January 22, 2009
CBCA
1370-RELO
In
the Matter of ZAKI M. SAAD
Zaki
M. Saad, Sterling, VA, Claimant.
Robin
M. Fields, Office of the Chief Counsel, Federal Highway Administration, Washington, DC, appearing for Department of
Transportation.
BORWICK, Board Judge.
In
this case, Mr. Zaki Saad, claimant, an employee of the Department of
Transportation, Federal Highway Administration (FHWA), agency, challenges the
agency=s denial of reimbursement of $5000 of costs incurred
before a permanent change of station (PCS) was canceled. We sustain the agency=s denial as it correctly applied the Federal Travel
Regulation (FTR). Had the PCS occurred,
claimant would not have been entitled to reimbursement for the claimed expenses
under a specific entitlement in the FTR or under the miscellaneous expense
allowance (MEA) of the FTR.
Consequently, he is not entitled to reimbursement of those expenses when
the PCS was canceled.
Background
Anticipated
transfer
On
December 15, 2006, the agency confirmed claimant=s
temporary promotion for a period not to exceed two years to a position in the
Office of International Programs (OIP), FHWA, with the duty location in Kuwait
City. The agency advised claimant that
the Aeffective date of [claimant=s] temporary promotion and assignment to Kuwait City
pending appropriate country clearances is tentatively scheduled for February
18, 2007.@ Presumably he
was to be part of an agency team assisting Kuwait in road and bridge
construction. The agency advised that
relocation matters would be handled by the Federal Aviation Administration
offices in Oklahoma, City, Oklahoma.
On
January 12, 2007, the agency issued a PCS authorization granting, among other
benefits, transportation of claimant and his family, non-temporary storage of
18,000 pounds of household goods (HHG), air shipment of seven hundred pounds of
HHG, surface shipment of 7200 pounds of HHG, and ten days of pre-departure
temporary quarters subsistence expense (TQSE).
The authorization stated a duty reporting date of
February 21, 2007, with travel to begin on February 18, 2007.
On
or about January 18, 2007, claimant told the agency in an electronic mail
message that the dates for the move were unrealistic, and that as of the date
of the electronic mail message, he had no contact from the agency=s international office, the security office, or the
medical clinic for clearances. He stated
that he had Ano clue@ who was
in charge of the program or what he was supposed to do. On the same day, the agency responded that
the OIP was working with agency leadership to determine the actual deployment
date and that the date on the PCS travel orders was optimistic. The agency advised that the date shown on the
travel orders would be changed and the orders amended once the actual
deployment date was decided.
During
the month of February 2007, claimant and his family were busy obtaining
security clearances and passport documentation.
On February 26, 2007, claimant advised the agency that after receipt of
the clearances and passports, as well as medical check-ups for him and his
family, he would be ready to move to Kuwait on April 11. In response, on that same day, the agency
stated that it had encountered Asome problems@ with
selected staff obtaining clearances and advised claimant to keep in contact
with the agency=s human resources office for further information.
On
March 15, the agency approved claimant=s
security clearance; on March 22, the agency provided claimant with diplomatic
passports. On March 15, the agency also
issued to claimant its first amended PCS order with a new reporting date in
Kuwait of April 20, 2007.
On
March 27, claimant advised the agency of his anticipated travel date of May 1
and his arrival in Kuwait on May 2. On
that date, the agency issued a second amended PCS order reflecting claimant=s travel and arrival plans in Kuwait. The agency also granted claimant thirty days
of TQSE at his new duty post.
On
March 30, claimant advised the agency that his present employing office was
inquiring about his relocation because it was in the process of filling his
soon-to-be vacated position. Claimant
asked whether there was a chance of his not relocating as planned. The agency advised that the Kuwaiti officials
were adamant about meeting with the American team before deployment and that
those officials would not be in the United States until June or July. The agency told claimant that his relocation
was Aon hold@ and
that it would work with personnel at his old office to keep claimant in his old
position at least until the Kuwaiti officials had conducted their
interviews.
On
July 9, the agency scheduled the individual interviews by the Kuwaiti officials
for July 30 and 31. On August 3, by
electronic mail message, the Acting Director of the OIP advised the Special
Assistant to the Administrator of the FHWA that those officials had approved
five of the six persons interviewed. On
August 8, claimant advised the human resources office assisting him in his
relocation that his relocation had been postponed indefinitely.
On
August 17, the agency advised the prospective members of the agency team that Ain the near future@ there
would be a meeting with the FHWA Administrator to discuss the future of the
program in Kuwait and that after the meeting the agency would be Ain a better position to advise you all of the details
of the deployment and the mission of the
program as a whole.@ The agency
thanked the prospective team members for Atheir
continued patience.@
On
December 20 one member of the agency team asked whether there was any further
information on the positions in Kuwait.
The agency responded that it notified the human resources office that it
would not fill any of the advertised positions because Athe [Kuwait] Minister and Undersecretary have
dramatically changed the nature of our program in Kuwait.@ The agency
stated, AYou should receive an official notice from [human
resources] very soon.@
Purchase of
goods in anticipation of transfer
Claimant
says in January 2007 he commenced conversations with American Embassy employees
in Kuwait on the furniture types and sizes that would be provided for claimant=s use in Kuwait.
