B-134094, NOV. 19, 1957

B-134094: Nov 19, 1957

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THE CLAIM IS FOR THE TRANSPORTATION EXPENSES OF HERSELF AND HER HUSBAND FROM ANCHORAGE. WE HAVE PROCURED AND HAVE BEFORE US THE COMPLETE PERSONNEL FILE OF MRS. WAS THEREAFTER EMPLOYED BY VARIOUS GOVERNMENT AGENCIES AND BY PRIVATE INDUSTRY IN THE UNITED STATES. SHE WAS EMPLOYED IN PRIVATE INDUSTRY IN MIAMI. WAS EMPLOYED BY THE SOCIAL SECURITY ADMINISTRATION UNTIL JUNE 5. GIVING AT THAT TIME AS HER REASON "* * * MY HUSBAND AND I ARE MOVING TO ANCHORAGE. BERNSTEEN WAS HIRED LOCALLY BY THE ANCHORAGE OFFICE OF THE BUREAU OF LAND MANAGEMENT. HER LEGAL OR VOTING RESIDENCE IS SHOWN TO BE THE STATE OF WASHINGTON. BERNSTEEN DID NOT EXECUTE ANY EMPLOYMENT AGREEMENT WHEN SHE WAS HIRED IN ANCHORAGE.

B-134094, NOV. 19, 1957

TO MR. FLOYD E. DOTSON, AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF THE INTERIOR:

YOUR LETTER OF OCTOBER 11, 1957, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT THE VOUCHER THEREWITH SUBMITTED COVERING A REIMBURSEMENT CLAIM FOR $660.10, BY MRS. LORRAINE P. BERNSTEEN, SECRETARY-STENOGRAPHER IN THE ANCHORAGE, ALASKA OFFICE OF THE OFFICE OF THE SOLICITOR, DEPARTMENT OF THE INTERIOR. THE CLAIM IS FOR THE TRANSPORTATION EXPENSES OF HERSELF AND HER HUSBAND FROM ANCHORAGE, ALASKA, TO RHINELANDER, WISCONSIN, AND RETURN, IN CONNECTION WITH VACATION LEAVE UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED.

IN ORDER TO PROPERLY ANSWER YOUR QUESTION, WE HAVE PROCURED AND HAVE BEFORE US THE COMPLETE PERSONNEL FILE OF MRS. BERNSTEEN. ACCORDING TO THIS RECORD, MRS. BERNSTEEN LEFT RHINELANDER, WISCONSIN, IN AUGUST, 1943, AND WAS THEREAFTER EMPLOYED BY VARIOUS GOVERNMENT AGENCIES AND BY PRIVATE INDUSTRY IN THE UNITED STATES. SHE SERVED IN THE OFFICE OF DEFENSE TRANSPORTATION AT AUGUSTA, GEORGIA, FROM AUGUST 14, 1943, TO NOVEMBER 2, 1944; SHE WAS EMPLOYED IN PRIVATE INDUSTRY IN MIAMI, FLORIDA, FROM NOVEMBER 1944 TO NOVEMBER 1945; SHE THEN MOVED TO SEATTLE, WASHINGTON, AND SERVED IN THE OFFICE OF THE VETERANS ADMINISTRATION FROM MARCH 19, 1946, TO MAY 28, 1946; SHE THEREAFTER MOVED TO YAKIMA, WASHINGTON, AND WAS EMPLOYED BY THE SOCIAL SECURITY ADMINISTRATION UNTIL JUNE 5, 1953, WHEN SHE RESIGNED, GIVING AT THAT TIME AS HER REASON "* * * MY HUSBAND AND I ARE MOVING TO ANCHORAGE, ALASKA.'

THE RECORD FURTHER SHOWS THAT ON SEPTEMBER 30, 1953, MRS. BERNSTEEN WAS HIRED LOCALLY BY THE ANCHORAGE OFFICE OF THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR. IN HER APPLICATION (FORM 57) PURSUANT TO THIS EMPLOYMENT, HER LEGAL OR VOTING RESIDENCE IS SHOWN TO BE THE STATE OF WASHINGTON. HER RESIDENCE ON THAT APPLICATION APPEARS AS ANCHORAGE, ALASKA. MRS. BERNSTEEN DID NOT EXECUTE ANY EMPLOYMENT AGREEMENT WHEN SHE WAS HIRED IN ANCHORAGE. THIS SUGGESTS THAT THE EMPLOYING AGENCY CONSIDERED HER A RESIDENT OF ALASKA. ON JULY 1, 1954, MRS. BERNSTEEN BECAME AN EMPLOYEE OF THE OFFICE OF THE SOLICITOR. HER EMPLOYMENT IN THE DEPARTMENT OF THE INTERIOR AT ANCHORAGE HAS BEEN CONTINUOUS SINCE SEPTEMBER 30, 1953.

