B-186711, OCT 7, 1976

B-186711, OCT 7, 1976

EMPLOYEE WHO LIVES IN SALEM, UTAH, MOVED ONE AND ONE-HALF BLOCKS TO NEW HOUSE AFTER HIS OFFICIAL STATION WAS CHANGED FROM PROVO, UTAH, 15 MILES FROM SALEN, TO SALT LAKE CITY, UTAH, 55 MILES FROM SALEM. TRAVEL REGULATIONS PROVIDE THAT IN CASE OF SHORT-DISTANCE RELOCATION, AGENCY SHOULD DETERMINE IF RELOCATION WAS INCIDENT TO CHANGE IN OFFICIAL STATION. AGENCY FOUND THAT EMPLOYEE WAS BUILDING THE NEW HOME BEFORE HE KNEW OF OFFICIAL STATION TRANSFER AND DENIED HIS CLAIM FOR RELOCATION EXPENSES. EMPLOYEE IS NOT ENTITLED TO RELOCATION EXPENSES SINCE AGENCY DETERMINED RELOCATION WAS NOT INCIDENT TO TRANSFER.

DONALD C. COLE - RELOCATION EXPENSES:

MR. R. T. ERICKSON, AN AUTHORIZED CERTIFYING OFFICER OF THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, HAS REQUESTED AN ADVANCE DECISION CONCERNING THE PROPRIETY OF REIMBURSING MR. DONALD C. COLE, AN EMPLOYEE OF THE BUREAU OF RECLAMATION, FOR RELOCATION EXPENSES INCURRED AFTER HIS OFFICIAL STATION WAS TRANSFERRED FROM PROVO, UTAH, TO SALT LAKE CITY, UTAH.

THE RECORDS SHOWS THAT MR. COLE'S DUTY STATION WAS CHANGED ON JULY 22, 1973, FROM PROVO, UTAH, TO SALT LAKE CITY, UTAH, A DISTANCE OF 42 MILES. AT THE TIME OF THIS CHANGE, MR. COLE'S RESIDENCE WAS LOCATED IN SALEM, UTAH, 13 MILES FROM PROVO. ON OCTOBER 20, 1973, MR. COLE MOVED FROM THE HOME HE HAD BEEN RENTING IN SALEM, TO A NEW HOME HE HAD HAD BUILT IN SALEM, WHICH WAS APPROXIMATELY ONE AND ONE-HALF BLOCKS FROM THE OLD HOME. THE DISTANCE FROM SALEM TO SALT LAKE CITY, MR. COLE'S NEW OFFICIAL STATION, IS 55 MILES.

THE NEW HOME IN SALEM TO WHICH MR. COLE MOVED WAS BEING CONSTRUCTED FOR MR. COLE PRIOR TO ANY NOTIFICATION TO HIM THAT HIS OFFICIAL STATION WAS BEING TRANSFERRED. AFTER MR. COLE WAS NOTIFIED OF THE TRANSFER OF OFFICIAL STATION HE DECIDED THAT HE WOULD STILL MOVE TO THE NEW HOME IN SALEM FOR THE FOLLOWING REASONS:

"WHEN NOTIFIED OF MY TRANSFER, I WAS RENTING A HOME IN SALEM AND HAD A NEW HOME UNDER CONSTRUCTION WITHIN THE SAME COMMUNITY. IT WAS MERELY A SHELL OR ABOUT 35% COMPLETE. AFTER NOTIFICATION OF TRANSFER, I COMPARED COSTS OF MOVING INTO HOMES IN OTHER AREAS WITH THE ONE I HAD UNDER CONSTRUCTION. THE SALE OF THE LOT AND PARTIALLY CONSTRUCTED HOUSE WOULD HAVE RESULTED IN A CONSIDERABLE LOSS WHICH WOULD NOT HAVE BEEN REIMBURSED BY THE GOVERNMENT. THEREFORE, I DETERMINED THE ONE UNDER CONSTRUCTION WAS THE MOST ECONOMICAL AND INVOLVED THE LEAST MOVING COSTS."

