Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
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August 15, 2000
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GSBCA 15286-RELO
In the Matter of ROSS K. RICHARDSON
Ross K. Richardson, Denton, TX, Claimant.
Gary D. Johnson, Chief Financial Officer, Office of
Financial Management, Federal Emergency Management Agency,
Washington, DC, appearing for Federal Emergency Management
Agency.
DeGRAFF, Board Judge.
The selection and transfer of an employee pursuant to a
merit promotion program is an action taken in the interest of the
Government unless there is a valid agency regulation to the
contrary. Because there was no such regulation in place here,
the agency should reimburse claimant for his allowable relocation
expenses, provided that he is otherwise eligible to be
reimbursed.
Background
In May 1999, the Federal Emergency Management Agency (FEMA)
posted a vacancy announcement for a position in Texas, which is
part of FEMA s Region VI. Applicants nationwide were eligible to
apply for the position. The announcement did not say whether
FEMA would reimburse the successful applicant for relocation
expenses.
Ross Richardson was a FEMA employee in Missouri, which is
part of FEMA s Region VII. Mr. Richardson applied for the
position in Texas, and FEMA officials told him that he would be
reimbursed for his relocation expenses, provided funds were
available. These officials were from both Regions VI and VII,
and included the selecting official, who was the Director of
Region VI.
FEMA selected Mr. Richardson for the position in Texas.
When FEMA formally offered the position to Mr. Richardson,
someone in FEMA s personnel office told him that FEMA would not
reimburse him for the relocation expenses he would incur in
connection with his transfer. Nonetheless, Mr. Richardson
accepted FEMA s job offer. The position in Texas was at a higher
pay grade than Mr. Richardson's position in Missouri, so he would
receive a promotion when he transferred.
On September 29, 1999, after Mr. Richardson accepted the
position in Texas, FEMA s Washington, D.C. office issued a
memorandum to senior management officials within FEMA in order to
remind them of FEMA s policy regarding the authority to
reimburse employees for relocation expenses. The memorandum
explained that when a position was advertised that might result
in a promotion and applicants from beyond the commuting area were
invited to apply for the position, FEMA s policy was to state on
the vacancy announcement, Permanent Change of Station (PCS) is
not authorized. Apparently, FEMA meant that it would not
reimburse the successful applicant for any relocation expenses.
If the selecting official wanted to be able to reimburse the
successful applicant for relocation expenses, the selecting
official was required to submit a request to FEMA s Chief
Financial Officer (CFO) and obtain approval to reimburse expenses
before issuing the vacancy announcement. If approval was
granted, the vacancy announcement was supposed to state,
Permanent Change of Station (PCS) is authorized for the filling
of this position. By this, FEMA apparently meant that it would
reimburse the successful applicant for relocation expenses.
Mr. Richardson reported for duty in Texas on October 10,
1999. On November 12, 1999, he asked FEMA to reimburse his
relocation expenses. On December 28, 1999, FEMA s CFO denied Mr.
Richardson s request. The CFO explained to Mr. Richardson that
FEMA was denying his request for reimbursement because FEMA told
him when it offered him the position in Texas that it would not
reimburse him for his relocation expenses, and because he
incurred relocation expenses without any written authorization
that they would be reimbursed. The CFO stated that it was FEMA s
policy that reimbursement had to be authorized, in advance, by
the Director of FEMA, after consulting with the Director of
FEMA s Office of Human Resources Management and FEMA s CFO.
After FEMA denied Mr. Richardson s request for
reimbursement, the Director of FEMA s Region VI wrote to the
Director of FEMA concerning Mr. Richardson s situation. The
Director of Region VI stated that he believed that Mr. Richardson
had been caught in the middle of a policy decision, which had
not been fully implemented at the time he relocated. The
regional director said that until the September 29, 1999
memorandum was issued clarifying FEMA s new policy, there had
been no uniform FEMA system for authorizing the payment of
relocation benefits. The Director of Region VII concurred in the
letter written by the Director of Region VI. Consistent with the
views of the two regional directors, Mr. Richardson says that
before the September 29 memorandum was issued, FEMA s policy was
not clear and FEMA's vacancy announcements did not contain any
statement concerning relocation benefits.
After Mr. Richardson asked us to review FEMA s decision to
deny his request for reimbursement, FEMA told us that the
procedure set out in the September 29 memorandum is a
longstanding FEMA policy applicable to merit promotions. FEMA
said that Mr. Richardson s request for reimbursement was not in
accordance with FEMA guidelines that make the selecting official
responsible for notifying the CFO, in advance, whenever a
recruitment action might result in the need for relocation
benefits. FEMA also pointed out that Mr. Richardson accepted the
job in Texas after being told that FEMA would not reimburse his
relocation expenses.
Discussion
By statute, when an employee is transferred in the interest
of the Government from one official duty station to another, the
Government is required to reimburse the employee for some
relocation expenses (travel, transporting household goods, real
estate transactions), and it has the discretion to reimburse the
employee for other relocation expenses (one house hunting trip to
the new duty station, temporary quarters subsistence expenses,
moving a privately owned vehicle to the new duty station). 5
U.S.C. 5724, 5724a, 5727 (1994 & Supp. IV 1998).
