B-169555, JUL. 2, 1970

B-169555, JUL. 2, 1970

CIVIL PAY -- EMPLOYEE TRANSFER -- EXPENSE REIMBURSEMENT DECISION TO CERTIFYING OFFICER OF THE FOREST SERVICE CONCERNING EMPLOYEE'S ENTITLEMENT TO EXPENSE REIMBURSEMENT ON TRANSFER TO STATION AT WHICH TEMPORARY DUTY HAD BEEN PERFORMED. EMPLOYEE WHO, 9 MONTHS PRIOR TO PROMOTION AND TRANSFER TO ARLINGTON, VA., MOVED HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO WASHINGTON, D.C. INCIDENT TO HIS SELECTION AS A CONGRESSIONAL FELLOW AND ASSIGNMENT TO WASHINGTON, D.C. MAY NOT HAVE SUCH MOVE REGARDED AS INCIDENT TO THE CHANGE OF HIS OFFICIAL STATION FOR EXPENSE REIMBURSEMENT. WITH RESPECT TO MISCELLANEOUS EXPENSE REIMBURSEMENT UNDER SEC. 3.2 OF BUREAU OF BUDGET CIRCULAR NO. A-56 HE MAY BE REGARDED AS HAVING CONSTRUCTIVELY DISCONTINUED HIS PERMANENT RESIDENCE ON DATE OF TRANSFER AND THEREFORE BE ENTITLED TO MISCELLANEOUS EXPENSES ALLOWANCE. IN ORDER FOR EMPLOYEE TO BE ENTITLED TO REIMBURSEMENT FOR EXPENSES INCIDENT TO PURCHASE OF A HOME THE SETTLEMENT DATE MUST NOT BE LATER THAN ONE YEAR AFTER HE REPORTED TO DUTY AT HIS NEW STATION.

TO MR. LOUIS B. ANDERSON:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1970 (REFERENCE 6540), IN WHICH YOU REQUEST AN ADVANCE DECISION IN REGARD TO A VOUCHER SUBMITTED BY MR. DAVID E. KETCHAM IN THE AMOUNT OF $823.42 FOR MOVING EXPENSES.

THE FACTS AS STATED IN YOUR LETTER ARE, IN ESSENCE, THAT:

"MR. KETCHAM, WHILE ASSIGNED FOR PERMANENT DUTY AT UPPER DARBY (PENNSYLVANIA), WAS AWARDED A CONGRESSIONAL FELLOWSHIP AT WASHINGTON, D.C. HE WAS IN TEMPORARY DUTY STATUS AT WASHINGTON FROM NOVEMBER 12, 1968, UNTIL AUGUST 15, 1969, WHEN HIS TEMPORARY ASSIGNMENT AS A CONGRESSIONAL FELLOW TERMINATED. DURING THIS PERIOD HE WAS ON A $10 PER DIEM TRAVEL ALLOWANCE.

" *** HE MOVED HIS FAMILY AND HOUSEHOLD GOODS (AT HIS OWN EXPENSE) IN NOVEMBER 1968 TO MCLEAN, VIRGINIA. ON AUGUST 24, 1969, MR. KETCHAM WAS PROMOTED AND TRANSFERRED FROM UPPER DARBY TO ARLINGTON, VIRGINIA, FOR PERMANENT DUTY. THE NATIONAL HEADQUARTERS OF THE FOREST SERVICE IS LOCATED IN WASHINGTON, D.C., AND ARLINGTON (ROSSLYN), VIRGINIA.

" *** MR. KETCHAM'S TRANSFER TO THE WASHINGTON AREA WAS MERE COINCIDENCE. HE COULD JUST AS WELL HAVE BEEN REASSIGNED TO SOME OTHER OFFICIAL STATION UPON COMPLETION OF HIS CONGRESSIONAL FELLOWSHIP. ***

" *** HE CLAIMS TRANSPORTATION AND PER DIEM EN ROUTE FOR HIS FAMILY, THE $200 MISCELLANEOUS ALLOWANCE, AND SHIPMENT OF HOUSEHOLD GOODS. ADDITION, HE HAS REQUESTED AUTHORIZATION *** TO INCUR REIMBURSABLE EXPENSES INCIDENT TO THE PURCHASE OF A RESIDENCE IN THE WASHINGTON AREA."