MR. COLE CLAIMED $1,356.60 CONSISTING OF REAL ESTATE CLOSING COSTS IN CONNECTION WITH CONSTRUCTION OF HIS NEW RESIDENCE IN SALEM, EXPENSES FOR MOVING HIS HOUSEHOLD GOODS FROM HIS OLD RESIDENCE TO HIS NEW RESIDENCE, AND MISCELLANEOUS EXPENSES ALLOWANCE. MR. COLE'S CLAIM WAS DENIED BY THE BUREAU OF RECLAMATION BECAUSE NO TRAVEL AUTHORIZATION WAS EVER ISSUED TO MR. COLE AND BECAUSE THE CONSTRUCTION OF THE NEW RESIDENCE AND MOVEMENT OF HOUSEHOLD GOODS WERE FOUND TO BE NOT INCIDENT TO THE CHANGE OF OFFICIAL STATION. THE BUREAU OF RECLAMATION CONSIDERED THE BELOW IN ARRIVING AT ITS DETERMINATION:

"A. CONSTRUCTION OF THE RESIDENCE BEGAN PRIOR TO ANY NOTIFICATION TO MR. COLE THAT HIS OFFICIAL DUTY STATION WAS TO BE TRANSFERRED.

"B. THE ONE WAY COMMUTING DISTANCE FROM THE OLD RESIDENCE TO THE NEW OFFICIAL DUTY STATION IS MORE THAN 10 MILES GREATER THAN FROM THE OLD RESIDENCE TO THE OLD OFFICIAL STATION. HOWEVER, THE NEW RESIDENCE WAS ONLY 1-1/2 BLOCKS FROM THE OLD RESIDENCE WHICH INDICATES THE EXPENSES WERE NOT CAUSED BY THE EMPLOYEE TRYING TO AVOID A GREATER COMMUTING DISTANCE IN CONNECTION WITH THE TRANSFER."

THE APPLICABLE REGULATIONS WHICH PROVIDE FOR REIMBURSEMENT OF RELOCATION EXPENSES ARE FOUND IN CHAPTER 2 OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7 (MAY 1973). PARAGRAPH 2-1.3 OF THE FEDERAL TRAVEL REGULATIONS PROVIDES IN PERTINENT PART:

"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 ALLOWANCE AS PROVIDED HEREIN ARE PAYABLE IN THE CASE OF (A) TRANSFER OF AN EMPLOYEE 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 REQUEST; THE TRANSFER IS TO A NEW OFFICIAL STATION WHICH IS AT LEAST 10 MILES DISTANT FROM THE OLD OFFICIAL STATION; AND, IN CASE OF A RELATIVELY SHORT DISTANCE RELOCATIO , A DETERMINATION OF ELIGIBILITY IS MADE UNDER THE PROVISIONS OF 2 1.5B(1) * * * ."

PARAGRAPH 2-1.5B(1) OF THE REGULATIONS WITH REFERENCE TO A RELATIVELY SHORT DISTANCE RELOCATION PROVIDES:

