August
12, 2009
CBCA
1582-RELO
In the Matter of
EVESTER EDD
Evester Edd, Silver Spring, MD,
Claimant.
Jeremey Lundergan, Farm Service
Agency, Department of Agriculture, Kansas City, MO, appearing for Department of
Agriculture.
SOMERS,
Board Judge.
Background
On August 12, 2006, Evester Edd
resigned a position with the Federal Deposit Insurance Corporation. On September 6, 2006, the Department of
Agriculture, Farm Service Agency, tentatively approved his appointment to a
position located in the Washington, D.C., metropolitan area, upon successful
completion of a background investigation.
By letter dated October 3, 2006, the agency confirmed the appointment
and established that his official start date for the position would be October
15, 2006.
On October 6, 2006, the agency
issued travel orders to Mr. Edd which authorized, among other forms of
relocation benefits, temporary quarters subsistence expenses (TQSE), a
miscellaneous expense allowance, and real estate transaction expenses. Mr. Edd incurred various expenses related to
his move from his home in Roslindale, Massachusetts, to the Washington, D.C.,
area. The agency reimbursed him for TQSE
in the amount of $1720.61.
On October 27, 2008, Mr. Edd
requested an extension of time to submit a relocation voucher for the cost of
moving his household goods. By letter
dated November 10, 2008, the agency granted him sixty additional days to submit
a voucher for moving his household goods.
On March 13, 2009, Mr. Edd
submitted a voucher for the storage and shipment of his household goods and for
the cost of mileage related to his spouse driving her privately owned vehicle
(POV) from Massachusetts to Washington, D.C.
The agency denied Mr. Edd=s claim for reimbursement on the grounds that
his break in service categorizes him as a new hire for the purposes of
relocation allowances, which limits his entitlement to certain relocation
expenses. Additionally, as to the other
expenses for which he would have potentially qualified as a new hire, the claim
was denied on the basis that Mr. Edd failed to file his claim within two years
from the effective date of his appointment, citing the Federal Travel Regulation
(FTR), 41 CFR 301‑2.8 (2006). In
addition, as a new employee, the agency determined that Mr. Edd was not
entitled to TQSE and informed him that he would be required to repay the agency
$1720.61, the amount that he had been erroneously reimbursed.
Mr. Edd has asked this Board to
review the agency=s actions. Mr.
Edd=s claim before the Board, however, seeks relief beyond
that initially claimed before the agency.
In addition to seeking reimbursement for storage and shipment of his
household goods, as well as the costs related to his spouse=s POV travel from the previous residence to the new
residence, Mr. Edd seeks reimbursement for the costs of mailing personal
household goods to the new residence, temporary quarters expenses in the amount
of $6435, local tax paid for the temporary quarters, reimbursement of a
security deposit for an apartment located in Silver Spring, Maryland, costs incurred
for packing materials and related supplies, and other miscellaneous
expenses. In addition, Mr. Edd seeks
reimbursement of $51,000 for a loss allegedly incurred due to the diminished
value of his Massachusetts home. Mr. Edd
believes that he would have sold his home earlier but for the fact that he
believed he would be able to take advantage of the relocation services program
available to transferring employees.
Finally, Mr. Edd asks that the agency waive the $1720.61 debt for the
TQSE.
Discussion
The agency correctly determined
that Mr. Edd was a new employee and therefore could not receive TQSE. The kinds of relocation benefits which are
paid to individuals who move to new locations to take on assignments from
federal agencies are prescribed by statute.
Benefits available to new appointees are provided in sections 5722 and
5723 of title 5 of the United States Code (2006). Benefits available to employees who are transferred
from one duty station to another in the interest of the Government are provided
in sections 5724 and 5724a of title 5.
Under the applicable regulations,
new employees are defined as including not only individuals when first
appointed to government service, but also individuals appointed after a break
in service. An exception to this rule
exists for individuals who resume government service after a break in service
attributable to a transfer of function or reduction in force. 41 CFR 3.1(b). There is no indication in the record that
this exception would apply to claimant. See,
e.g., Debra Jo Dyer, GSBCA 15411-RELO, 01-1 BCA & 31,335; Wendy Castineira, GSBCA 15092-RELO,
00-1 BCA & 30,740 (1999).
Thus, Mr. Edd, who is properly
categorized as a new employee at the time that he assumed his position in
Washington, D.C., is entitled only to those benefits authorized for new
appointees. Agencies are authorized to
reimburse the travel and transportation expenses of a new appointee and his or
her immediate family, the transportation and temporary storage expenses of
household goods and personal effects, and the cost of shipping a POV from the
place of residence at the time of selection to the initial duty station. 5 U.S.C. '
5723. The FTR similarly provides for the
payment of these expenses and makes clear that other expenses, such as
subsistence while occupying temporary quarters, residence sale and purchase
expenses, and miscellaneous expenses, may not be reimbursed for new
appointees. 41 CFR 302-3.2. These regulations have the force and effect
of law. Although it is unfortunate that
Mr. Edd=s travel orders erroneously authorized reimbursement
for various expenses to which he is not entitled, the orders do not create a
right to reimbursement. It is well
established that travel orders which erroneously authorize relocation expenses
to which a new employees is not entitled cannot create a right for
reimbursement in excess of statutory and regulatory entitlements. Richard G. Bebout, CBCA 987-RELO,
08-1 BCA & 33,814; Andrew J. Marks, CBCA 672‑RELO,
07-2 BCA & 33,602; Kevin R. Kimiak,
GSBCA 16641-RELO, 05-2 BCA &
33,007. This is true regardless of
whether the employee relied to his or her detriment on the erroneous
orders. Bebout; Kimiak;
Marlene Lewis, GSBCA 15431-RELO, 01-2 BCA &
31,642.
To the extent that Mr. Edd=s claim includes items to which, as a new employee, he
could properly seek reimbursement, such as expenses related to his spouse=s POV travel from the previous residence to the new
residence; storage of household goods; shipment of household goods by mail;
and packing materials, Mr. Edd failed to file his claim within the regulatory
time limits. Under the regulations, Mr.
Edd should have submitted his claim within two years from the effective date of
his appointment. 41 CFR 302-2.8. As noted previously, Mr. Edd started working
with the agency effective October 15, 2006.
He did not submit his voucher for this expense until March 13, 2009. Accordingly, the agency properly denied his
claim.
As to the other items submitted in
his claim before the Board, although it is clear that Mr. Edd would not be
entitled to be reimbursed for such things as the loss of value in real estate
due to a delayed sale of his previous residence, or for the additional amounts
sought for TQSE, Mr. Edd never submitted those claims to the agency. Therefore, these claims are not properly
considered as part of this appeal.
The claim is denied.
__________________________
JERI KAYLENE SOMERS
Board Judge
The
agency disputes Mr. Edd=s claim for reimbursement for the costs incurred for
mailing these goods on the grounds that his travel orders did not authorize a
separate shipment of household goods.
These goods should have been included with the remainder of claimant=s household goods and shipped under a bill of
lading. In any event, as with his other
claims, even if he had been entitled to reimbursement, Mr. Edd failed to file
his claim within the time limits set by regulation.
Even
with the sixty-day extension granted by the agency for the submission of his
claim for storage of household goods, Mr. Edd=s claim
should have been submitted no later than sixty days from November 10,
2008. Mr. Edd filed his claim after that
date.