MR. KETCHAM'S ENTITLEMENT TO REIMBURSEMENT FOR THE MOVING EXPENSES CLAIMED IS GOVERNED BY THE PROVISIONS OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969. SECTION 2.1 OF THAT CIRCULAR STATES, IN PERTINENT PART, THAT:

" *** EXCEPT AS SPECIFICALLY PROVIDED IN THESE REGULATIONS, PER DIEM IN LIEU OF SUBSISTENCE EXPENSES, TRANSPORTATION COSTS AND OTHER TRAVEL EXPENSES OF THE EMPLOYEE, WILL BE ALLOWED *** . THIS SECTION APPLIES TO TRAVEL OF TRANSFERRED EMPLOYEES *** ."

SECTION 6.1 STATES, IN PERTINENT PART, THAT:

"A. ALL EMPLOYEES *** WHO HAVE COMPLIED WITH THE AGREEMENT CONDITIONS PRESCRIBED IN SUBSECTION 1.3C ARE ELIGIBLE FOR SHIPMENT OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS AT GOVERNMENT EXPENSE *** (1) WHEN THEY ARE TRANSFERRED OR ASSIGNED TO A NEW OFFICIAL STATION IN THE INTEREST OF THE GOVERNMENT *** "

THE RECORD DISCLOSES THAT APPROXIMATELY 9 MONTHS PRIOR TO HIS PROMOTION AND TRANSFER OF PERMANENT DUTY TO ARLINGTON, VIRGINIA, MR. KETCHAM MOVED HIS FAMILY AND HOUSEHOLD GOODS TO NEARBY MCLEAN, VIRGINIA. YOU HAVE POINTED OUT THAT HIS LATER TRANSFER TO ARLINGTON, VIRGINIA, WAS MERE COINCIDENCE AND THAT HE COULD HAVE BEEN REASSIGNED TO SOME OTHER OFFICIAL STATION UPON COMPLETION OF HIS CONGRESSIONAL FELLOWSHIP. WE FURTHER UNDERSTAND THAT AT THE TIME THE CLAIMANT WAS AWARDED THE FELLOWSHIP AND PRIOR TO THE MOVEMENT OF HIS FAMILY AND HOUSEHOLD GOODS, IT WAS UNDERSTOOD THAT HE WOULD RETURN TO DUTY TO HIS OLD OFFICIAL STATION BUT THAT DURING THE COURSE OF HIS TRAINING AN UNFORESEEN VACANCY DEVELOPED IN THE POSITION TO WHICH HE WAS PROMOTED. WE HAVE HELD THAT REIMBURSEMENT OF EXPENSES INCURRED IN ANTICIPATION OF A TRANSFER MAY BE AUTHORIZED WHEN IT IS SHOWN THAT THE TRAVEL ORDER SUBSEQUENTLY ISSUED TO THE EMPLOYEE INCLUDED AUTHORIZATION FOR THE EXPENSES ON THE BASIS OF A PREVIOUSLY EXISTING ADMINISTRATIVE INTENTION, CLEARLY EVIDENT AT THE TIME THE EXPENSES WERE INCURRED BY THE EMPLOYEE. HERE, HOWEVER, AT THE TIME MR. KETCHAM MOVED HIS FAMILY AND HOUSEHOLD GOODS, IT APPEARS (1) THAT HE HAD NOT BEEN ADVISED BY AN ADMINISTRATIVE OFFICER, EITHER VERBALLY OR OTHERWISE, THAT HIS OFFICIAL STATION WOULD BE TRANSFERRED TO THE WASHINGTON, D. C. AREA, AFTER COMPLETION OF HIS FELLOWSHIP TRAINING; (2) THAT NO ADMINISTRATIVE DETERMINATION IN THAT REGARD HAD BEEN MADE; AND (3) THAT HE TRANSPORTED HIS FAMILY AND HOUSEHOLD GOODS PURELY AS A MATTER OF PERSONAL PREFERENCE AND CONVENIENCE. CF. 48 COMP. GEN. 395 (1968); 41 ID. 582 (1962); 29 ID. 232, ID. 293 (1949); AND 27 ID. 97 (1947). SEE ALSO B 169495, MAY 5, 1970; B-168291, NOVEMBER 14, 1969; B-165417, NOVEMBER 7, 1968; B-164948, OCTOBER 18, 1968; AND B-159861, AUGUST 31, 1966, COPIES OF WHICH ARE ENCLOSED.

IT FOLLOWS THAT THE INCURRENCE OF EXPENSES BY MR. KETCHAM IN MOVING HIS FAMILY AND HOUSEHOLD GOODS IN NOVEMBER 1968, PRIOR TO THE ISSUANCE OF THE FORMAL WRITTEN TRANSFER ORDER CHANGING HIS OFFICIAL STATION, MAY NOT BE DEEMED AS INCIDENT TO THE CHANGE OF HIS OFFICIAL STATION IN AUGUST OF 1969 AND, HENCE, SUCH EXPENSES ARE NOT REIMBURSABLE.