THE RECORD CONTAINS A MEMORANDUM DATED JANUARY 26, 1956, TO THE REGIONAL SOLICITOR FROM MRS. BERNSTEEN IN WHICH SHE SAYS,"I AM NOT ENTITLED TO VACATION TRAVEL AS I WAS RESIDING AT ANCHORAGE AT THE TIME I WAS EMPLOYED.' ON MAY 20, 1957, MRS. BERNSTEEN PRESENTED ANOTHER MEMORANDUM TO THE FIELD SOLICITOR ON THE SUBJECT OF POSSIBLE HOME LEAVE. THE PERTINENT PORTION OF THAT MEMORANDUM READS AS FOLLOWS:

"FROM JULY, 1948, UNTIL MAY, 1953, MY HUSBAND AND I LIVED IN YAKIMA, WASHINGTON. IN MAY, 1953, WE TERMINATED OUR EMPLOYMENT IN YAKIMA AND RETURNED TO RHINELANDER, WISCONSIN. RHINELANDER IS THE BIRTHPLACE OF MY HUSBAND AND ME AND THE HOME OF OUR IMMEDIATE FAMILIES. IN SEPTEMBER, 1953, WE LEFT RHINELANDER AND CAME TO ANCHORAGE, ALASKA. APPROXIMATELY TWO WEEKS AFTER OUR ARRIVAL IN ANCHORAGE I WENT TO WORK FOR THE BUREAU OF LAND MANAGEMENT AND WORKED CONTINUOUSLY UNTIL THE LEGAL SECTION OF SUCH BUREAU WAS TRANSFERRED TO THE OFFICE OF THE SOLICITOR ON JULY 1, 1954. HUSBAND OBTAINED WORK FOR A PRIVATE CONCERN IN ANCHORAGE. ALTHOUGH WE BOTH HAVE BEEN EMPLOYED IN ALASKA NEITHER OF US AT ANY TIME INTENDED TO MAKE ALASKA OUR PERMANENT RESIDENCE. WE HAVE ALWAYS CONSIDERED RHINELANDER OUR HOME AND INTEND TO RETURN THERE.'

THE RECORD FURTHER SHOWS THAT MR. BERNSTEEN IS NOW WORKING WITH A PRIVATE CONCERN IN ANCHORAGE, ALASKA.

BEFORE MRS. BERNSTEEN LEFT FOR RHINELANDER, WISCONSIN, IN JULY 1957, IT WAS DISTINCTLY UNDERSTOOD BY HER THAT THE QUESTION OF HER RIGHT TO BE REIMBURSED FOR THAT TRIP WOULD BE REFERRED TO THIS OFFICE FOR FINAL DECISION.

YOUR LETTER RAISES THREE QUESTIONS WHICH YOU WISH TO BE ANSWERED (1) NOTWITHSTANDING THE FACT THAT MRS. BERNSTEEN MOVED WITH HER HUSBAND TO ALASKA FOR THE EMPLOYMENT OPPORTUNITIES OF HER HUSBAND AND WAS LIVING THERE WHEN HIRED BY THE GOVERNMENT, MAY YOU ACCEPT HER STATEMENT RESPECTING HER INTENTIONS AS ESTABLISHING HER ACTUAL PLACE OF RESIDENCEIN THE UNITED STATES, AND (2) IF SO, NOTWITHSTANDING THE FACT THAT MRS. BERNSTEEN'S LAST PLACE OF RESIDENCE IN THE UNITED STATES WAS YAKIMA, WASHINGTON, MAY YOU REGARD RHINELANDER, WISCONSIN, IN THE LIGHT OF HER STATEMENT, AS THE PLACE TO WHICH SHE IS ENTITLED TO TRAVEL FOR THE PURPOSES OF HOME LEAVE; AND (3) SHOULD OUR ANSWER TO QUESTION (1) BE IN THE AFFIRMATIVE, CAN THE GOVERNMENT PROPERLY PAY THE EXPENSES OF MR. BERNSTEEN TO RHINELANDER, WISCONSIN, AND RETURN, AS PART OF THE IMMEDIATE FAMILY OF MRS. BERNSTEEN.

