B-204626.OM, MAY 28, 1982

B-204626.OM: May 28, 1982

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EMPLOYEE MAY BE REIMBURSED EXPENSES OF SALE AS CLEARLY EVIDENT ADMINISTRATIVE INTENT TO TRANSFER EMPLOYEE EXISTED AT TIME EXPENSES WERE INCURRED. AFMD - CLAIMS GROUP (ROOM 5858): RETURNED IS YOUR FILE Z-2808567. COOPER EXISTED AT THE TIME HE SOLD HIS FORMER RESIDENCE AND THAT HE IS. COOPER IS AN EMPLOYEE OF THE AIR FORCE WHOSE FORMER DUTY STATION WAS WHITE SANDS MISSILE RANGE. COOPER'S OFFICE AT WHITE SANDS MISSILE RANGE WAS STAFFED BY 16 EMPLOYEES. THE STAFFING LEVEL WAS CONTINUALLY REDUCED. COOPER'S WERE TENTATIVELY IDENTIFIED FOR REDUCTION. HE RECEIVED A NOTICE THAT THE POSITION WHICH HE HAD BEEN OFFERED AT HOLLOMAN HAD BEEN RECLASSIFIED TO ANOTHER JOB SERIES AND WAS INFORMED THAT A REDUCTION-IN- FORCE NOTICE WOULD BE FORTHCOMING.

B-204626.OM, MAY 28, 1982

SUBJECT: REAL ESTATE EXPENSES - RENE V. COOPER - Z-2808567 - B-204626-O.M. DIGEST: EMPLOYEE SOLD RESIDENCE AT OLD DUTY STATION DURING PERIOD BETWEEN CANCELLATION OF FIRST REDUCTION-IN-FORCE NOTICE AND ISSUANCE OF A SECOND NOTICE WHICH RESULTED IN HIS TRANSFER. EMPLOYEE MAY BE REIMBURSED EXPENSES OF SALE AS CLEARLY EVIDENT ADMINISTRATIVE INTENT TO TRANSFER EMPLOYEE EXISTED AT TIME EXPENSES WERE INCURRED.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS YOUR FILE Z-2808567. BY LETTER OF JUNE 11, 1981, MR. RENE V. COOPER, THROUGH HIS ATTORNEY, APPEALED THE SETTLEMENT ISSUED JULY 5, 1979, WHICH DENIED HIS CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN SELLING A RESIDENCE AT HIS FORMER DUTY STATION. UPON REVIEW WE FIND THAT A CLEARLY EVIDENT ADMINISTRATIVE INTENT TO TRANSFER MR. COOPER EXISTED AT THE TIME HE SOLD HIS FORMER RESIDENCE AND THAT HE IS, THEREFORE, ENTITLED TO REIMBURSEMENT FOR PROPERLY ALLOWABLE COSTS ASSOCIATED WITH THAT SALE.

MR. COOPER IS AN EMPLOYEE OF THE AIR FORCE WHOSE FORMER DUTY STATION WAS WHITE SANDS MISSILE RANGE, NEW MEXICO. IN 1971 MR. COOPER'S OFFICE AT WHITE SANDS MISSILE RANGE WAS STAFFED BY 16 EMPLOYEES. DUE TO AN ORGANIZATION DOWNGRADE WHICH OCCURRED THEREAFTER, THE STAFFING LEVEL WAS CONTINUALLY REDUCED. IN OCTOBER 1976, THE FINAL 6 CIVILIAN POSITIONS INCLUDING MR. COOPER'S WERE TENTATIVELY IDENTIFIED FOR REDUCTION. NOVEMBER 3, 1976, MR. COOPER RECEIVED A NOTICE OF REASSIGNMENT WITHIN HIS COMPETITIVE LEVEL WHICH OFFERED HIM A POSITION AT HOLLOMAN AIR FORCE BASE, NEW MEXICO, EFFECTIVE JANUARY 16, 1977. ON DECEMBER 14, 1976, HE RECEIVED A NOTICE THAT THE POSITION WHICH HE HAD BEEN OFFERED AT HOLLOMAN HAD BEEN RECLASSIFIED TO ANOTHER JOB SERIES AND WAS INFORMED THAT A REDUCTION-IN- FORCE NOTICE WOULD BE FORTHCOMING. A REDUCTION-IN-FORCE NOTICE, ALSO DATED DECEMBER 14, WAS SENT TO MR. COOPER. THIS NOTICE, EFFECTIVE FEBRUARY 20, 1977, OFFERED HIM A POSITION AT HOLLOMAN AT A LOWER GRADE WITH SAVED PAY. ON DECEMBER 29, 1976, HE WAS NOTIFIED THAT THE EFFECTIVE DATE OF THE DECEMBER 14 REDUCTION IN FORCE HAD BEEN CHANGED TO MARCH 31, 1977.

