances, became mandatory.
JTR, Appendix A, Part 1B, defines the DTOD as:
(continued...)
----------- FOOTNOTE ENDS -----------
Instead, the agency agrees with claimant that the applicable
distances should be measured by actual odometer readings, not the
DTOD. The parties agree that using odometer readings the
increase in claimant's one-way commuting distance is
10.7 miles.[foot #] 2
Discussion
Generally, when an agency transfers one of its employees in
the interest of the Government from one permanent duty station to
another, the agency, in accordance with regulatory prescriptions,
is to reimburse the employee for various expenses he incurs in
connection with the move. 5 U.S.C. 5724a (1994 and Supp. IV
1998). When the change of station involves a short distance --
at least ten miles, but within the same metropolitan area --
special rules apply in that the allowances provided by statute
and regulation for relocating employees "shall be authorized only
when the agency determines that the relocation was incident to
the change of official station." 41 CFR 302-1.7(a) (1997);
Vincent F. Arconati, GSBCA 14485-RELO, 98-1 BCA 29,735. This
determination shall take into consideration the circumstances
surrounding a particular case, such as commuting time and
distance between the employee's residence at the time of
notification of transfer and his/her old and new posts of duty,
as well as the commuting time and distance between a proposed new
residence and the new post of duty. Id. The pertinent
regulation expressly provides:
Ordinarily, a relocation of residence shall not be
considered as incident to a change of official station
unless the one-way commuting distance from the old
residence to the new official station is at least ten
miles greater than from the old residence to the old
official station. Even then, circumstances surrounding
a particular case (e.g. relative commuting time) may
suggest that the move of residence was not incident to
the change of official station.
----------- FOOTNOTE BEGINS ---------
[foot #] 1 (...continued)
The DOD standard source for worldwide distance
information based on city to city distance (not zip
code to zip code) replacing all other sources for
computing distance (except airplane).
[foot #] 2 Claimant and the agency agreed to have an agency
employee drive the routes involved. The distances were as
follows:
Old Residence-Old PDS 14.9
Old Residence-New PDS 25.6
____
Difference 10.7
----------- FOOTNOTE ENDS -----------
41 CFR 302-1.7(a); see also JTR C4108.
In the instant case the agency, in denying claimant his
relocation benefits, recognized that claimant reduced his
commuting time and distance by moving, but concluded nonetheless
that claimant's move was not incident to his transfer. The
agency also considered that claimant moved his residence without
the benefit of a travel authorization and before the agency
itself was relocated, and determined that as a matter of personal
preference claimant wanted to be nearer to a
freeway.[foot #] 3 Finally, the agency points out that
claimant, as the attorney in charge of briefing employees whose
office was moving, knew the rules and advised employees not to
incur relocation expenses without the benefit of a travel
authorization.
As this Board and the Comptroller General have noted,
agencies have considerable discretion in authorizing relocation
benefits when old and new duty stations are relatively close
together. E.g., Lisa F. Pierce, GSBCA 14268-RELO, 98-1 BCA
29,510, citing Hon. Ken Calvert, B-256350 (May 4, 1994); John
Patrick Pede, GSBCA 13862-RELO, 97-2 BCA 29,023. The
regulations do not mandate that an agency pay relocation benefits
in short-distance moves, such as the one here, but rather place
the burden on an agency to determine that such benefits are
warranted.
Although the circumstances in this particular case could
have justified the payment of these benefits to Mr. Abbott --
since he did reduce commuting time and distance -- we cannot say
that the agency's determination to the contrary was arbitrary,
capricious, or an abuse of its discretion. As the Comptroller
General recognized in John W. Lacy, 67 Comp.Gen. 336 (1988):
Moreover, even when the ten mile criterion is met, the
agency has broad discretion to consider other
circumstances surrounding a particular case to
determine whether a move is incident to the change of
official station. We do not view the precise
difference between the distances of the old and new
commutes as an inflexible benchmark which, when
exceeding ten miles, entitles the employee to a
determination that the move was made incident to a
----------- FOOTNOTE BEGINS ---------
[foot #] 3 In initially denying claimant benefits, the
agency looked to the February 19, 1997, memorandum stating that
the agency did not generally expect to pay PCS allowances for
BRAC-related relocations of less than fifty miles. In its briefs
filed with this Board, the agency performed a fuller analysis and
considered additional relevant factors. While the agency must
consider these cases individually, and should have done so here
initially, its lateness in doing so does not render the agency's
decision infirm.
----------- FOOTNOTE ENDS -----------
transfer. Rather it is one factor an agency should
consider in making that determination. (citation
omitted).
Here, as in Lacy, the agency considered various factors including
the comparable commuting time and distance and has determined
that the change of residence by Mr. Abbott was not incident to
his transfer. On the record before us, we cannot say that the
agency's determination was clearly erroneous, arbitrary, or an
abuse of discretion.
Decision
The claim is denied.
________________________________
MARY ELLEN COSTER WILLIAMS
Board Judge