THIS MATTER IS GOVERNED BY SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 73-B-3, AS AMENDED BY THE ACT OF AUGUST 31, 1954, PUBLIC LAW 737, 68 STAT. 1008, 5 U.S.C. 73B-3, TOGETHER WITH BUREAU OF THE BUDGET CIRCULAR NO. A-4, DATED MAY 2, 1955, AND ISSUED PURSUANT TO SAID PUBLIC LAW 737. PUBLIC LAW 737 READS IN PART AS FOLLOWS:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (60 STAT. 806; 5 U.S.C. 73B-3), AS AMENDED, IS FURTHER AMENDED BY CHANGING THE PERIOD AT THE END OF THE FIRST SENTENCE TO A COLON AND ADDING THE FOLLOWING: "PROVIDED FURTHER, THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS * * *.'"

THE ANSWER TO YOUR QUESTIONS DEPENDS ON A DETERMINATION OF THE ACTUAL PLACE OF RESIDENCE OF MRS. BERNSTEEN AT THE TIME OF HER EMPLOYMENT BY THE GOVERNMENT. THE PHRASE "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER" IS NOT DEFINED IN PUBLIC LAW 737 AND NEITHER IS IT DEFINED IN THE REGULATIONS OF THE BUREAU OF THE BUDGET IMPLEMENTING THAT LAW. THE PLACE CONSTITUTING THE ACTUAL RESIDENCE MUST BE DETERMINED FROM THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. THE RESPONSIBILITY OF THAT DETERMINATION IS PRIMARILY AN ADMINISTRATIVE ONE, BUT IN DOUBTFUL CASES WE WILL MAKE SUCH DETERMINATION PROVIDED THE COMPLETE FACTS ARE BEFORE US. SEE 35 COMP. GEN. 101.

WHEN CONGRESS IN THIS STATUTE USED THE TERM "ACTUAL PLACE OF RESIDENCE," IT EMPLOYED LANGUAGE WHICH HAS BEEN INTERPRETED BY THE COURTS. ACCORDING TO WEBSTERS' INTERNATIONAL DICTIONARY, THE WORD "ACTUAL" MEANS "PRESENT" OR "REAL" AS OPPOSED TO POTENTIAL, POSSIBLE, OSTENSIBLE, VIRTUAL, SPECULATIVE, CONCEIVABLE, THEORETICAL OR NOMINAL AND THE WORD "ACTUAL" IS SYNONYMOUS WITH ,VERITABLE" AND "TRUE.'

THE CASES WHICH CONCERN THEMSELVES WITH THE MEANING OF THE TERM "ACTUAL RESIDENCE" ARE COLLECTED IN WORDS AND PHRASES VOL. 2 AT PAGES 463-466. EXAMINATION OF THESE CASES INDICATES THAT THE QUESTION OF ACTUAL RESIDENCE IS ONE OF FACT TO BE DETERMINED FROM THE EVIDENCE IN THE CASE. SEE, ALSO, GREER V. GREER, 148 PAC.2D 156; BURKE V. BURKE, 249 PAC. 1110; STRATHMANN ET AL. V. KINKELAER, 233 P. 215.

THE SUPREME COURT OF MASSACHUSETTS IN 1931 HAD BEFORE IT THE QUESTION OF THE MEANING OF "ACTUAL RESIDENCE" AS IT APPEARED IN A FEDERAL STATUTE. THE SUPREME COURT SAID IN CITY OF MARLBOROUGH V. CITY OF LYNN, 176 N.E. 214, AT PAGE 215,

"* * * RESIDENCE IMPORTS SOMETHING OF EXPECTED PERMANENCE IN WAY OF PERSONAL PRESENCE. IT SIGNIFIES INTENDED CONTINUANCE AS DISTINGUISHED FROM SPEEDY CHANGE. THIS NATURAL MEANING OF THE WORD IS ACCENTUATED IN THE PRESENT STATUTE BY THE IMMEDIATELY PRECEDING WORD "ACTUALLY.' THE NATURAL FUNCTION OF THAT WORD IS TO EMPHASIZE THE DOMINANT THOUGHT OF THE WORD OR PHRASE WITH WHICH IT IS COUPLED. KOSHLAND V. COLUMBIA INS. CO., 237 MASS. 467, 475, 130 N.E. 41, AND CASES COLLECTED AND REVIEWED; PARIS V. HIRAM, 12 MASS. 262; WISE V. WHITBURN, (1924) 1 CH.D. 460, 470. IMPORTS REALITY AS DISTINGUISHED FROM FORM, METHOD, HYPOTHESIS, CONJECTURE, OR SURMISE. IT IS THE ANTONYM OF CONSTRUCTIVE, SPECULATIVE, NOMINAL, FICTITIOUS OR FEIGNED. "ACTUALLY RESIDED," THEREFORE MEANS A REAL RESIDENCE, A RESIDENCE EXISTING IN TRUTH. AN EVANESCENT ATTENDANCE DOES NOT SATISFY THE REQUIREMENT OF THOSE WORDS. THIS MEANING CONFORMS TO THE APPARENT AIM OF THE STATUTE. * * *"

