B-212560, DECEMBER 5, 1983, 63 COMP.GEN. 93

B-212560, DECEMBER 5, 1983, 63 COMP.GEN. 93

OFFICERS AND EMPLOYEES - TRANSFERS - MISCELLANEOUS EXPENSES - REAL ESTATE DEPOSIT FORFEITURE EMPLOYEE TRANSFERRED TO NEW DUTY STATION AND CONTRACTED TO PURCHASE RESIDENCE THERE. WHEN AGENCY DELAYED ESTABLISHMENT OF NEW OFFICE AT THIS DUTY STATION, EMPLOYEE, DUE TO UNCERTAINTY OF THE SITUATION, CHOSE TO FORFEIT DEPOSIT ON RESIDENCE. SINCE AGENCY DELAY APPEARS TO BE THE PROXIMATE CAUSE OF FORFEITURE, THE DEPOSIT MAY BE CLAIMED AS A , MISCELLANEOUS RELOCATION EXPENSE. THE CLAIM IS NOT TO UNUSUAL OR EXTRAORDINARY AS TO WARRANT CONSIDERATION AS A MERITORIOUS CLAIM.

MATTER OF: MARVIN K. EILTS - CLAIM FOR FORFEITED REAL ESTATE DEPOSIT, DECEMBER 5, 1983:

THE ISSUE IN THIS DECISION IS WHETHER AN EMPLOYEE MAY BE REIMBURSED FOR A REAL ESTATE DEPOSIT HE FORFEITED WHEN THE GOVERNMENT DELAYED OPENING THE NEW OFFICE TO WHICH HE WAS BEING TRANSFERRED. WE HOLD THAT THE FORFEITED DEPOSIT MAY BE CLAIMED AS A MISCELLANEOUS EXPENSE UNDER THE STATUTE AND REGULATIONS GOVERNING THE PAYMENT OF RELOCATION EXPENSES. HOWEVER, TO THE EXTENT THE MISCELLANEOUS EXPENSE ALLOWANCE DOES NOT FULLY REIMBURSE THE EMPLOYEE, WE WILL NOT RECOMMEND RELIEF AS A MERITORIOUS CLAIM.

THIS DECISION IS IN RESPONSE TO A REQUEST FROM MR. VERN F. HIGHLEY, ADMINISTRATOR, AGRICULTURAL MARKETING SERVICE (AMS), DEPARTMENT OF AGRICULTURE, CONCERNING THE CLAIM OF MR. MARVIN K. EILTS, AN AMS EMPLOYEE, FOR REIMBURSEMENT OF A FORFEITED REAL ESTATE DEPOSIT.

IN JULY 1982, AMS PROPOSED MOVING A FIELD HEADQUARTERS OFFICE FROM KANSAS CITY, MISSOURI, TO DALLAS, TEXAS, AND MR. EILTS, WHO WAS STATIONED IN DENVER, COLORADO, WAS SELECTED TO BE THE SUPERVISOR OF THE PROPOSED DALLAS OFFICE. IN CONNECTION WITH HIS TRANSFER, MR. EILTS SIGNED A SERVICE AGREEMENT ON JULY 28, 1982, AND HE TRAVELED TO DALLAS ON A HOUSE HUNTING TRIP ON AUGUST 9, 1982. DURING THIS TRIP HE SIGNED A CONTRACT TO PURCHASE A RESIDENCE IN THE DALLAS AREA, AND HE MADE A $2,000 EARNEST MONEY DEPOSIT ON THIS CONTRACT. MR. EILTS SUBSEQUENTLY AGREED TO RELEASE THE CONTINGENCY ON SELLING HIS RESIDENCE IN DENVER AND AGREED TO SETTLEMENT ON THE NEW RESIDENCE ON OR BEFORE OCTOBER 17, 1982.

ALTHOUGH MR. EILTS REPORTED FOR DUTY IN DALLAS ON SEPTEMBER 9, 1982, THE CLOSING OF THE KANSAS CITY OFFICE AND THE ESTABLISHMENT OF THE DALLAS OFFICE WAS DELAYED BEYOND THE PROPOSED EFFECTIVE DATE OF OCTOBER 1, 1982. BECAUSE OF THIS DELAY AND THE UNCERTAINTY AS TO WHETHER THE DALLAS OFFICE WOULD BE ESTABLISHED, MR. EILTS CHOSE NOT TO SETTLE ON THIS RESIDENCE. THEREFORE, UNDER THE TERMS OF THE CONTRACT, HE FORFEITED THE $2,000 EARNEST MONEY DEPOSIT. THE DALLAS OFFICE WAS LATER OPENED ON DECEMBER 26, 1982, AND AMS HAS REQUESTED, IN THE ABSENCE OF OTHER AUTHORITY TO PAY THIS CLAIM, THAT WE CONSIDER THIS CLAIM UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 3702(D), AS CODIFIED BY 97-258, 96 STAT. 877, SEPTEMBER 13, 1982 (FORMERLY 31 U.S.C. 236).