WE WOULD ALSO POINT OUT THAT UNDER THE PROVISIONS OF 5 U.S.C. 4109 AND 5 CFR 410, THE CLAIMANT WAS PAID $10 PER DIEM EXPENSES WHILE TRAINING UNDER THE CONGRESSIONAL FELLOWSHIP AS A FULL-TIME PARTICIPANT. WE UNDERSTAND THAT DURING HIS 9-MONTH TRAINING COURSE THE PER DIEM IN LIEU OF SUBSISTENCE WAS SET BY THE SECRETARY OF AGRICULTURE, AND THE DEPARTMENT OF AGRICULTURE CONTINUED TO PAY HIS SALARY. UNDER 5 U.S.C. 4109, THE SECRETARY OF AGRICULTURE HAS THE AUTHORITY TO PAY OR REIMBURSE THE EMPLOYEE FOR ALL OR PART OF THE NECESSARY EXPENSES OF THE TRAINING, INCLUDING TRAVEL AND PER DIEM, OR, TRANSPORTATION OF THE EMPLOYEE'S IMMEDIATE FAMILY, HOUSEHOLD GOODS AND PERSONAL EFFECTS, WHEN THE ESTIMATED COSTS OF TRANSPORTATION ARE LESS THAN THE ESTIMATED AGGREGATE PER DIEM PAYMENTS FOR THE PERIOD OF TRAINING. SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT PAYMENT OF PER DIEM SHOULD BE MADE TO MR. KETCHAM THERE WAS NO AUTHORITY TO REIMBURSE HIM FOR TRANSPORTING HIS FAMILY AND HOUSEHOLD GOODS TO MCLEAN, VIRGINIA, UNDER THE PROVISIONS OF LAW APPLICABLE TO TRAINING.

WITH RESPECT TO THE MISCELLANEOUS EXPENSES ALLOWANCE, SECTION 3.1 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"A. THE MISCELLANEOUS EXPENSES ALLOWANCE *** IS FOR THE PURPOSE OF DEFRAYING VARIOUS CONTINGENT COSTS ASSOCIATED WITH DISCONTINUING RESIDENCE AT ONE LOCATION AND ESTABLISHING RESIDENCE AT A NEW LOCATION IN CONNECTION WITH AN AUTHORIZED OR APPROVED PERMANENT CHANGE OF STATION.

"B. THE ALLOWANCE IS RELATED TO EXPENSES THAT ARE COMMON TO LIVING QUARTERS FURNISHINGS AND HOUSEHOLD APPLIANCES AND TO OTHER GENERAL TYPES OF COSTS INHERENT IN RELOCATION OF A PLACE OF RESIDENCE. THE TYPES OF COSTS INTENDED TO BE REIMBURSED UNDER THE ALLOWANCE INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING:

"(1) DISCONNECTING AND CONNECTING APPLIANCES, EQUIPMENT AND UTILITIES INVOLVED IN RELOCATION, AND COST OF CONVERTING APPLIANCES FOR OPERATION ON AVAILABLE UTILITIES.

"(2) UNBLOCKING, BLOCKING AND RELATED EXPENSES IN CONNECTION WITH RELOCATING A HOUSE TRAILER RESIDENCE, BUT NOT THE TRANSPORTATION EXPENSES ALLOWED UNDER 9.3.

"(3) CUTTING AND FITTING RUGS, DRAPERIES AND CURTAINS MOVED FROM ONE RESIDENCE QUARTERS TO ANOTHER.

"(4) UTILITY FEES OR DEPOSITS THAT ARE NOT OFFSET BY EVENTUAL REFUNDS.

"(5) FORFEITURE LOSSES ON MEDICAL, DENTAL, AND FOOD LOCKER CONTRACTS THAT ARE NOT TRANSFERABLE.

"(6) AUTOMOBILE REGISTRATION, DRIVER'S LICENSE, AND USE TAXES IMPOSED WHEN BRINGING AUTOMOBILES INTO SOME JURISDICTIONS."

