B-175822, JUN 14, 1972

B-175822, JUN 14, 1972

CIVILIAN EMPLOYEE - CHANGE OF STATION - REAL ESTATE EXPENSES - REIMBURSEMENT CONCERNING THE CLAIM OF JOHNNY L. THOMAS FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCIDENT TO A CHANGE OF STATION. IT WAS PROPER FOR MR. THOMAS TO ENGAGE IN REAL ESTATE TRANSACTIONS PRIOR TO SIGNING THE TRANSPORTATION AGREEMENT SINCE "SALE," AS USED IN 5 U.S.C. 5724A, USUALLY DOES NOT OCCUR UNTIL THE TIME OF SETTLEMENT. FURTHER, REIMBURSEMENT MAY BE PERMITTED WHERE THE RESIDENCE WAS SOLD UPON REASONABLE NOTICE OF AN IMPENDING TRANSFER. 48 COMP. GEN. 395, 396 (1968). SECONDLY, RELOCATION IN THE SAME CITY DOES NOT PRECLUDE REIMBURSEMENT SO LONG AS THE EMPLOYEE COMMUTES TO WORK DAILY FROM THE NEW RESIDENCE AND THE AGENCY DETERMINES THAT THE MOVE WAS RELATED TO THE TRANSFER. IN THE INSTANT CASE, SINCE MR. THOMAS SOLD HIS FORMER HOME APPARENTLY WITH THE INTENTION OF RELOCATING IN THE MONTEREY AREA, THE COMP. GEN. WOULD NOT OBJECT TO PAYMENT OF HIS CLAIM.

TO CAPTAIN MARVA L. WASHINGTON:

WE REFER TO YOUR LETTER OF APRIL 13, 1972, REFERENCE AMNOR-COMFT, FORWARDING AS A DOUBTFUL CLAIM MR. JOHNNY L. THOMAS' REQUEST FOR REIMBURSEMENT OF REAL ESTATE EXPENSES IN CONNECTION WITH HIS TRANSFER OF OFFICIAL DUTY STATION FROM HUNTERS POINT NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA, TO FORT ORD, CALIFORNIA (NEAR MONTEREY).

THE RECORD SHOWS THAT MR. THOMAS ENTERED INTO A CONTRACT FOR THE SALE OF HIS HOME AT 3109 ANDORA DRIVE, SAN JOSE, ON APRIL 5, 1971. ACCORDING TO MR. THOMAS, THAT SALE CONTRACT WAS ENTERED INTO IN ANTICIPATION OF RELOCATING IN THE MONTEREY AREA. YOU STATE THAT HIS REDUCTION-IN-FORCE NOTICE IS DATED MARCH 15, 1971, AND WAS SUBSEQUENTLY EXTENDED FROM MAY 19, 1971, TO JUNE 18, 1971, TO EFFECT A TRANSFER CAREER TO FORT ORD. MR. THOMAS SIGNED A TRANSPORTATION AGREEMENT ON MAY 25, 1971, AND REPORTED FOR DUTY AT FORT ORD ON JUNE 18, 1971. BECAUSE HIS WIFE WAS UNABLE TO FIND WORK IN THE MONTEREY AREA, SHE RETURNED TO HER POSITION WITH THE SOCIAL SECURITY ADMINISTRATION IN SAN FRANCISCO. THEY SETTLED ON THE PURCHASE OF A HOME IN SAN JOSE ON JULY 27, 1971.

IN REGARD TO MR. THOMAS' ENTITLEMENT TO REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE REAL ESTATE TRANSACTIONS INVOLVED, YOU ASK THE FOLLOWING QUESTIONS:

"A. CAN AN EMPLOYEE ENGAGE IN A REAL ESTATE TRANSACTION BY SELLING HIS HOUSE BEFORE SIGNING A TRANSPORTATION AGREEMENT?

"B. DOES A SALE AND PURCHASE OF A RESIDENCE IN THE SAME CITY (IN THIS CASE SAN JOSE, CA) CONSTITUTE RELOCATION FROM OLD TO A NEW DUTY STATION?"

REGARDING YOUR FIRST QUESTION, THE WORD "SALE" AS USED IN 5 U.S.C. 5724A AND IMPLEMENTING REGULATIONS REFERS TO THE TRANSFER OF TITLE WHICH USUALLY DOES NOT OCCUR UNTIL TIME OF SETTLEMENT. SEE 47 COMP. GEN. 582 (1966). THE RECORD SHOWS THAT SETTLEMENT ON THE SALE WAS MADE AUGUST 4, 1971, AND THE TRANSPORTATION AGREEMENT WAS SIGNED PRIOR THERETO, I.E; MAY 25, 1971. DETERMINATION OF QUESTION "A" IS THEREFORE UNNECESSARY IN THIS PARTICULAR CASE. HOWEVER, YOU ARE ADVISED THAT OUR OFFICE HAS HELD THAT WHERE THE SALE TOOK PLACE AFTER THE EMPLOYEE HAD RECEIVED A CLEAR INDICATION OF INTENTION FROM A COMPETENT AUTHORITY THAT HIS HEADQUARTERS WERE TO BE TRANSFERRED ON OR ABOUT A CERTAIN DATE AND THAT HE WOULD BE TRANSFERRED AT GOVERNMENT EXPENSE, REIMBURSEMENT OF EXPENSES INCURRED THEREAFTER WOULD NOT BE PRECLUDED. SEE 48 COMP. GEN. 395, 396 (1968).