OUR DECISIONS HAVE HELD THAT SUCH A FORFEITED DEPOSIT MAY NOT BE CLAIMED AS A REAL ESTATE EXPENSE UNDER 5 U.S.C. 5724AA)(4) (1982) AND THE APPLICABLE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SEPTEMBER 1981) (FTR). SEE RALPH A. NEEPER, B-195920, JUNE 30, 1980, CITING 55 COMP.GEN. 628 (1976); AND DAVID D. LOMBARDO, B-190764, APRIL 14, 1978.

HOWEVER, WE HAVE HELD THAT THIS EXPENSE MAY BE CLAIMED AS A MISCELLANEOUS EXPENSE UNDER 5 U.S.C. 5724AB) AND FTR CHAPTER 2, PART 3. SEE NEEPER, AND LOMBARDO, CITED ABOVE. IN OUR PRIOR DECISIONS, THE FORFEITURE NORMALLY OCCURRED WHERE THE EMPLOYEE MADE A REAL ESTATE OR LEASE DEPOSIT AT HIS DUTY STATION AND THEN WAS TRANSFERRED TO A NEW DUTY STATION. THUS, THE TRANSFER OF THE EMPLOYEE WAS CONSIDERED TO BE THE PROXIMATE CAUSE OF THE FORFEITURE. SEE LOMBARDO, CITED ABOVE, AND B-177595, MARCH 2, 1973. HAVE PERMITTED REIMBURSEMENT EVEN WHERE THE EMPLOYEE APPLIED FOR THE POSITION WHICH NECESSITATED HIS TRANSFER. SEE NEEPER, CITED ABOVE, AND RICHARD E. WITMER, B-196002, MARCH 18, 1980.

IN THE PRESENT CASE IT WAS NOT THE EMPLOYEE'S TRANSFER WHICH CAUSED THE FORFEITURE BUT RATHER THE GOVERNMENT'S DELAY IN ESTABLISHING THE DALLAS OFFICE WHICH PROMPTED MR. EILTS TO CANCEL HIS HOUSE PURCHASE AND FORFEIT THE DEPOSIT. MR. EILTS HAS ADVISED US INFORMALLY THAT HE DISCUSSED THE SITUATION WITH AMS OFFICIALS PRIOR TO FORFEITURE OF THE DEPOSIT, BUT NO PARTICULAR ADVICE WAS GIVEN TO HIM. WE PRESUME THAT IF THE PROPOSED DALLAS OFFICE WAS NEVER OPENED, THE AGENCY WOULD HAVE FOUND ANOTHER POSITION FOR HIM IN DALLAS OR WOULD HAVE TRANSFERRED HIM TO ANOTHER LOCATION. HOWEVER, DUE TO THE UNCERTAINTY REGARDING THE PROPOSED DALLAS OFFICE, MR. EILTS CHOSE NOT TO PROCEED WITH PURCHASING THIS RESIDENCE. SINCE THE DELAY IN OPENING THIS OFFICE APPEARS TO BE THE PROXIMATE CAUSE OF THE FORFEITURE, WE HAVE NO OBJECTIONS TO MR. EILTS CLAIMING THIS FORFEITED DEPOSIT AS A MISCELLANEOUS EXPENSE IN VIEW OF OUR PRIOR DECISIONS.

WE HAVE LEARNED INFORMALLY THAT MR. EILTS CLAIMED $200 IN UNDOCUMENTED MISCELLANEOUS EXPENSES. HE MAY NOW CLAIM THE REMAINDER OF THE MISCELLANEOUS EXPENSE ALLOWANCE PROVIDED IN FTR PARA. 2-3.3, BUT NOT IN EXCESS OF THE MAXIMUM AMOUNT ALLOWABLE BY STATUTE. SEE NEEPER, CITED ABOVE.

FINALLY, THE AGENCY REQUESTS OUR CONSIDERATION OF THIS CLAIM AS A MERITORIOUS CLAIM. UNDER THE PROVISIONS OF 31 U.S.C. 3702(D) (FORMERLY 31 U.S.C. 236), THE COMPTROLLER GENERAL SHALL REPORT TO CONGRESS A CLAIM THAT MAY NOT BE PAID UNDER CURRENT STATUTE BUT WHICH THE COMPTROLLER GENERAL BELIEVES CONGRESS SHOULD CONSIDER FOR LEGAL OR EQUITABLE REASONS. GENERALLY, WE HAVE CONSIDERED THIS REMEDY IN EXTRAORDINARY CIRCUMSTANCES INVOLVING CASES OF UNUSUAL CIRCUMSTANCES WHICH WERE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM. SEE DR. MARTIN BLINDER, B-210831, AUGUST 2, 1983. WE DO NOT CONSIDER THIS TO BE AN UNUSUAL OR A NONRECURRING PROBLEM AS EVIDENCED BY THE NUMBER OF DECISIONS OF OUR OFFICE INVOLVING FORFEITED REAL ESTATE OR LEASE DEPOSITS, AND WE FIND NO ELEMENTS OF UNUSUAL LEGAL LIABILITY OR EQUITY WHICH WOULD JUSTIFY OUR REPORTING THIS CLAIM TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT.

ACCORDINGLY, WE HOLD THAT MR. EILTS MAY BE REIMBURSED FOR THE FORFEITED DEPOSIT AS A MISCELLANEOUS EXPENSE SUBJECT TO THE LIMITATIONS OF THAT EXPENSE ALLOWANCE.