In the Matter of MARILYN FOURNIER

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.

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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”:

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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.

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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