Eastman v. United States

33 Fed. Cl. 293, 1995 U.S. Claims LEXIS 74, 1995 WL 233157
CourtUnited States Court of Federal Claims
DecidedApril 20, 1995
DocketNo. 93-562C
StatusPublished
Cited by4 cases

This text of 33 Fed. Cl. 293 (Eastman v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eastman v. United States, 33 Fed. Cl. 293, 1995 U.S. Claims LEXIS 74, 1995 WL 233157 (uscfc 1995).

Opinion

OPINION

ANDEWELT, Judge.

I.

In this civilian pay action, plaintiff, John C. Eastman, seeks reimbursement of certain relocation expenses he incurred as the result of his September 1987 transfer within the United States Commission on Civil Rights (the Commission). The Commission transferred plaintiff from his position in California of Special Assistant to the Commissioner to the position in Washington, D.C., of Director of Congressional & Public Affairs. As a result of this transfer, plaintiff received a promotion from a GS-11 civil service classification to a GM-14 classification. Both of these positions were Schedule C political appointments and thus, plaintiffs promotion was not pursuant to a civil service merit selection program.

The Commission initially determined that plaintiff' was ineligible to recover relocation expenses and denied plaintiffs later request for review of that decision. Plaintiff then [295]*295requested submission of his claim to the General Accounting Office (GAO), and the Claims Group of the GAO concluded that plaintiff was entitled to recover relocation expenses. Upon review, however, the Comptroller General overruled the Claims Group decision and determined that plaintiff was not entitled to reimbursement. Upon reconsideration, the Comptroller General affirmed the denial of reimbursement. Thereafter, plaintiff filed the instant complaint. This action is presently before the court on plaintiffs motion for judgment on the pleadings and defendant’s cross-motion for summary judgment. For the reasons set forth below, both motions are denied.

II.

Reimbursement of federal employee relocation expenses resulting from a transfer from one duty station to another is covered under 5 U.S.C. § 5724. Section 5724 provides, in pertinent part:

(a) Under such regulations as the President may prescribe and when the head of the agency concerned or his designee authorizes or approves, the agency shall pay from Government funds—
(1) the travel expenses of an employee transferred in the interest of the Gov- ' emment from one official station or agency to another for permanent duty, and the transportation expenses of his immediate family, or a commutation thereof under section 5704 of this title;
(2) the expenses of transporting, packing, crating, temporarily storing, draying, and unpacking his household goods and personal effects not in excess of 18,000 pounds net weight[.]
* * * * * *
(h) When a transfer is made primarily for the convenience or benefit of an employee, ... or at his request, his expenses of travel and transportation ... may not be allowed or paid from the Government funds.

Section 2-1.3 of the Federal Travel Regulations (FTR) (May 1973) (codified at 41 C.F.R. § 302-1.3) implements Section 5724. Section 2-1.3 provides, in part:

2-1.3. General provisions.
a. Travel covered. When change of official station or other action described below is authorized or approved by such official or officials as the head of the agency may designate, travel and transportation expenses and applicable allowances as provided herein (see applicability and exclusions in pertinent sections) are payable in the case of:
(1) An employee transferring from one official station to another for permanent duty, Provided that: the transfer is in the interest of the Government and is not primarily for the convenience or benefit of the employee or at his/her request----

(Emphasis added.)

III.

Plaintiff seeks judgment on the pleadings pursuant to RCFC 12(c). In evaluating a motion under Rule 12(c), “all well-pleaded material allegations of the non-moving party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” 2A James W. Moore, Moore’s Federal Practice ¶ 12.15, at 12-140 (2d ed. 1995); see also Atlas Corp. v. United States, 895 F.2d 745, 749 (Fed.Cir.), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

The complaint alleges, and defendant admits, that the Commission promoted plaintiff and transferred him from his position in California to a position in Washington, D.C. A dispute exists, however, as to the circumstances that led to plaintiffs transfer. In his complaint, plaintiff alleges that the Commission recruited plaintiff for the Washington, D.C., position and specifically determined, at the time of plaintiffs transfer, that the transfer was in the government’s interest. Because in its answer defendant, the nonmoving party, disputes both of these contentions, these contentions must be presumed to be false.

Accordingly, for the purposes of evaluating plaintiffs motion for judgment on the pleadings, this court must presume that the [296]*296Commission did not recruit plaintiff for the Washington, D.C., position and that the Commission did not determine that plaintiffs transfer was in the government’s interest. Such presumptions are sufficient to defeat plaintiffs motion. Section 5724 provides for reimbursement of relocation expenses when an employee is transferred “in the interest of the Government” but precludes such reimbursement when a transfer is “primarily for the convenience or benefit of an employee, ... or at [the employee’s] request.” Except for the disputed allegations, nothing in the complaint indicates that plaintiffs transfer was in the government’s interest and not at his request.

Plaintiff contends that whenever an employee’s transfer results in a promotion, the employee necessarily is entitled to reimbursement of travel expenses. Because the parties do not dispute that plaintiffs transfer resulted in a promotion, plaintiff alleges that by virtue of his promotion alone, he is entitled to recover the expenses in dispute. Plaintiff relies upon a series of Comptroller General decisions to support this contention, but upon analysis, these decisions do not aid plaintiff.

In Dante P. Fontanella, B-184251 (July 30, 1975), the Comptroller General articulated the standard for evaluating relocation reimbursement requests under Section 5724, as follows:

Generally ... if an employee has taken the initiative in obtaining a transfer to a position in another location, an agency usually considers such transfer as being made for the convenience of the employee or at his request, whereas, if the agency recruits or requests an employee to transfer to a different location it will regard such transfer as being in the interest of the government. Of course, if an agency orders the transfer and the employee has no discretion in the matter, the employee is entitled to reimbursement of moving expenses.

Id. at 3; see also Michael J. Deangelis, B-192105 (May 16, 1979) (denying reimbursement expenses to an air traffic controller who requested and received a lateral transfer under a noncompetitive placement plan).

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Cite This Page — Counsel Stack

Bluebook (online)
33 Fed. Cl. 293, 1995 U.S. Claims LEXIS 74, 1995 WL 233157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastman-v-united-states-uscfc-1995.