WHILE IT IS TRUE THAT MRS. BERNSTEEN IN HER STATEMENT DATED MAY 20, 1957, STATED THAT "WE HAVE ALWAYS CONSIDERED RHINELANDER OUR HOME AND INTEND TO RETURN THERE," NEVERTHELESS THIS STATEMENT IS INCONSISTENT WITH THE EVIDENCE OF RECORD INSOFAR AS IT IS BEING USED TO SUPPORT A DETERMINATION OF "ACTUAL RESIDENCE" UNDER THE STATUTE. WHERE THE DECLARATIONS OF A PARTY AS TO HER INTENTIONS ARE INCONSISTENT WITH HER ACTIONS, SUCH DECLARATIONS MAY BE ACCORDED BUT LITTLE, IF ANY, WEIGHT. 9 R.C.L. P. 558, SEC. 23; 17 AM.JUR. P. 643, SEC. 92; ASHTON V. ASHTON, 169 PAC.2D 565 AT PAGE 567. WE NOTE THAT ACCORDING TO MRS. BERNSTEEN'S STATEMENT AFORESAID, SHE AND HER HUSBAND RETURNED TO RHINELANDER, WISCONSIN, IN MAY, 1953. THE RECORD SHOWS THAT SHE WAS EMPLOYED BY THE SOCIAL SECURITY ADMINISTRATION IN YAKIMA, WASHINGTON, UNTIL JUNE 5, 1953, WHEN SHE RESIGNED, GIVING AT THAT TIME THE REASON THAT SHE AND HER HUSBAND WERE MOVING TO ANCHORAGE, ALASKA. THE FACT OF HER MAKING A VISIT TO RHINELANDER, WISCONSIN, IN 1953, FOR THE PURPOSE OF TAKING CARE OF PROPERTY THEY HAD RETAINED THERE DOES NOT, IN OUR OPINION, INDICATE AN INTENTION TO MAKE OR CONTINUE RHINELANDER HER ACTUAL RESIDENCE, ESPECIALLY IN VIEW OF HER PRIOR STATEMENT OF INTENTION, UPON RESIGNING HER POSITION IN YAKIMA, WASHINGTON. WE BELIEVE THAT MR. AND MRS. BERNSTEEN RELINQUISHED THEIR ACTUAL RESIDENCE IN YAKIMA, WASHINGTON, WITH THE CLEAR INTENT OF ESTABLISHING A HOME AND EARNING A LIVING IN ALASKA AND THAT FACT IS BORNE OUT BY THEIR MOVE TO ANCHORAGE IN SEPTEMBER 1953 AND THEIR ESTABLISHMENT OF AN ACTUAL RESIDENCE THERE. FURTHERMORE, WHEN MRS. BERNSTEEN WAS FIRST EMPLOYED BY THE GOVERNMENT IN ALASKA, SHE HAD, AT THAT TIME, BECOME AN ACTUAL RESIDENT OF ALASKA.

MRS. BERNSTEEN'S POSITION IS THAT SHE IS ENTITLED TO HOME LEAVE ON THE BASIS OF TWO DECISIONS OF THIS OFFICE, NAMELY 34 COMP. GEN. 540 AND 35 COMP. GEN. 270. WE ARE OF THE OPINION THAT THE FACTUAL SITUATIONS IN BOTH THOSE CASES ARE CLEARLY DISTINGUISHED FROM THE RECORD IN MRS. BERNSTEEN'S CASE. 34 COMP. GEN. 540 CONCERNED AN EMPLOYEE WHO WAS LIVING IN HAWAII WHEN HE WAS APPOINTED TO A GOVERNMENT POSITION THERE. PRIOR TO HIS EMPLOYMENT IN HAWAII, HE WAS AN ACTUAL RESIDENT OF EAST ST. LOUIS, MISSOURI. WE ONLY DECIDED IN THAT CASE THAT HE WAS ENTITLED TO HOME LEAVE TO EAST ST. LOUIS AND RETURN,"PROVIDED HIS PLACE OF RESIDENCE, IS IN FACT, EAST ST. LOUIS AS CLAIMED.' (PAGE 542.) HERE, ACCORDING TO THE RECORD, AT THE TIME MRS. BERNSTEEN WAS FIRST APPOINTED IN ALASKA, SHE MADE NO CLAIM WHATSOEVER THAT SHE WAS AN ACTUAL RESIDENT OF RHINELANDER, WISCONSIN, NOR DO WE IN FACT FIND HER SO TO BE.