"TRANSFERS. WHEN THE CHANGE OF OFFICIAL STATION INVOLVES A SHORT DISTANCE WITHIN THE SAME GENERAL LOCAL OR METROPOLITAN AREA, THE TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES IN CONNECTION WITH THE EMPLOYEE'S RELOCATION OF HIS RESIDENCE SHALL BE AUTHORIZED ONLY WHEN THE AGENCY DETERMINES THAT THE RELOCATION WAS INCIDENT TO THE CHANGE OF OFFICIAL STATION. SUCH DETERMINATION SHALL TAKE INTO CONSIDERATION SUCH FACTORS AS COMMUTING TIME AND DISTANCE BETWEEN THE EMPLOYEE'S RESIDENCE AT THE TIME OF NOTIFICATION OF TRANSFER AND HIS OLD AND NEW POSTS OF DUTY AS WELL AS THE COMMUTING TIME AND DISTANCE BETWEEN A PROPOSED NEW RESIDENCE AND THE NEW POST OF DUTY. ORDINARILY, A RELOCATION OF RESIDENCE SHALL NOT BE CONSIDERED AS INCIDENT TO A CHANGE OF OFFICIAL STATION UNLESS THE ONE- WAY COMMUTING DISTANCE FROM THE OLD RESIDENCE TO THE NEW OFFICIAL STATION IS AT LEAST 10 MILES GREATER THAN FROM THE OLD RESIDENCE TO THE OLD OFFICIAL STATION. EVEN THEN, CIRCUMSTANCES SURROUNDING A PARTICULAR CASE (E.G., RELATIVE COMMUTING TIME) MAY SUGGEST THAT THE MOVE OF RESIDENCE WAS NOT INCIDENT TO THE CHANGE OF OFFICIAL STATION."

WITH RESPECT TO RELATIVELY SHORT DISTANCE RELOCATIONS WE HAVE CONSISTENTLY HELD THAT PROVISIONS, SUCH AS THOSE QUOTED ABOVE, DO NOT ESTABLISH FIXED RULES TO BE APPLIED IN ALL CASES INVOLVING TRANSFERS BETWEEN OFFICIAL STATIONS WHICH ARE RELATIVELY CLOSE TO EACH OTHER. RATHER, THE REGULATION GIVES THE AGENCY BROAD AUTHORITY TO DETERMINE WHETHER AN EMPLOYEE'S MOVE FROM ONE RESIDENCE TO ANOTHER IS IN FACT INCIDENT TO THE CHANGE OF OFFICIAL STATION. UNLESS AND UNTIL SUCH A DETERMINATION HAS BEEN MADE AS REQUIRED BY PARAGRAPH 2-1.3, SUPRA, THERE IS NO BASIS FOR REIMBURSEMENT FOR RELOCATION EXPENSES. 51 COMP.GEN. 187 (1971); B-184029, JANUARY 26, 1976.

WE HAVE HELD THAT SO LONG AS AN EMPLOYEE COMMUTES DAILY TO HIS NEW DUTY STATION FROM THE NEW RESIDENCE, THE FACT THAT THE NEW RESIDENCE IS LOCATED NEAR THE FORMER RESIDENCE WOULD NOT IN ITSELF PRECLUDE REIMBURSEMENT OF RELOCATION EXPENSES. ALSO, THE FACT THAT COMMUTING TIME OR DISTANCE WAS NOT DECREASED WOULD NOT NECESSARILY PREVENT REIMBURSEMENT OF SUCH EXPENSES. HOWEVER, THE AGENCY IS REQUIRED, UPON THE BASIS OF THE VARIOUS FACTORS SURROUNDING THE RELOCATION, TO MAKE A DETERMINATION THAT THE RELOCATION WAS INCIDENT TO THE TRANSFER. 54 COMP.GEN. 751 (1975).

IN THE INSTANT CASE THE BUREAU OF RECLAMATION HAS FOUND THAT MR. COLE'S RELOCATION WAS NOT INCIDENT TO THE TRANSFER OF HIS OFFICIAL STATION. THE RECORD INDICATES NOT ONLY THAT THE NEW RESIDENCE WAS ONLY ONE AND ONE-HALF BLOCKS FROM THE OLD ONE BUT THAT MR. COLE HAD ARRANGED FOR ITS CONSTRUCTION PRIOR TO NOTICE OF TRANSFER AND MOVED INTO IT TO AVOID A MONETARY LOSS. UNDER SUCH CIRCUMSTANCES WE CANNOT STATE THE BUREAU OF RECLAMATION DETERMINATION WAS ARBITRARY OR CAPRICIOUS. THEREFORE, THE VOUCHER WHICH IS RETURNED MAY NOT BE CERTIFIED FOR PAYMENT.