B-239108, Mar 15, 1991

B-239108: Mar 15, 1991

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Decision to purchase in Rapid City was due to medical necessity in that employee's wife requires specialized medical care on an ongoing basis not available at a closer location than Rapid City. Employee may be reimbursed for real estate purchase expenses even though Rapid City is not within commuting distance from Pierre. If an agency determines that the circumstances are as described by him. Is entitled to reimbursement of the real estate expenses he incurred in the purchase of a residence in Rapid City. Alcorn's choice of Rapid City as the location for his new residence was dictated by medical necessity. Requires specialized medical care on an ongoing basis and that the closest location to Pierre where the necessary care could be found was in Rapid City.

B-239108, Mar 15, 1991

CIVILIAN PERSONNEL - Relocation - transaction expenses - Reimbursement - Permanent duty stations - Distance determination

DIGEST

Mark S. Alcorn - Relocation Expenses - House Beyond Commuting Distance of New Station:

Alcorn, an employee of the Farmers Home Administration, is entitled to reimbursement of the real estate expenses he incurred in the purchase of a residence in Rapid City, South Dakota, upon transfer from Cottonwood, Arizona, to Pierre, South Dakota. The certifying officer reports that Mr. Alcorn's choice of Rapid City as the location for his new residence was dictated by medical necessity. She reports that his wife, who has been totally and permanently disabled since 1983, requires specialized medical care on an ongoing basis and that the closest location to Pierre where the necessary care could be found was in Rapid City.

The agency denied the claim on the grounds that the residence is about 172 miles from the permanent duty station, and Mr. Alcorn commutes between there and his official duty station only 1 or 2 times a month and on weekends. The remainder of the time he is either in travel status from his official station in Pierre or commuting from lodgings he maintains for himself in Pierre. As explained below, we find that the claimed expenses may be reimbursed.

The authority to reimburse an employee for real estate expenses incurred in the "purchase of a home at the new official station," incident to a change of official station, is contained in 5 U.S.C. Sec. 5724a(a)(4) (1988). The implementing regulations are found in Federal Travel Regulations (FTR), 41 C.F.R. Chapter 302 (1989), which in accordance with the statutory language provide that the new residence must be located at the employee's new "official station." FTR para. 302-1.4(j) provides that with respect to an employee's entitlement to reimbursement of residence expenses, "official station or post of duty means the residence or other quarters from which the employee regularly commutes to and from work." /1/ With respect to the purchase of a residence, we have consistently held that the requirement that the employee regularly commute from the residence in question contemplates commuting on a daily basis, not just on weekends or occasionally during the month. /2/

The purpose of the regulation is to allow reimbursement only of the expenses an employee is required to pay in connection with the change in duty station. We have consistently held that, in general, if the new residence is not within commuting distance of his new duty station, the expenses incurred in purchase of the residence are not allowable, 67 Comp.Gen. 395 at 398 (1988), reasoning that if the employee's new residence is not within commuting distance of the new duty station, the purchase is not incident to a change in duty station.

At the same time, there are situations in which an employee's relocation should be viewed as incident to a change in duty station even though the new residence is not within commuting distance of the new duty station. The regulation explicitly provides for one such situation -- where the official station is in a remote area and adequate family housing is not available within daily commuting distance. We believe that Mr. Alcorn's situation, as described by him, is another.

He asserts that his choice of Rapid City, South Dakota, rather than Pierre, where his new duty station was located, as his place of residence was dictated by medical necessity involving his wife. In his view, he really had no choice but to relocate to Rapid City following the change in duty station. If the agency concludes that the circumstances of Mr. Alcorn's case are as he describes them, reimbursement of his real estate expenses would be consistent with the purpose of the statute and his claim should be allowed.

/1/ Ms. Sandra S. Williams, Authorized Certifying Officer, National Finance Center, United States Department of Agriculture, made this request.

/2/ Ellis M. Hershowitz, B-181415, Feb. 5, 1975.

/3/ Irving R. Warnasch, B-193885, June 8, 1979; Stanley H. Fretwell, B-186185, Nov. 15, 1976; Clifton E. Klinefelter, B-185584, June 30, 1976; Hershowitz, supra. See also Donald R. Stacy, 67 Comp.Gen. 395 at 398 (1988).