IN 35 COMP. GEN. 270, THE EMPLOYEE WAS NOT ORIGINALLY EMPLOYED OUTSIDE THE UNITED STATES. HE WAS ORIGINALLY EMPLOYED AT SEATTLE AND ASSIGNED TO A POST AT JUNEAU, ALASKA, AND AT THAT TIME, HIS ACTUAL RESIDENCE WAS SEATTLE, WASHINGTON. IN MRS. BERNSTEEN'S CASE, THE RECORD SHOWS THAT WHEN SHE LEFT YAKIMA, WASHINGTON, SHE AND HER HUSBAND CONTEMPLATED AND DID BECOME ACTUAL RESIDENTS OF ALASKA. IT CERTAINLY MAY BE PRESUMED THAT IF AS A RESULT OF THAT MOVE, SHE WERE UNABLE TO OBTAIN GOVERNMENT EMPLOYMENT THERE, SHE WOULD HAVE BECOME EMPLOYED IN PRIVATE INDUSTRY, JUST AS SHE DID IN 1944 AND 1945 IN FLORIDA. THIS IS SIMILAR TO THE SITUATION REFERRED TO IN THE OPINION IN 35 COMP. GEN. 270 AT PAGE 272, CONCERNING ABANDONMENT OF ACTUAL RESIDENCE IN THE UNITED STATES. HERE THE ABANDONMENT WAS PRIOR, NOT SUBSEQUENT TO AN APPOINTMENT WITH THE GOVERNMENT.

THE PLAIN FACTS ARE THAT MRS. BERNSTEEN LEFT RHINELANDER, WISCONSIN, IN 1943 AND HAS EVER SINCE ACTUALLY RESIDED ELSEWHERE. WHILE THE RECORD DOES NOT SHOW WHETHER THE BERNSTEENS RENT OR OWN A HOME IN ANCHORAGE, ONE OR THE OTHER PRESUMPTION IS PROPER. BOTH MRS. AND MR. BERNSTEEN MAKE THEIR LIVING IN ANCHORAGE. THE RECORD SHOWS THAT PRIOR TO MOVING TO ANCHORAGE, THEY ACTUALLY RESIDED IN YAKIMA, WASHINGTON, AND MRS. BERNSTEEN CLAIMED THAT CITY AS HER VOTING RESIDENCE. WE ARE MINDFUL OF THE FACT THAT MRS. BERNSTEEN WOULD WANT TO REFER TO HER BIRTHPLACE (RHINELANDER) AND OLD HOMESTEAD, AS HOME. BUT THE RECORD SHOWS THAT SHE HAS ELECTED TO MAINTAIN HER ACTUAL RESIDENCE AWAY FROM RHINELANDER SINCE 1943. SEE BURR'S ADM-R V. HATTER, 43 S.W.2ND 26 AT PAGE 28. OUR OPINION IS THAT SHE AND HER HUSBAND NOW ACTUALLY RESIDE IN ANCHORAGE, ALASKA, BY THE TESTS WHICH THE COURTS HAVE APPLIED TO THAT TERM AND THAT ANCHORAGE WAS HER ACTUAL RESIDENCE AT THE TIME OF HER APPOINTMENT. IN CONCLUSION, AFTER CAREFUL CONSIDERATION OF THIS RECORD, TOGETHER WITH THE DECISIONS INTERPRETING "ACTUAL PLACE OF RESIDENCE," WE ARE OF THE OPINION THAT (1) YOU CANNOT ACCEPT MRS. BERNSTEEN'S STATEMENT ALONE AS DETERMINATIVE OF ESTABLISHING HER ACTUAL PLACE OF RESIDENCE IN THE UNITED STATES--- THE ENTIRE RECORD MUST BE CONSIDERED; AND (2) THAT RHINELANDER, WISCONSIN, IS NOT A PLACE TO WHICH SHE IS ENTITLED TO TRAVEL FOR PURPOSES OF HOME LEAVE. IT THEREFORE BECOMES UNNECESSARY FOR US TO ANSWER YOUR THIRD QUESTION.

ACCORDINGLY, THE VOUCHER WHICH, TOGETHER WITH THE PERSONNEL FILE, IS RETURNED MAY NOT BE CERTIFIED FOR PAYMENT.