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B-176687, OCT 13, 1972

B-176687 Oct 13, 1972
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CASILLAS' CHULA VISTA RESIDENCE WAS NOT ENTERED INTO WITHIN ONE YEAR OF HIS TRANSFER TO SAN FRANCISCO THERE IS NO BASIS FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF THAT RESIDENCE AS INCIDENT TO HIS INITIAL TRANSFER FROM CHULA VISTA TO SAN FRANCISCO. CASILLAS' REAL ESTATE EXPENSES COULD BE REIMBURSED ONLY IF THE SALE OF THE CHULA VISTA RESIDENCE WERE TO QUALIFY AS INCIDENT TO HIS TRANSFER FROM SAN FRANCISCO TO DENVER. SAN FRANCISCO MAY NOT BE REGARDED AS A REMOTE AREA WHERE ADEQUATE FAMILY HOUSING IS NOT AVAILABLE. CASILLAS COMMUTED FROM SAN FRANCISCO TO CHULA VISTA ON WEEKENDS AND WAS FREQUENTLY ON OFFICIAL DUTY IN THE SAN DIEGO AREA. OF WHICH CHULA VISTA IS A SUBURB.

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B-176687, OCT 13, 1972

CIVILIAN EMPLOYEE - CHANGE OF STATIONS - SALE OF RESIDENCE DENIAL OF CLAIM BY JOE D. CASILLAS FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF A RESIDENCE AT CHULA VISTA, CALIF., INCIDENT TO A TRANSFER FROM SAN FRANCISCO, CALIF., TO DENVER, COLO. BECAUSE THE CONTRACT FOR SALE OF MR. CASILLAS' CHULA VISTA RESIDENCE WAS NOT ENTERED INTO WITHIN ONE YEAR OF HIS TRANSFER TO SAN FRANCISCO THERE IS NO BASIS FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF THAT RESIDENCE AS INCIDENT TO HIS INITIAL TRANSFER FROM CHULA VISTA TO SAN FRANCISCO. ACCORDINGLY, MR. CASILLAS' REAL ESTATE EXPENSES COULD BE REIMBURSED ONLY IF THE SALE OF THE CHULA VISTA RESIDENCE WERE TO QUALIFY AS INCIDENT TO HIS TRANSFER FROM SAN FRANCISCO TO DENVER. SINCE HE DID NOT COMMUTE DAILY FROM SAN FRANCISCO TO CHULA VISTA, AND SAN FRANCISCO MAY NOT BE REGARDED AS A REMOTE AREA WHERE ADEQUATE FAMILY HOUSING IS NOT AVAILABLE, THE CHULA VISTA RESIDENCE MAY NOT BE REGARDED AS MR. CASILLAS' ACTUAL RESIDENCE LOCATED AT HIS OFFICIAL DUTY STATION.

TO MR. SANCHEZ:

WE REFER TO YOUR LETTER OF AUGUST 1, 1972, REQUESTING OUR CONSIDERATION OF THE CIRCUMSTANCES OF MR. JOE D. CASILLAS' TRANSFERS OF OFFICIAL STATIONS IN REGARD TO HIS CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS FORMER RESIDENCE IN CHULA VISTA, CALIFORNIA.

YOU STATE THAT MR. CASILLAS ACCEPTED A POSITION IN THE OFFICE OF ECONOMIC OPPORTUNITY SAN FRANCISCO REGIONAL OFFICE IN MARCH OF 1970. DURING HIS TOUR OF DUTY IN SAN FRANCISCO HIS FAMILY REMAINED IN THEIR CHULA VISTA HOME SO THAT HIS WIFE, WHO REQUIRED EXTENSIVE MEDICAL TREATMENT, COULD REMAIN UNDER THE CARE OF HER SPECIALIST. MR. CASILLAS COMMUTED FROM SAN FRANCISCO TO CHULA VISTA ON WEEKENDS AND WAS FREQUENTLY ON OFFICIAL DUTY IN THE SAN DIEGO AREA, OF WHICH CHULA VISTA IS A SUBURB.

IN FEBRUARY OF 1972 MR. CASILLAS WAS TRANSFERRED FROM SAN FRANCISCO TO DENVER WHERE HE ASSUMED THE POSITION OF DIRECTOR OF REGION VIII. ASSUME FROM YOUR LETTER THAT SUBSEQUENT TO MOVING TO DENVER MR. CASILLAS SOLD HIS CHULA VISTA RESIDENCE. REIMBURSEMENT OF REAL ESTATE EXPENSES IN CONNECTION WITH THE SALE OF THAT RESIDENCE IS HERE IN QUESTION.

YOU POINT OUT THAT WHILE YOU UNDERSTAND PERTINENT REGULATIONS PROVIDE ONLY FOR REIMBURSEMENT OF REAL ESTATE EXPENSES IN CONNECTION WITH THE SALE OF A RESIDENCE AT AN EMPLOYEE'S OLD DUTY STATION, WHICH IN MR. CASILLAS' CASE IS SAN FRANCISCO, AND WHILE HIS FORMER RESIDENCE IN CHULA VISTA DOES NOT MEET THAT REQUIREMENT, CERTAIN EQUITABLE CONSIDERATIONS ARE HERE PERTINENT. FOR CONSIDERATION, YOU SUGGEST, ARE THE FACTS THAT MR. CASILLAS' FAILURE TO MOVE HIS FAMILY FROM CHULA VISTA TO SAN FRANCISCO WAS A MATTER OF MEDICAL NECESSITY RATHER THAN PERSONAL CONVENIENCE, AND THAT AS OF FEBRUARY 1971 WHEN HIS POSSIBLE TRANSFER TO DENVER WAS FIRST DISCUSSED IT WOULD HAVE BEEN ILL-ADVISED TO HAVE MOVED. ADDITIONALLY, YOU STRESS THAT MR. CASILLAS' ACCEPTANCE OF THE POSITION IN DENVER WAS AT YOUR REQUEST AND AT A TIME WHEN HE WAS CONSIDERING RETURNING TO CHULA VISTA, IN WHICH CASE HE WOULD NOT HAVE SOLD HIS RESIDENCE.

