B-163955, MAY 20, 1968

B-163955, MAY 20, 1968

TO MR. A. B. DAZELL:

WE REFER TO YOUR LETTER OF APRIL 1, 1968, YOUR REFERENCE 2-363, BY WHICH YOU REQUEST OUR ADVANCE DECISION WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT THE VOUCHER OF MR. JOHN M. GIPE, AN EMPLOYEE OF THE BUREAU OF RECLAMATION, UNITED STATES DEPARTMENT OF THE INTERIOR, TO REIMBURSE HIM CERTAIN EXPENSES HE INCURRED IN MOVING HIS RESIDENCE AFTER HE WAS TRANSFERRED FROM SACRAMENTO, CALIFORNIA, TO AUBURN, CALIFORNIA, EFFECTIVE DECEMBER 4, 1966.

AFTER HIS TRANSFER MR. GIPE CONTINUED TO RESIDE IN HIS RESIDENCE IN SACRAMENTO COMMUTING DAILY TO AUBURN -- A DISTANCE OF APPROXIMATELY 32 MILES -- UNTIL JANUARY 11, 1968. ON THAT DAY HE MOVED FROM SACRAMENTO TO CITRUS HEIGHTS, CALIFORNIA, WHICH IS APPROXIMATELY MIDWAY BETWEEN THE OLD AND THE NEW OFFICIAL STATIONS.

SECTION 1.3 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 WAS AMENDED BY TRANSMITTAL MEMORANDUM NO. 1, APRIL 7, 1967, BY THE ADDITION OF THE FOLLOWING PARAGRAPHS:

"THE TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES MAY BE AUTHORIZED IN CONNECTION WITH A TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER ONLY WHEN THE TRANSFER IS BETWEEN OFFICIAL STATIONS, AS THE TERM IS DEFINED IN SECTION 1.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THUS, THESE EXPENSES AND ALLOWANCES MAY NOT BE AUTHORIZED WHEN THE OLD AND NEW POSTS OF DUTY ARE LOCATED WITHIN THE CORPORATE LIMITS OF THE SAME CITY OR TOWN OR ARE BOTH WITHIN ANOTHER AREA DESCRIBED IN SAID SECTION 1.5.

"WHEN THE OLD AND NEW POSTS OF DUTY ARE WITHIN DIFFERENT OFFICIAL STATIONS BUT ARE ONLY A SHORT DISTANCE APART AND 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 MAY BE AUTHORIZED ONLY WHEN THE AGENCY DETERMINES THAT THE RELOCATION WAS INCIDENT TO THE TRANSFER OF OFFICIAL STATION. SUCH DETERMINATION SHOULD 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 SHOULD NOT BE CONSIDERED AS INCIDENT TO A TRANSFER OF OFFICIAL STATION UNLESS THE ONE- WAY COMMUTING DISTANCE FROM THE OLD RESIDENCE TO THE NEW POST OF DUTY IS AT LEAST 10 MILES GREATER THAN FROM THE OLD RESIDENCE TO THE OLD POST OF DUTY. 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.'

UNDER THOSE PROVISIONS THE AGENCY CONCERNED MUST DETERMINE WHETHER AN EMPLOYEE'S MOVE FROM ONE RESIDENCE TO ANOTHER IS IN FACT INCIDENT TO A TRANSFER BETWEEN OFFICIAL STATIONS WHICH ARE A SHORT DISTANCE APART. THE FACTS PRESENTED IN THIS CASE, PARTICULARLY THE DISTANCE INVOLVED AND THE DELAY IN THE SALE OF THE RESIDENCE AT THE OLD OFFICIAL STATION, APPEAR TO JUSTIFY THE DETERMINATION THAT THE EMPLOYEE'S CHANGE OF RESIDENCE IN JANUARY 1968 WAS INCIDENT TO HIS TRANSFER OF DECEMBER 4, 1966. THEREFORE, PAYMENT OF OTHERWISE ALLOWABLE TRANSFER BENEFITS WOULD BE PROPER IN THIS CASE.

REIMBURSEMENT FOR THE TRAVEL OF THE EMPLOYEE AND HIS WIFE SHOULD BE BASED ON THE TRAVEL PERFORMED INCIDENT TO THE CHANGE OF RESIDENCE. PRIOR TO THE CHANGE OF RESIDENCE MR. GIPE DID NOT INCUR COSTS AS A RESULT OF THE TRANSFER. HIS TRAVEL FROM SACRAMENTO TO AUBURN WAS PERFORMED INCIDENT TO HIS REPORTING TO WORK EACH DAY. ACCORDINGLY, MILEAGE AND PER DIEM FOR THE CLAIMENT AND HIS WIFE MAY BE PAID UNDER SECTIONS 2.1, 2.2 AND 2.3 OF CIRCULAR NO. A-56 ON THE BASIS OF THE TRAVEL PERFORMED ON JANUARY 11, 1968, FROM SACRAMENTO TO CITRUS HEIGHTS.

SECTION 4.1D OF CIRCULAR NO. A-56 AUTHORIZES REIMBURSEMENT OF COSTS INVOLVED IN THE SALE OF THE EMPLOYEE'S RESIDENCE AT HIS OLD OFFICIAL STATION PROVIDED AMONG OTHER THINGS THAT:

"D. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNES WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION.'

SETTLEMENT ON THE SALE OF MR. GIPE'S RESIDENCE AT HIS OLD OFFICIAL STATION DID NOT TAKE PLACE UNTIL MORE THAN ONE YEAR AFTER THE EFFECTIVE DATE OF HIS TRANSFER. THE FILE SUBMITTED CONTAINS EVIDENCE INDICATING THAT THE SETTLEMENT WAS DELAYED BEYOND ONE YEAR BECAUSE OF A DELAY IN OBTAINING VETERANS ADMINISTRATION APPROVAL OF THE LOAN TO THE PURCHASER; HOWEVER, THERE IS NOTHING IN THE FILE TO SHOW THAT THE VETERANS ADMINISTRATION DELAY WAS CAUSED BY LITIGATION. IN THAT CONNECTION WE FIND NO BASIS FOR INTERPRETING THE WORD "LITIGATION" AS IT IS USED IN THE CONTROLLING REGULATION TO HAVE A MEANING OTHER THAN ITS USUALLY ACCEPTED MEANING, I.E., ACTION BEFORE THE COURTS. THEREFORE, ON THE PRESENT RECORD THE COSTS INVOLVED IN THE SALE OF THE EMPLOYEE'S RESIDENCE AT HIS OLD OFFICIAL STATION MAY NOT PROPERLY BE REIMBURSED.

THE VOUCHER WHICH TOGETHER WITH SUPPORTING PAPERS IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT ONLY IN ACCORDANCE WITH THE ABOVE.