Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________________ September 28, 1999 ___________________________ GSBCA 15023-RELO In the Matter of JOSEPH A. SOTO Joseph A. Soto, Ann Arbor, MI, Claimant. Ronald L. Page, Manager, Management Programs Division, Federal Aviation Administration, Department of Transportation, Washington, DC, appearing for Department of Transportation. PARKER, Board Judge. Joseph A. Soto, an employee of the Department of Transportation s Federal Aviation Administration (FAA), was transferred from Long Beach, California to Detroit, Michigan in April 1996. Although Mr. Soto s travel authorization listed as immediate family his twenty-four-year-old daughter and her infant son (Mr. Soto s grandson), the agency has denied reimbursement of their travel expenses on the basis that Mr. Soto s daughter and grandson may not be considered part of his immediate family for travel purposes. Mr. Soto has asked the Board to review the FAA s decision. In response to the FAA s request for a doctor s statement or other medical evidence showing that his adult daughter met the Federal Travel Regulation s (FTR s) definition of immediate family by being physically or mentally incapable of self- support, Mr. Soto submitted only a one-page health insurance authorization form dated September 16, 1996, referring his daughter for x-rays due to severe back pain. The FAA did not deem this document alone sufficient to establish that Mr. Soto s daughter was physically or mentally incapable of self support. To show that his grandson was under the legal guardianship of the employee or the employee s spouse, Mr. Soto submitted a general power of attorney signed by his daughter two years after his reporting date. The document purported to give Mr. Soto and his wife guardianship of their grandson for education, health insurance, residence, tax purposes and another reasonable guardianship as required for my son. Mr. Soto has also submitted documentation showing that he provides health insurance for his grandson and states that he has claimed his grandson as a dependent for tax purposes for the last five years. The FAA did not deem this evidence sufficient to establish that Mr. Soto s grandson was under his legal guardianship at the time of the transfer. Discussion When an employee is transferred in the interest of the Government, he is entitled to take his immediate family with him at Government expense. 41 CFR 302-2.2 (1996). The FTR defines the term immediate family to include certain named individuals who are members of the employee s household at the time he or she reports for duty at the new duty station. The relevant part of the definition reads as follows: Children of the employee or employee s spouse who are unmarried and under 21 years of age or who, regardless of age, are physically or mentally incapable of self- support. (The term children shall include natural offspring; stepchildren; adopted children; grandchildren, legal minor wards, or other dependent children who are under legal guardianship of the employee or employee s spouse; . . . .) 41 CFR 302-1.4(f)(ii). The FAA s determination that Mr. Soto failed to show that his twenty-four-year-old daughter was physically or mentally incapable of self-support at the time of his transfer clearly was correct. In response to the FAA s request for a doctor s statement giving a diagnosis, prognosis, treatment or other evidence that would show his daughter s inability to support herself, Mr. Soto submitted only a referral for an x-ray dated five months after his transfer. We agree with the FAA s judgment that such a document, without more, does not establish that Mr. Soto s daughter was physically incapable of supporting herself. The FAA was also correct that Mr. Soto s grandson did not fall within the FTR definition of immediate family. For a grandchild to be considered a member of an employee s immediate family, he or she must be under legal guardianship of the employee or the employee s spouse. According to the Comptroller General, the Board s predecessor in reviewing federal civilian employee claims for relocation expenses, the question of whether a power of attorney can create a legal guardianship for purposes of establishing entitlement to relocation benefits depends on whether the laws of the state in which the employee resides provide for such arrangements. Kern K. Neiswander, 61 Comp. Gen. 149 (1981) (holding that special power of attorney executed by parent cannot create legal guardianship under Colorado law). Here, Mr. Soto has not pointed us to, nor were we able to find, any provision of California law (Mr. Soto resided in California at the time of his transfer) that would permit Mr. Soto s daughter to appoint a legal guardian for her son without a court order. The problem is compounded by the fact that the power of attorney was executed two years after Mr. Soto s transfer and attempts to appoint Mr. and Mrs. Soto as guardians only for limited purposes. Thus, although Mr. Soto s grandson may be considered to be Mr. Soto s dependent for tax and possibly other purposes, the FAA was correct that he may not be considered immediate family for travel reimbursement purposes. The claim is therefore denied. __________________________ ROBERT W. PARKER Board Judge