Claimant determined that the sizes of the beds were not consistent with
his existing furniture. According to the
reimbursement voucher claimant submitted, on or about January 1, 2007, claimant
purchased bedding and bathroom sets, school uniforms for his children, and
appliances and transformers that were to be used in his residence in
Kuwait. However, a credit card statement
in the record indicates claimant purchased merchandise from a variety of retail
and on-line outlets between January 8, 2007, and June 20, 2007, totaling
$3649.87.
Reimbursement
voucher
On
March 24, 2008, claimant submitted his reimbursement voucher for $5110, seeking
reimbursement of $110 for medical and passport photo expenses and $5000 for Amerchandise purchased for use in new location.@ Claimant recognized
in an undated explanatory memorandum that Aunder
normal circumstances@ such merchandise purchases would not be reimbursable,
but due to the cancellation of the program and his overseas PCS he was now in
possession of goods that were useless to him.
Claimant stated that he Adid not keep any receipts and the merchandise were
over [ninety] days from purchase so we can not return [them].@
On
April 7, 2008, the agency approved reimbursement of the $110 claimed for
medical clearance and passport photographs but rejected reimbursement of the
$5000:
It is not our
policy to reimburse employees for costs associated with purchases made in
anticipation of their move to Kuwait. As
mentioned in the correspondence dated December 15, 2006, from our Human
Resources office, your temporary promotion and assignment to Kuwait was held
pending approval from Kuwait. The Kuwait
Ministry of Public Works did not approve your deployment. Subsequently, your transfer to Kuwait and the
vacancy announcement were both cancelled.
Since the [PCS] did not occur, applying the miscellaneous costs to your
travel order, which was never implemented, is not allowed. Your claim for $5,000 in new merchandise for
use in your new location is not approved.
By
memorandum received by the agency on April 22, claimant requested the agency to
further consider his request. By letter
of August 11, the agency confirmed its denial of the $5000 reimbursement
request, but allowed the cost of electricity converters upon claimant=s submission of suitable documentation, since the cost
of converters is specifically mentioned as an allowable MEA expense by the
FTR. See 41 CFR 302-16.1 (2006).
Discussion
Our predecessor board in handling these cases, the
General Services Board of Contract Appeals (GSBCA), stated the general rule on
canceled transfers:
When an agency
cancels a transfer due to circumstances beyond an employee=s control, it should reimburse the employee for
expenses that it would have reimbursed had the transfer been completed,
provided the employee incurred the expenses before the agency canceled the
transfer, in good faith, and in anticipation of the transfer.
Michael J.
Halpin, GSBCA 14509-RELO, 98-1 BCA & 29,730, at 147,384 (citing Orville H. Myers,
57 Comp. Gen. 447 (1978); Dwight L. Crumpacker, B‑187405 (Mar. 22,
1977)); see also Daniel E. Brown, GSBCA 15647-RELO, 01-2 BCA & 31,617.
As
claimant has recognized, had the transfer to Kuwait been completed, the agency
would not have reimbursed claimant for the bedding and bathroom sets, school
uniforms, and appliances and transformers purchased for use in Kuwait. Reimbursement for such items is not covered
by a specific relocation entitlement of the FTR. Furthermore, reimbursement for these items is
not allowed as part of the MEA. The MEA
does not reimburse the costs or expenses incurred for reasons of personal taste
or preference and not required because of the move. 41 CFR 302-16.202(d). The following are types of costs not covered
by the MEA: (1) cost of newly acquired items, such as the purchase or
installation cost of new rugs or draperies, id. 302-16.203(d); and (2)
costs incurred in remodeling of living quarters, such as the purchase of new
appliances, id. 302-16.203(l).
New bedding, school uniforms, and appliances and transformers are newly
acquired items, which claimant purchased as a matter of personal preference and
are not covered by the MEA.
Furthermore,
despite the existence of the travel orders, at least as early as January 18,
2007, it was unclear whether claimant=s
transfer would actually occur. As early
as January 18, the agency advised claimant that his previously established
transfer date was tentative and that a firm date would be established later. Although the agency allowed claimant to engage
in some pre-transfer activities during the month of February, such as applying
for security clearances and diplomatic passports, at the end of February the
agency advised claimant of Aproblems@ in
obtaining staff clearances creating a further delay in his PCS. Finally, on or about March 30, the agency put
claimant=s PCS to Kuwait on Ahold.@ The agency did
claimant a disservice by not being as forthright as it might have been from the
outset about the tentative nature of the assignment to Kuwait, and we
understand claimant=s frustration.
Nevertheless, it should have been clear to claimant by March 30, 2007,
that the PCS to Kuwait was uncertain, at best.
Before
incurring miscellaneous expenses, an employee is expected to exercise the same
care as a prudent person relocating at personal expense. The agency notes that claimant incurred
$2204.84 of expenses in April, May, and June of 2007, after he was notified
that the relocation was on hold.
Claimant did not act prudently in incurring those expenses.
The
agency acted in accordance with the FTR in denying claimant reimbursement of
$5000. The Board sustains the agency=s denial.
___________________________
ANTHONY
S. BORWICK
Board
Judge
Claimant marked with an AX@ those merchandise purchases presumably associated
with his anticipated relocation.
