BNUMBER:  B-270196
DATE:  March 22, 1996
TITLE:  [Letter]

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B-270196

March 22, 1996

Ms. Deborah A. Osipchak
Manager, Financial Services Branch
Federal Aviation Administration
U.S. Department of Transportation
800 Independence Avenue, SW
Washington, DC  20591

Dear Ms. Osipchak:

We refer further to your letter dated October 5, 1995, with 
enclosures.  You seek an opinion regarding the Federal Aviation 
Administration's (FAA) authority to limit the relocation expense 
reimbursement eligibility of employees whose selection for a position 
is contingent upon the availability of permanent change-of-station 
(PCS) funding.

The facts, as briefly described in a memorandum dated September 21, 
1995, from your Manager, Accounting Branch, ASW-42, to the Manager, 
Financial Review Division, ABA-100, are that employees of the FAA, 
upon selection for positions involving a permanent change of station, 
receive an ASW Form 3330-3 "Notice of Selection."  If that selection 
is contingent on the availability of PCS funding, the Notice of 
Selection contains the following statement:

     "Selection and EOD [Entry on Duty] contingent upon availability 
     of PCS funds; therefore, employee is not to incur PCS expenses 
     until travel order is issued.  Expenses incurred prior to date 
     travel order is signed will not be reimbursed by the Government."

The memorandum also states that this Office has ruled that relocation 
expenses incurred by an employee in anticipation of transfer may be 
reimbursed when the travel authorization subsequently issued 
authorizes those expenses based on a previously existing 
administrative intent to transfer at the time the expenses were 
incurred.  Therefore, the question asked is whether the above-quoted 
statement on the Notice of Selection is sufficient to preclude 
reimbursement of any expenses incurred by a selected employee prior to 
issuance of a travel order or notification of cancellation of the 
selection.

We have been advised by FAA officials that FAA has encountered cases 
where employees who received a Notice of Selection had been orally 
assured by their supervisors that they could prepare for their 
transfer, even though their travel authorization had not been issued.  
As a result, they proceeded to incur relocation expenses in 
anticipation of that transfer and some of them have sought 
reimbursement for those expenses even before funding was available and 
their travel authorization is issued.  Others have similarly incurred 
relocation expenses in anticipation of transfer, but because there was 
no PCS funding, their selection and transfer had to be cancelled 
before travel orders were issued.

The authority to reimburse relocation expenses of employees and their 
dependents who are transferred from one station to another for 
permanent duty in the interest of the government is contained in 5 
U.S.C.  sec.  5724 and 5724a (1994), and implementing regulations found in 
chapter 302 of the Federal Travel Regulation (FTR).[1]  Under the 
provisions of the FTR, administrative authorization or approval of a 
transfer is a necessary condition to the government assuming the 
relocation expenses of a transferred employee.[2]  Ordinarily, such 
approval is evidenced by a formal written travel authorization issued 
with sufficient lead time to allow the employee to prepare for his 
move before reporting to his/her new duty station[3] and when issued, 
becomes the primary basis upon which relocation expenses may be 
reimbursed.[4]  However, we have long held that where relocation 
expenses are incurred prior to and in anticipation of a transfer, the 
employee may be reimbursed if the expenses were incurred based on a 
previously existing administrative intention to transfer the employee, 
clearly evident at the time the expenses were incurred, and the travel 
authorization subsequently issued authorizes those expenses.[5]

What constitutes notice of an administrative intent to transfer an 
employee depends on the circumstances in each case.[6]  We have held 
that verbal notice to an employee of his/her tentative selection for a 
new position qualifies,[7] even where the employee's transfer is 
contingent on the occurrence of a particular future event, such as 
higher level approval of an employee selection for a position.[8]  
Similarly, we have found clear intention to transfer an employee where 
there was official notice that all essential functions of an 
installation were to be relocated.[9]  Also, where a selected employee 
sells his or her residence in anticipation of transfer after receiving 
definite notice of that transfer, and a travel authorization is 
subsequently issued pursuant to the Notice of Selection, the employee 
is entitled to be reimbursed for the expenses of selling the 
residence.[10]

