B-198403, FEB 3, 1981

B-198403, FEB 3, 1981

DIGEST: EMPLOYEE TRANSFERRED FROM UNITED STATES TO GUAM AND HIS TRAVEL ORDER AUTHORIZED MOVING EXPENSES INCLUDING ALLOWANCES FOR REAL ESTATE EXPENSES. HIS AGENCY DENIED HIS CLAIM FOR THE EXPENSES OF PURCHASING HOME IN GUAM BECAUSE THE AGENCY HAD CONTRACTED FOR RENTAL HOUSING FOR THE EMPLOYEE. THE WRITTEN TRAVEL ORDER AUTHORIZING REAL ESTATE EXPENSES IS TO BE FOLLOWED AND THE EMPLOYEE IS ENTITLED TO BE REIMBURSED FOR THE EXPENSES OF A HOUSE PURCHASE.

ROBERT B. DEADWYLER - REAL ESTATE EXPENSES FOR PURCHASE OF A RESIDENCE IN GUAM:

THIS DECISION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY JOHN C. SHARP, A CERTIFYING OFFICER OF THE FEDERAL HIGHWAY ADMINISTRATION (FHWA) CONCERNING THE CLAIM OF MR. ROBERT B. DEADWYLER FOR REAL ESTATE EXPENSES INCIDENT TO THE PURCHASE OF A HOME IN GUAM.

MR. DEADWYLER TRANSFERRED FROM OKLAHOMA CITY TO GUAM WHERE HE REPORTED FOR DUTY ON JULY 6, 1976. PRIOR TO HIS TRANSFER HE DISCUSSED HOUSING ARRANGEMENTS WITH REPRESENTATIVES OF THE FHWA WHO INFORMED HIM THAT FHWA HAD A CONTRACTUAL ARRANGEMENT WITH THE FEDERAL AVIATION ADMINISTRATION (FAA) FOR HOUSING ON GUAM FOR FHWA EMPLOYEES. MR. DEADWYLER OCCUPIED THE QUARTERS PROVIDED UNDER THE CONTRACT, BUT ON MAY 16, 1977, HE GAVE NOTICE THAT HE WAS MOVING AND HE PURCHASED A NEW RESIDENCE ON JUNE 16, 1977. MR. DEADWYLER SUBMITTED A RECLAIM VOUCHER FOR REAL ESTATE EXPENSES OF $213.90 FOR THE PURCHASE OF HIS HOME IN GUAM.

MR. DEADWYLER'S CLAIM WAS DENIED BY THE FHWA BECAUSE THE AGENCY HAD NOT INTENDED TO AUTHORIZE EXPENSES FOR THE PURCHASE OF A HOME IN GUAM ON HIS TRAVEL ORDER. THE FHWA BELIEVED THAT IT HAD A VERBAL UNDERSTANDING WITH MR. DEADWYLER THAT THE RENTAL HOUSING ARRANGEMENTS WITH THE FHWA WERE ACCEPTABLE TO HIM AND INFORMED HIM THAT EXPENSES INCURRED BY HIM FOR THE PURCHASE OF A HOME WOULD NOT BE REIMBURSED.

IN ORDER TO DETERMINE WHETHER MR. DEADWYLER MAY BE REIMBURSED FOR THE HOUSE PURCHASE EXPENSES IN QUESTION WE MUST EXAMINE HIS TRAVEL ORDER. THE TRAVEL ORDER, UNDER THE SECTION ENTITLED "SPECIAL EXPENSES AUTHORIZED," AUTHORIZES "EMPLOYEE'S MOVING ALLOWANCES UNDER P. L. 89 516, INCLUDING ALLOWANCES FOR MISCELLANEOUS EXPENSES AND REAL ESTATE." PUBLIC LAW 89-516, NOW CODIFIED AT 5 U.S.C. SEC. 5724A (1976), ALLOWS AN EMPLOYEE EXPENSES FOR PURCHASE OF A HOME AT THE OFFICIAL DUTY STATION IF BOTH THE OLD AND NEW OFFICIAL DUTY STATION ARE WITHIN THE UNITED STATES, OR ITS TERRITORIES OR POSSESSIONS. SEE 5 U.S.C. SEC. 5724A(4) (1976). GUAM IS A TERRITORY OF THE UNITED STATES.

THE CONDITIONS TO BE MET FOR REAL ESTATE EXPENSES ARE SET FORTH IN THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 MAY 1973 PARA. 2-6.1. THESE CONDITIONS HAVE ALL BEEN SATISFIED BY MR. DEADWYLER IN THE PURCHASE OF HIS RESIDENCE IN GUAM. THE FHWA DOES NOT DISPUTE THAT HE SATISFIED THE CONDITIONS, BUT THE AGENCY CLAIMS THAT MR. DEADWYLER WAS COMMITTED TO LIVE IN FAA PROVIDED HOUSING AND THAT THE TRAVEL ORDER WAS INTENDED TO APPLY SOLELY TO THE SALE OF HIS HOME IN OKLAHOMA. THE FHWA ACKNOWLEDGES THAT THERE WAS NO CONTRACT BETWEEN DEADWYLER AND FHWA BEYOND THE VERBAL UNDERSTANDING THAT THE FAA HOUSING WAS ACCEPTABLE TO DEADWYLER. MR. DEADWYLER ADMITS THAT HE ACCEPTED THE RENTAL HOUSING FROM THE AGENCY, BUT STATES THAT HE NEVER RELINQUISHED HIS RIGHT TO PURCHASE A HOME.

CLEARLY MR. DEADWYLER'S HOUSE PURCHASE EXPENSES WOULD BE REIMBURSABLE UNDER THE FEDERAL TRAVEL REGULATIONS AND THE TRAVEL ORDER AUTHORIZATION IN THE NORMAL CASE. ALTHOUGH WE UNDERSTAND FHWA'S POSITION ON THIS MATTER, WE FIND NO BASIS FOR CONCLUDING THAT MR. DEADWYLER WAIVED OR RELINGUISHED HIS RIGHT TO BE REIMBURSED FOR THE PURCHASE EXPENSES. HE DID ACCEPT THE HOUSING PROVIDED BY FAA AND RESIDED THERE FOR SOME MONTHS, BUT WE AGREE WITH HIS CONTENTION THAT BY DOING SO HE DID NOT RELINQUISH THE RIGHT TO PURCHASE A HOME. WE HOLD, THEREFORE, THAT MR. DEADWYLER IS ENTITLED TO BE REIMBURSED FOR THE ALLOWABLE COSTS ASSOCIATED WITH THE PURCHASE OF HIS HOME IN GUAM.

ACCORDINGLY, MR. DEADWYLER'S RECLAIM VOUCHER MAY BE CERTIFIED FOR PAYMENT.