IN LIGHT OF HIS PENDING TRANSFER, MR. COOPER ENTERED INTO A 3-MONTH LISTING CONTRACT WITH A REALTOR ON JANUARY 6, 1977. ON FEBRUARY 2, MR. COOPER WAS NOTIFIED THAT THE REDUCTION IN FORCE HAD BEEN CANCELLED. BECAUSE OF THE VARIOUS ACTIONS PRIOR TO FEBRUARY 2 AND THE CONTINUING INDICATIONS HIS POSITION WOULD BE ABOLISHED AND THAT HE WOULD BE TRANSFERRED AND BECAUSE OF THE DETERIORATING REAL ESTATE MARKET, HE CONTINUED THE LISTING. A SALES CONTRACT WAS SIGNED ON MARCH 23, 1977, WITH CLOSING JUNE 1, 1977. AT THAT TIME MR. COOPER MOVED INTO RENTAL QUARTERS AT WHITE SANDS.

VIA A REQUEST FOR PERSONNEL ACTION, DATED JULY 20, 1977, EFFECTIVE JULY 1, 1977, MR. COOPER WAS NOTIFIED THAT HIS POSITION HAD BEEN ABOLISHED IN APRIL 1977 PER ACTION OF HIGHER HEADQUARTERS. ON JULY 29, 1977, HE RECEIVED A REDUCTION-IN-FORCE NOTICE WITH THE OFFER OF A LOWER GRADE POSITION AT HOLLOMAN AIR FORCE BASE, EFFECTIVE OCTOBER 9, 1977. THE EFFECTIVE DATE OF THIS ACTION WAS SUBSEQUENTLY CHANGED TO NOVEMBER 9, 1977. ON SEPTEMBER 9, 1977, MR. COOPER WAS TRANSFERRED TO TYNDALL AIR FORCE BASE, FLORIDA, WITH RELOCATION ALLOWANCES AUTHORIZED.

UPON HIS ARRIVAL AT TYNDALL MR. COOPER REQUESTED REIMBURSEMENT FOR ALLOWABLE COSTS ASSOCIATED WITH THE SALE OF HIS FORMER RESIDENCE AT WHITE SANDS. HIS CLAIM WAS DENIED BY THE AIR FORCE ON THE BASIS THAT HE WAS RENTING PROPERTY AT THE TIME HE SIGNED A TRANSPORTATION AGREEMENT IN CONNECTION WITH HIS TRANSFER AND, THEREFORE, THE FORMER HOUSE WAS NO LONGER HIS RESIDENCE. CLAIMS GROUP, AS PREVIOUSLY NOTED, DISALLOWED THE CLAIM ON THE GROUNDS THAT THE HOUSE WAS NOT HIS RESIDENCE AT THE TIME HE WAS NOTIFIED OF HIS TRANSFER. FOR THE REASONS SET FORTH BELOW WE FIND THAT MR. COOPER MAY BE REIMBURSED FOR SELLING HIS RESIDENCE AT WHITE SANDS.

REIMBURSEMENT OF RELOCATION EXPENSES FOR FEDERAL EMPLOYEES IS GOVERNED BY THE PROVISIONS OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7). FTR PARA. 2-6.1D REQUIRES THAT THE DWELLING FOR WHICH REIMBURSEMENT OF SELLING EXPENSES IS CLAIMED BE THE EMPLOYEE'S RESIDENCE " *** AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY OF HIS TRANSFER ***" TO A NEW DUTY STATION. FROM THIS PROVISION COMES THE GENERAL RULE THAT AN EMPLOYEE MAY BE REIMBURSED FOR REAL ESTATE EXPENSES INCURRED PRIOR TO AND IN ANTICIPATION OF A TRANSFER ONLY IF A CLEARLY EVIDENT ADMINISTRATIVE INTENT TO TRANSFER THE EMPLOYEE EXISTS AT THE TIME THE EXPENSES ARE INCURRED. WHAT CONSTITUTES A CLEAR INTENTION TO TRANSFER AN EMPLOYEE IS DETERMINED ON A CASE-BY-CASE BASIS. 48 COMP.GEN. 395 (1968); 58 COMP.GEN. 208 (1979).

