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