SECTION 3.2 PROVIDES, IN PERTINENT PART, THAT:

"A. A MISCELLANEOUS EXPENSE ALLOWANCE WILL BE PAYABLE TO AN EMPLOYEE FOR WHOM A PERMANENT CHANGE OF STATION IS AUTHORIZED OR APPROVED, AND WHO HAS DISCONTINUED AND ESTABLISHED A RESIDENCE IN CONNECTION WITH SUCH CHANGE, REGARDLESS OF WHERE THE OLD OR NEW OFFICIAL STATIONS ARE LOCATED. *** "

IN LINE WITH SECTION 3.2 IT MIGHT BE ARGUED THAT MR. KETCHAM DID NOT ON THE EFFECTIVE DATE OF HIS TRANSFER DISCONTINUE A RESIDENCE AT HIS OLD STATION AND ESTABLISH A RESIDENCE AT HIS NEW STATION BECAUSE HIS FAMILY AND HOUSEHOLD GOODS ALREADY WERE LOCATED AT THE NEW STATION. HOWEVER, WE ASSUME THAT HAD THE TRANSFER TO ARLINGTON NOT MATERIALIZED THE EMPLOYEE WOULD HAVE MOVED HIS FAMILY AND HOUSEHOLD GOODS BACK TO UPPER DARBY AT HIS OWN EXPENSE. THUS, IT MAY BE SAID THAT ON THE DATE OF HIS TRANSFER HE CONSTRUCTIVELY DISCONTINUED HIS PERMANENT RESIDENCE IN UPPER DARBY AND ESTABLISHED A PERMANENT RESIDENCE IN ARLINGTON. IF HE CAN SHOW THAT HE INCURRED SOME EXPENSE OF THE NATURE REFLECTED IN THE REGULATION ON OR AFTER AUGUST 25, 1969 (SUCH AS OBTAINING VIRGINIA AUTOMOBILE REGISTRATION OR DRIVER'S LICENSE THE MISCELLANEOUS EXPENSES ALLOWANCE WOULD BE PAYABLE AT THIS TIME. OTHERWISE IT MIGHT BE NECESSARY TO DEFER ALLOWANCE THEREOF UNTIL SUCH TIME AS HE PURCHASES A HOUSE WITHIN THE PERIOD SPECIFIED. SEE OUR DECISIONS B-168754, FEBRUARY 26, 1970; B-165417, NOVEMBER 7, 1968; B- 164320, JUNE 27, 1968; B-164137, JUNE 26, 1968; B-163632, APRIL 9, 1968; AND B-162500, OCTOBER 19, 1967, COPIES OF WHICH ARE ENCLOSED.

IN REGARD TO REIMBURSEMENT FOR EXPENSES TO BE INCURRED INCIDENT TO THE PURCHASE OF A RESIDENCE IN THE WASHINGTON, D. C. AREA, SECTION 4.1 OF THE ABOVE-CITED CIRCULAR PROVIDES, IN PERTINENT PART, THAT:

" *** THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE ***PURCHASE (INCLUDING CONSTRUCTION) OF ONE DWELLING AT HIS NEW OFFICIAL STATION *** PROVIDED THAT:

"E. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT (1) AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION OR (2) AN ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF ONE YEAR MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN HE DETERMINES THAT CIRCUMSTANCES JUSTIFYING THE EXCEPTION EXIST WHICH PRECLUDED SETTLEMENT WITHIN THE INITIAL ONE-YEAR PERIOD OF THE SALE/PURCHASE CONTRACTS OR LEASE TERMINATION ARRANGEMENT ENTERED INTO IN GOOD FAITH BY THE EMPLOYEE WITHIN THE INITIAL ONE-YEAR PERIOD. THE CIRCUMSTANCES WHICH ARE DETERMINED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE TO JUSTIFY THE EXCEPTION UNDER (2) ABOVE SHALL BE SET FORTH IN WRITING."

IN ORDER FOR MR. KETCHAM TO BE ENTITLED TO REIMBURSEMENT FOR EXPENSES TO BE INCURRED INCIDENT TO THE PURCHASE OF A RESIDENCE AT HIS NEW OFFICIAL STATION THE SETTLEMENT DATE FOR SUCH PURCHASE MUST OCCUR NOT LATER THAN ONE (INITIAL) YEAR AFTER THE DATE HE REPORTED FOR DUTY AT ARLINGTON (APPARENTLY AUGUST 25, 1969) UNLESS AN EXTENSION BE GRANTED IN THE MANNER SET FORTH IN THE REGULATION. SEE OUR DECISIONS B-162802, NOVEMBER 20, 1967, AND B-169018, MARCH 30, 1970, COPIES HEREWITH.

THE VOUCHER IS RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS FOR HANDLING IN ACCORDANCE WITH THE FOREGOING.