THE REQUIREMENTS THAT MUST BE MET BEFORE REAL ESTATE EXPENSES INCURRED IN TRANSFERRING TO A NEW OFFICIAL STATION CAN BE REIMBURSED ARE SET FORTH IN SECTION 4.1 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, EFFECTIVE SEPTEMBER 1, 1971, WHICH PROVIDES IN PERTINENT PART:

"4.1 CONDITIONS AND REQUIREMENTS UNDER WHICH ALLOWANCES ARE PAYABLE. THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION; PURCHASE (INCLUDING CONSTRUCTION) OF ONE DWELLING AT HIS NEW OFFICIAL STATION; OR THE SETTLEMENT OF AN UNEXPIRED LEASE INVOLVING HIS RESIDENCE OR A LOT ON WHICH A MOBILE HOME USED AS HIS RESIDENCE WAS LOCATED AT THE OLD OFFICIAL STATION; PROVIDED THAT:

"B. LOCATION AND TYPE OF RESIDENCE. THE RESIDENCE OR DWELLING IS THE RESIDENCE AS DESCRIBED IN 1.2I ***.

"D. OCCUPANCY REQUIREMENTS. THE DWELLING FOR WHICH REIMBURSEMENT OF SELLING EXPENSES IS CLAIMED WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION.

"E. TIME LIMITATION. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT (1) AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION ***."

SUBSECTION 1.2I OF CIRCULAR NO. A-56 DEFINES "OFFICIAL STATION" FOR PURPOSES OF ENTITLEMENT TO REAL ESTATE EXPENSES AS FOLLOWS:

"I. 'OFFICIAL STATION' OR 'POST OF DUTY' MEANS THE BUILDING OR OTHER PLACE WHERE THE OFFICER OR EMPLOYEE REGULARLY REPORTS FOR DUTY. (FOR ELIGIBILITY FOR CHANGE OF STATION ALLOWANCES SEE 1.1C AND 1.6).

"WITH RESPECT TO ENTITLEMENT UNDER THESE REGULATIONS RELATING TO THE RESIDENCE AND THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF AN EMPLOYEE, OFFICIAL STATION OR POST OF DUTY ALSO MEANS THE RESIDENCE OR OTHER QUARTERS FROM WHICH THE EMPLOYEE REGULARLY COMMUTES TO AND FROM WORK, EXCEPT THAT WHERE THE OFFICIAL STATION OR POST OF DUTY IS IN A REMOTE AREA WHERE ADEQUATE FAMILY HOUSING IS NOT AVAILABLE WITHIN REASONABLE DAILY COMMUTING DISTANCE THEN RESIDENCE INCLUDES THE DWELLING WHERE THE FAMILY OF THE EMPLOYEE RESIDES OR WILL RESIDE, BUT ONLY IF SUCH RESIDENCE REASONABLY RELATES TO THE OFFICIAL STATION AS DETERMINED BY AN APPROPRIATE ADMINISTRATIVE OFFICIAL."

BECAUSE THE CONTRACT FOR SALE OF MR. CASILLAS' CHULA VISTA RESIDENCE WAS NOT ENTERED INTO WITHIN ONE YEAR OF HIS TRANSFER TO SAN FRANCISCO THERE IS NO BASIS FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF THAT RESIDENCE AS INCIDENT TO HIS INITIAL TRANSFER FROM CHULA VISTA TO SAN FRANCISCO.

ACCORDINGLY, MR. CASILLAS' REAL ESTATE EXPENSES COULD BE REIMBURSED ONLY IF THE SALE OF THE CHULA VISTA RESIDENCE WERE TO QUALIFY AS INCIDENT TO HIS TRANSFER FROM SAN FRANCISCO TO DENVER. IN ORDER TO SO QUALIFY, THAT RESIDENCE MUST BE LOCATED AT THE OLD DUTY STATION AS DEFINED IN SUBSECTION 1.2I, ABOVE, AND BE THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF HIS TRANSFER. HE DID NOT COMMUTE DAILY FROM SAN FRANCISCO TO CHULA VISTA, AND SAN FRANCISCO MAY NOT BE REGARDED AS A REMOTE AREA WHERE ADEQUATE FAMILY HOUSING IS NOT AVAILABLE. IN THE ABSENCE OF EITHER OF THESE CIRCUMSTANCES, THE CHULA VISTA RESIDENCE MAY NOT BE REGARDED AS MR. CASILLAS' ACTUAL RESIDENCE LOCATED AT HIS OFFICIAL DUTY STATION NOTWITHSTANDING THAT FOR REASONS PERSONAL TO HIS FAMILY THE DEPENDENTS REMAINED IN THEIR CHULA VISTA HOME. SEE B 171110, JANUARY 28, 1971, COPY ENCLOSED.

FOR THE FOREGOING REASONS THERE IS NO BASIS ON WHICH WE MAY ALLOW REIMBURSEMENT FOR THE EXPENSES INCURRED BY MR. CASILLAS IN CONNECTION WITH THE SALE OF HIS CHULA VISTA RESIDENCE.

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