In the situation described in the FAA memorandum, the Notice of 
Selection states that the employee has been selected for a new 
position.  This clearly establishes an administrative intent to 
transfer the employee.  Consequently, the current statement in the FAA 
Notice of Selection that "expenses incurred prior to date travel order 
is signed will not be reimbursed by the Government," goes beyond the 
problem to be corrected and would not be enforceable in all cases.  If 
a travel authorization is issued in due course, the employee would be 
entitled to be reimbursed otherwise allowable relocation expenses.  On 
the other hand, if the Notice of Selection is cancelled prior to 
issuance of a travel authorization, a warning statement in the Notice 
of Selection would be sufficient to deny the employee reimbursement 
for expenses incurred prior to cancellation.  Therefore, we recommend 
that the FAA revise the statement in the Notice of Selection.  Since 
only a cancellation of the selection before travel orders are issued 
would defeat the employee's claim for reimbursement of anticipatory 
relocation expenses, we suggest that the following language be used:

     "Selection and EOD contingent upon availability of PCS funds; 
     therefore, employee should not incur PCS expenses until travel 
     order is issued.  In the event that the selection is cancelled 
     prior to issuance of travel orders, any PCS expenses incurred 
     will not be reimbursed by the Government."

Such a warning, however, would not address the problem of the employee 
who incurs relocation expenses after receiving definite notice of 
transfer and then seeks reimbursement for those expenses before travel 
orders are issued.  We note that section 301-11.3(b) of the FTR[11] 
specifically provides that travel vouchers for temporary duty must be 
supported by a copy of the travel authorization in order to be 
reimbursed.  While similar language is not contained in chapter 302 of 
the FTR for relocation travel, section 302-1.3(c) thereof provides 
that the guidelines in section 301-1.5 of the FTR on issuance of 
travel authorizations shall be followed, and section 302-1.4(l) of the 
FTR provides that the effective date of transfer, i.e., reporting for 
duty,[12] shall be used for relocation expense reimbursement purposes.  
Therefore, the FAA may wish to issue its own regulation providing that 
claim vouchers for relocation expenses must be accompanied by a copy 
of the travel authorization and may not be paid until after the 
employee reports for duty at his/her new duty station.

Sincerely yours,

Lowell Dodge
Associate General Counsel

B-270196
March 22, 1996

Digest

Where a notice of selection for a position involving a transfer is 
issued contingent upon availability of permanent change-of-station 
(PCS) funding, the Federal Aviation Administration (FAA) includes a 
statement in the notice of selection that relocation expenses incurred 
prior to date travel orders are issued will not be reimbursed.  The 
statement would be sufficient to preclude reimbursement of such 
expenses when the selection is cancelled prior to issuance of the 
travel order, but not when a travel order is actually issued.  The FAA 
is advised to amend the statement to provide that, if the selection is 
cancelled prior to issuance of travel orders, PCS expenses will not be 
reimbursed.

1. 41 C.F.R. Chapter 302 (1995).

2. 41 C.F.R.  sec.  302-1.3 (1995).

3. 41 C.F.R.  sec.  302-1.3(b) and (c) (1995).

4. 54 Comp. Gen. 993 (1975), at 995.

5. 48 Comp. Gen. 395 (1968); 54 Id. 993, supra, footnote 4; James K. 
Marron, 63 Id. 298 (1984); Joan E. Marci, B-188301, Aug. 16, 1977; 
George S. McGowan, B-206246, Aug. 29, 1984; and Kirk S. Peters, 
B-249451, Jan. 7, 1993.

6. 48 Comp. Gen. 395 (1968), supra.

7. Gerald S. Beasley, B-196208, Feb. 28, 1980, and decisions cited.

8. James H. Hogan, B-191912, Apr. 5, 1979; John J. Fischer, B-188366, 
Jan. 6, 1978; and Stanley N. Hirsch, B-187045, Aug. 3, 1977.

9. Kirk S. Peters, B-249451, Jan. 7, 1993, citing to Orville H. Myers, 
57 Comp. Gen. 447 (1978).  Cf.  Joseph C. Hutchinson, B-182013, May 
14, 1975, affirmed on reconsideration, Sept. 13, 1976.

10. Ronald DeFore, B-227663, Oct. 23, 1987, citing 55 Comp. Gen. 613 
(1976).

11. 41 C.F.R.  sec.  301-11.3(b) (1995).

12. 41 C.F.R.  sec.  301-1.4(l) (1995).