B-251045.3 January 18, 1995

B-251045.3: Jan 18, 1995

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Redfearn: This is in further response to your letters of December 6 and August 12. Your claim was denied because the residence for which you seek the real estate expense reimbursement is not located in the vicinity of your old duty station. You state several circumstances which you believe make your situation unique and which you think were not well understood when the previous rulings on your claim were made. We were aware of these circumstances when we reviewed your claim previously. The record in your case shows that in September 1988 you were appointed to the position of Deputy Commandant at the Merchant Marine Academy (a GM-14 civilian position). As a condition of which you were required to occupy quarters on the Academy grounds.

B-251045.3 January 18, 1995

(no digest)

Mr. Richard W. Redfearn 6539 Gleneagle Avenue, S.W. Port Orchard, Washington 98366-7604

Dear Mr. Redfearn:

This is in further response to your letters of December 6 and August 12, 1993, requesting reconsideration of our decision of January 28,1993, which affirmed the disallowance of your claim for real estate expenses incurred in the sale of your family residence in East Lansing, Michigan, which you claim incident to your transfer from the U.S. Merchant Marine Academy, Long Island, New York, to the Puget Sound Naval Shipyard in Bremerton, Washington. Your claim was denied because the residence for which you seek the real estate expense reimbursement is not located in the vicinity of your old duty station, as required under the applicable regulations.

You state several circumstances which you believe make your situation unique and which you think were not well understood when the previous rulings on your claim were made. As explained below, however, we were aware of these circumstances when we reviewed your claim previously, and they do not provide a basis for us to allow your claim.

The record in your case shows that in September 1988 you were appointed to the position of Deputy Commandant at the Merchant Marine Academy (a GM-14 civilian position), as a condition of which you were required to occupy quarters on the Academy grounds. However, acceptable family quarters were not available to you on the Academy grounds during your approximately 2 years of employment there, and for that reason, you state, you had no alternative but to leave your family at your residence in Michigan. You occupied government bachelor quarters at the Academy during your tenure there. When you were offered the position with the Navy in Bremerton, Washington, you were advised that you would be entitled to reimbursement for the sale of your house in Michigan. However, after you accepted the position in Bremerton and applied for reimbursement for expenses of the sale of that house, the Navy denied your claim on the ground that it does not qualify for reimbursement because it was not the residence at your former duty station from which you regularly commuted to work. As noted above, subsequently your claim was considered and denied by our Claims Group, and the denial was affirmed by our decision. [1]

You argue that you had no choice in leaving your family in the Michigan residence while you were employed by the Academy in New York since you were required to live on the Academy grounds where family quarters were not available to you. You say that when you were recruited for the Bremerton position by the Navy, it was on the basis that your home of record was in Michigan and your status at the Academy in New York was temporary, where housing for your family was never an option. You also point out that the statement in our January 28, 1993 letter, that you were on active military duty at the time of your appointment to the Academy position was erroneous; you state that at that time you were a civilian consultant in Michigan.

We regret that we were given erroneous information as to your status at the time you were appointed to the Academy position. However, whether you were on active military duty or working as a civilian consultant, the fact is you were not a civilian employee of the federal government when you received the appointment to the Academy position. You were in the status of a newly hired federal employee, and as such you were not eligible for reimbursement of real estate expenses incident to your move to the Academy. [2] Thus, even if family quarters had been available for you at the Academy and had you elected to move your family to the Academy and sell your Michigan residence, you would not have been entitled to reimbursement for the cost of selling your residence. For the same reason, had you not been required to occupy quarters on the Academy grounds, and had you then elected to sell your Michigan residence and purchase a residence near the Academy, you would not have been entitled to reimbursement for the cost of selling the residence in Michigan or purchasing a residence in New York. We point this out since it appears that you may be under the impression that had it not been for the lack of family quarters at the Academy, you could have moved your family there, sold your Michigan residence and been reimbursed for the selling expenses at that time. As explained above, however, as a newly hired employee, you did not qualify for such reimbursement.

Upon your transfer from the Academy to the Naval Shipyard in Bremerton, as a transferred employee, you did qualify for real estate expense reimbursement to the extent authorized by law and regulations applicable to an employee transferred in the interest of the government. This includes reimbursement for the expenses of purchase of a house at the new duty station and sale of a residence at the old duty station.

As our Claims Group settlement advised you, to qualify for reimbursement for the expense of sale, the residence must have been the employee's residence "at the old station," which the Federal Travel Regulation (FTR) defines as the residence from which the employee "regularly commutes to and from work." [3] Also, as the Claims Group's settlement notes, clearly your house in Michigan cannot be considered the residence at your old duty station in New York from which you regularly commuted to work. The regulation does make an exception where the duty station is in a "remote area where adequate family housing is not available within reasonable daily commuting distance." In such a case, reimbursement may be allowed for "the dwelling where the family of the employee resides or will reside, but only if such residence reasonably relates to the official duty station as determined by an appropriate administrative official." Long Island, New York, where the Academy is located, is not considered a remote area where adequate family housing is not available. That is, while you were not furnished family quarters at the Academy, the Academy is not located in a remote area where other family housing is not available. Therefore, although you elected not to sell your Michigan home and move your family to New York incident to your employment at the Academy because government quarters were not available for them and you considered your employment there to be temporary, that does not qualify your Michigan home as your residence for the purpose of real estate expense reimbursement under the regulations incident to your transfer from New York to Washington.

It is unfortunate that you were given erroneous advice by Navy personnel concerning your entitlement to reimbursement of real estate sale expenses. However, this does not provide a basis for us to allow your claim contrary to the applicable regulations.

1. Settlement Certificate Z-2867728-347, Aug. 5, 1992; affirmed, B-251045, Jan. 28,1993.

2. See 54 Comp.Gen. 747 (1975).

3. See FTR, 41 C.F.R Sec. 302-1.4(k) (previously FTR para. 2-1.4i), implementing 5 U.S.C. Sec. 5724a(a)(4).