FOR EXAMPLE, IF MR. COOPER HAD SIGNED THE CONTRACT FOR THE SALE OF HIS HOUSE BEFORE FEBRUARY 2, 1977, WHEN HIS FIRST REDUCTION IN FORCE WAS CANCELLED, HE WOULD HAVE BEEN ENTITLED TO REIMBURSEMENT OF ALLOWABLE COSTS REGARDLESS OF WHETHER HE WAS EVENTUALLY TRANSFERRED. MATTER OF MYERS, 57 COMP.GEN. 447 (1978); MATTER OF CRUMPACKER, B-187405, MARCH 22, 1977. THUS, WHILE MR. COOPER ASSUMED THE RISK OF NOT BEING REIMBURSED WHEN HE SOLD HIS RESIDENCE AFTER THE FEBRUARY 2 CANCELLATION OF HIS REDUCTION-IN- FORCE NOTICE, THE SALE AND/OR PURCHASE OF A RESIDENCE BEFORE A DEFINITE NOTICE OF TRANSFER DOES NOT IN ITSELF DISQUALIFY AN EMPLOYEE FROM REIMBURSEMENT OF ALLOWABLE EXPENSES. MATTER OF WHITE, 58 COMP.GEN. 208 (1979). WHERE THE TOTALITY OF THE CIRCUMSTANCES LEADS AN EMPLOYEE TO REASONABLY BELIEVE THAT HE WILL BE TRANSFERRED AND HE ACTUALLY IS TRANSFERRED, WE HAVE FOUND THAT THERE IS SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT FOR A CLEARLY EVIDENT INTENTION TO TRANSFER THE EMPLOYEE AND PERMITTED REIMBURSEMENT. SEE 58 COMP.GEN. 208 (1979); B-162504, DECEMBER 19, 1967; B-162842, NOVEMBER 22, 1967; B-170800, DECEMBER 22, 1970; AND B-176075-O.M., JULY 17, 1972.

SINCE MR. COOPER SOLD HIS HOUSE WHEN IT SEEMED THAT THE ISSUANCE OF ANOTHER REDUCTION-IN-FORCE NOTICE WAS IMMINENT AND HIS OFFICE WAS IN A PHASE-DOWN, IT WAS REASONABLE FOR HIM TO CONCLUDE THAT HE WOULD BE TRANSFERRED TO ANOTHER LOCATION. UNDER THE CIRCUMSTANCES AND IN LINE WITH THE ABOVE-CITED DECISIONS, WE FIND THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT OF A CLEARLY EVIDENT INTENT TO TRANSFER HIM. IN THIS REGARD WE NOTE THAT THE RECORD INDICATES THE DECISION TO ABOLISH HIS POSITION, WHILE NOT COMMUNICATED DIRECTLY TO THE EMPLOYEE, HAD BEEN MADE IN APRIL 1977 BEFORE THE RESIDENCE SALE WAS CLOSED. ACCORDINGLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER. HOWEVER, THE ITEMS LISTED UNDER "OTHER INCIDENTAL EXPENSES," ITEM 6 OF DD FORM 1705, WITH THE EXCEPTION OF A $10 FEE FOR A CREDIT REPORT ARE NOT REIMBURSABLE AND SHOULD BE DISALLOWED. SPECIFICALLY, THE $299.03 CLAIMED FOR EXPENSES TO GET READY FOR SALE ARE ITEMS DEALING WITH MAINTENANCE, AND REIMBURSEMENT OF SUCH COSTS IS NOT AUTHORIZED BY FTR PARA. 2-6.2D. WITH REGARD TO THE $658.50 CLAIMED FOR MOVING INTO GOVERNMENT QUARTERS AT WHITE SANDS MISSILE RANGE, THERE IS NO AUTHORITY TO REIMBURSE AN EMPLOYEE FOR LOCAL MOVES AT THE CONVENIENCE OF THE EMPLOYEE.

WE HAVE BY LETTER OF TODAY NOTIFIED CLAIMANT'S ATTORNEY OF THE PENDING SETTLEMENT.

ATTACHMENT

UPON REVIEW OF MR. COOPER'S CLAIM, WE HAVE DETERMINED THAT HIS RESIDENCE IN WHITE SANDS, NEW MEXICO, WAS SOLD INCIDENT TO HIS TRANSFER AND THAT CERTAIN RELOCATION EXPENSES ARE ALLOWABLE. WE HAVE TODAY INSTRUCTED THE CLAIMS GROUP TO PROCESS MR. COOPER'S CLAIM IN LIGHT OF THIS DETERMINATION AND ISSUE A REVISED SETTLEMENT. WHILE MR. COOPER IS ENTITLED TO REIMBURSEMENT OF ALL CLAIMED EXPENSES TO THE EXTENT THOSE EXPENSES ARE AUTHORIZED BY THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7), IN OUR REVIEW WE NOTED THAT THE EXPENSES CLAIMED BY MR. COOPER IN ITEM 6 OF DD FORM 1705 ARE NOT AUTHORIZED WITH THE EXCEPTION OF A $10 FEE FOR A CREDIT REPORT. ACCORDINGLY, WE HAVE INSTRUCTED THE CLAIMS GROUP TO DISALLOW THESE EXPENSES.