February 21, 2007


                          CBCA 460-RELO


                In the Matter of MARILYN FOURNIER


     Marilyn Fournier, Hanscom AFB, MA, Claimant.

     Ralph Gaspard, Air Force Reserve Command, New Orleans, LA, appearing for
Department of the Air Force.  

PARKER, Board Judge.

                            Background

     When Marilyn Fournier was transferred by the Air Force to New Orleans, Louisiana,
in April 2004, she signed an agreement in which she promised that, in return for the
Government's payment of her relocation expenses, Ms. Fournier would remain in
Government service for at least twelve months unless separated for reasons beyond her
control that would be acceptable to the agency.  The agreement further provided that, in the
event Ms. Fournier failed to serve the minimum amount of time, she would repay the
Government the amount it spent on her relocation.

     After her transfer, Ms. Fournier's husband was unable to find a suitable job in
New Orleans so he decided to accept a job at Kirtland Air Force Base, New Mexico.  On
August 17, 2004, four months after her transfer, Ms. Fournier informed her supervisor that
she was resigning her position effective September 4.  Ms. Fournier moved to New Mexico
to be with her husband and began looking for another job with the Federal Government. 
Unable to find something quickly, Ms. Fournier accepted a job with a contractor that
provided services to the Air Force under contract.  Five months later, she was rehired by the
Government.

     Ms. Fournier has asked the Board to review the Air Force's decision that she did not
comply with the agreement she signed and, thus, must repay the Government for the amount
spent on her relocation.  As discussed below, we find that the Air Force's decision was
correct.

                            Discussion

     The Federal Travel Regulation (FTR) requires, as a condition of having the
Government pay relocation expenses, that transferred employees agree in writing to remain
in the service of the Government for twelve months following the effective date of the
transfer, unless separated for reasons beyond their control that are acceptable to the agency. 
If an employee fails to comply with the agreement, he or she must reimburse to the
Government all relocation costs.  41 CFR 302-2.12 - .14 (2004).

     Ms. Fournier maintains that her husband's relocation caused her to be separated for
a reason beyond her control that should have been acceptable to the agency.  In cases
involving an employee's violation of a service agreement, we have held that because the
determination of whether a reason is beyond the employee's control and acceptable to the
agency is a matter within the discretion of the agency, we will overturn an agency's
determination only if it does not have a reasonable basis.  Amy Oestreich,
GSBCA 16489-RELO, 05-1 BCA  32,852 (2004).  In this connection, we have upheld an
agency's decision that an employee's resignation in order to accompany a transferred spouse
to a new duty location, rather than completing his contractual service commitment, was not
a separation beyond the employee's control.  John A. Bukowski, GSBCA 14724-RELO,
99-1 BCA  30,200 (1998).  We apply the same rule here.  Although sometimes difficult, an
employee's decision to quit his or her job in order to accompany a spouse to a new location
is in the end a personal one, and it is within an agency's discretion to determine that such an
act was neither beyond the employee's control nor acceptable to the agency.

     Ms. Fournier also maintains that, although she worked for a contractor in
New Mexico, she was still in "Government service" because she provided services under
contract to the Government.  The Air Force was correct in rejecting this argument.  A
contractor who performs services for the Government is not in Government service for
purposes of complying with a service agreement.

     In deciding whether an agency could by agreement require a transferred employee to
remain in the service of a specific agency, rather than simply in Government service, the
United States Court of Claims explored the meaning of the term "Government service":

     The statute is clear and unambiguous on its face; however, we note from its
     legislative history that the requirement for remaining in Federal service was
     submitted in a report by the Bureau of the Budget which reads in part as
     follows:

          In order to assure that the moving expenses are not paid to
          employees who do not intend to continue working for the
          Government after they have been moved, the bill provides that
          employees must agree in writing to remain in Government
          service for at least 1 year after they have moved . . . .
     
     . . . .
     
     Section 5721(4) [of title 5 U.S.C.] for the purpose of the subchapter and of
      5724(i) defines "Government" to mean the Government of the United States;
     a fortiori, to remain in "Government service" requires only that the employee
     remain in the service of the Government of the United States for twelve
     months after his transfer.

Finn v. United States, 428 F.2d 828, 831-32 (Ct. Cl. 1970) (emphasis added).  When
Ms. Fournier resigned from her job in the Air Force, she did not "continue working for the
Government" and thus did not "remain in Government service" for purposes of complying
with her service agreement.  The fact that she found employment with a firm that contracts
with the Government did not change that fact.

     Finally, Ms. Fournier argues that, under Air Force regulations, she should have been
granted leave without pay while she looked for Government employment in New Mexico. 
Had she been granted such leave, Ms. Fournier maintains, she would have found a
Government job while on leave and, thus, would  have remained in Government service.  We
reject this contention.  First, there is nothing in the record to indicate that Ms. Fournier
requested leave without pay prior to resigning from Government service.  Second, even
assuming that Ms. Fournier is correct about her right to leave without pay (and we do not
decide that she is; this Board does not decide cases involving pay and leave issues), her
assertion that she would have found Government employment during this period is
speculative.  Even though Ms. Fournier ultimately did find a job with the Government, we
cannot reconstruct with any certainty what would have happened had she been granted leave
and had not first worked as a contractor.
                             Decision

     The agency reasonably decided that Ms. Fournier should repay the cost of her
relocation because she failed to comply with her agreement to remain in Government service
for twelve months after her transfer.  Ms. Fournier's claim is thus denied.




                                   _______________________
                                   ROBERT W. PARKER
                                   Board Judge