Unless there is a valid agency regulation to the contrary,
the selection and transfer of an employee pursuant to a merit
promotion program is an action taken in the interest of the
Government. Darrell M. Thrasher, GSBCA 13968-RELO, 97-2 BCA
29,214; Eugene R. Platt, 59 Comp. Gen. 699 (1980), aff'd on
reconsideration, 61 Comp. Gen. 156 (1981).[foot #] 1
The Comptroller General's reconsideration decision in Platt
provided guidance concerning the kind of regulation that would
allow an agency to determine that such a transfer is not in the
interest of the Government. A regulation should "state the
specific conditions and factors which would be considered" in
determining "in any particular case" whether a transfer is in the
interest of the Government. For example, the regulation might
say that an agency would consider labor market conditions, such
as whether candidates are available locally to fill the position.
In addition, an adequate regulation should require that such
guidance "be clearly communicated in advance and in writing to
all applicants, preferably by a statement on the vacancy
announcement, so that those who applied would do so "with an
understanding of the conditions under which relocation expenses
will or will not be paid." 61 Comp. Gen. at 162.
----------- FOOTNOTE BEGINS ---------
[foot #] 1 Until mid-1996, the Comptroller General resolved
claims for relocation expenses.
----------- FOOTNOTE ENDS -----------
FEMA contends that Mr. Richardson's request for
reimbursement should be denied because it was not in accordance
with FEMA's longstanding policy, reflected in the September 29
memorandum, concerning reimbursement of relocation expenses in
the case of a merit promotion. There are at least two reasons
for rejecting FEMA s contention.
First, we are not convinced that there was any longstanding
FEMA policy in place when FEMA issued the vacancy announcement
and selected Mr. Richardson for his position. Two of FEMA s
regional directors clearly did not know about the policy, which
they described as something new that had not been fully
implemented. The regional directors and Mr. Richardson say that
there was no previous uniform FEMA policy, and in support of
this, Mr. Richardson points out that prior FEMA vacancy
announcements did not contain the language that was required by
FEMA's supposedly longstanding policy. FEMA offered nothing to
rebut the statements of the regional directors and Mr.
Richardson.
Second, and more important, when FEMA issued the vacancy
announcement for the Texas position and when it selected Mr.
Richardson for that position, it had no regulation in place that
would have allowed it to determine that a merit promotion
transfer was not in the interest of the Government. Even if FEMA
had a longstanding policy in place, a longstanding policy does
not take the place of the regulation required by Platt. Although
FEMA says that its policy is summarized in its September 29, 1999
memorandum, FEMA distributed the memorandum to a select group of
addressees who were senior management officials, and did not
publish the memorandum by, for instance, incorporating it into an
agency manual or handbook. The memorandum said that it was
intended to remind the addressees of a FEMA policy, and did not
say that it was intended to establish that policy. We are not
convinced that the September 29 memorandum, which was of limited
distribution and which served only as a reminder to those few who
received it, was a regulation. In addition, the memorandum was
not in effect either when FEMA issued the vacancy announcement
for the position in Texas or when it selected Mr. Richardson for
that position, and so the memorandum does not apply to the
vacancy that Mr. Richardson was selected to fill.
FEMA s second contention is that Mr. Richardson should be
barred from claiming reimbursement for his relocation expenses
because he accepted his job offer after someone in FEMA's
personnel office told him that he would not be reimbursed for
relocation expenses.[foot #] 2 We reject FEMA's
argument for the same reason that the Comptroller General
rejected it when agencies raised it there:
----------- FOOTNOTE BEGINS ---------
[foot #] 2 Of course, Mr. Richardson also accepted the offer
after officials in two FEMA regional offices told him that he
would be reimbursed for his expenses.
----------- FOOTNOTE ENDS -----------
The reimbursement of an employee for relocation
expenses incurred incident to a transfer in the
interest of the Government is a right pursuant to law
and regulations. Thus, the fact that an employee may
evidence his acquiescence in the agency's determination
that he forgo reimbursement of transfer expenses does
not preclude reimbursement if the transfer is found to
be in the interest of the Government.
Bruce E. Stewart, B-201860 (Aug. 27, 1982); accord Platt ; Rudd
and Erickson, B-211910 (Sept. 26, 1983). Because the personnel
office imposed an invalid condition on Mr. Richardon's offer, he
is not bound even if he agreed to accept that condition. In
addition, the absence of a travel authorization does not bar
reimbursement, so the fact that FEMA did not issue an
authorization to Mr. Richardson in advance of his transfer does
not bar his claim. Rudd and Erickson.
Decision
In the absence of an agency regulation to the contrary, we
conclude that Mr. Richardson's transfer was in the interest of
the Government. FEMA should reimburse him for his allowable
relocation expenses, provided that he is otherwise eligible.
____________________________________
MARTHA H. DeGRAFF
Board Judge