WE HAVE HELD IN PAST DECISIONS THAT UNOFFICIAL TELEPHONE CONTACTS LINKED WITH A NOTICE OF REDUCTION IN FORCE (B-170800, DECEMBER 22, 1970); A LETTER NOTIFYING THAT A POSITION WAS SURPLUSAGE COUPLED WITH AN OFFER TO HELP FIND ANOTHER JOB (B-165796, FEBRUARY 12, 1969); A VERBAL NOTIFICATION OF TENTATIVE SELECTION FOR A POSITION (B-162842, NOVEMBER 22, 1967); AND AN OFFICIAL ANNOUNCEMENT THAT ALL ESSENTIAL FUNCTIONS OF THE INSTALLATION WERE TO BE RELOCATED (B-174051, DECEMBER 8, 1971); CONSTITUTE A CLEAR INTENTION TO TRANSFER AN EMPLOYEE.

AS TO WHETHER THE SALE OF A RESIDENCE AND PURCHASE OF ANOTHER IN THE SAME CITY CONSTITUTE THE "SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION" AND "PURCHASE (INCLUDING CONSTRUCTION) OF ONE DWELLING AT HIS NEW OFFICIAL STATION," THE FACT THAT BOTH RESIDENCES ARE WITHIN THE SAME CITY WOULD NOT BE CONTROLLING. IF THE EMPLOYEE IN FACT COMMUTES DAILY TO HIS NEW OFFICIAL STATION FROM THE NEWLY PURCHASED RESIDENCE, THE FACT THAT THAT RESIDENCE IS LOCATED IN THE SAME CITY AS HIS FORMER RESIDENCE WOULD NOT IN ITSELF PRECLUDE REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH EITHER REAL ESTATE TRANSACTION. SUBSECTION 1.2(I) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 PROVIDES:

"WITH RESPECT TO ENTITLEMENT UNDER THESE REGULATIONS RELATING TO THE RESIDENCE AND THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF AN EMPLOYEE, OFFICIAL STATION OR POST OF DUTY ALSO MEANS THE RESIDENCE OR OTHER QUARTERS FROM WHICH THE EMPLOYEE REGULARLY COMMUTES TO AND FROM WORK ***

WE POINT OUT THAT NEVERTHELESS, IN ANY CASE WHERE THE AGENCY FINDS THAT AN EMPLOYEE'S MOVE WAS NOT RELATED TO HIS TRANSFER, THE COSTS OF SUCH MOVE MAY NOT BE BORNE BY THE GOVERNMENT. WE REFER YOU TO SECTION 1.3A(2) OF THE CIRCULAR WHICH PROVIDES:

"(2) WHEN THE CHANGE OF OFFICIAL STATION INVOLVES A SHORT DISTANCE WITHIN THE SAME GENERAL LOCAL OR METROPOLITAN AREA, THE TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES IN CONNECTION WITH THE EMPLOYEE'S RELOCATION OF HIS RESIDENCE MAY BE AUTHORIZED ONLY WHEN THE AGENCY DETERMINES THAT THE RELOCATION WAS INCIDENT TO THE CHANGE OF OFFICIAL STATION. SUCH DETERMINATION SHOULD TAKE INTO CONSIDERATION SUCH FACTORS AS COMMUTING TIME AND DISTANCE BETWEEN THE EMPLOYEE'S RESIDENCE AT THE TIME OF NOTIFICATION OF TRANSFER AND HIS OLD AND NEW POSTS OF DUTY AS WELL AS THE COMMUTING TIME AND DISTANCE BETWEEN A PROPOSED NEW RESIDENCE AND THE NEW POST OF DUTY. ORDINARILY, RELOCATION OF RESIDENCE SHOULD NOT BE CONSIDERED AS INCIDENT TO A CHANGE OF OFFICIAL STATION UNLESS THE ONE-WAY COMMUTING DISTANCE FROM THE OLD RESIDENCE TO THE NEW OFFICIAL STATION IS AT LEAST TEN MILES GREATER THAN FROM THE OLD RESIDENCE TO THE OLD OFFICIAL STATION. EVEN THEN, CIRCUMSTANCES SURROUNDING A PARTICULAR CASE, E.G; RELATIVE COMMUTING TIME, MAY SUGGEST THAT THE MOVE OF RESIDENCE WAS NOT INCIDENT TO THE CHANGE OF OFFICIAL STATION."

WE DO NOT VIEW THE LANGUAGE OF SECTION 1.3A(2) TO THE EFFECT THAT AN EMPLOYEE MAY BE REIMBURSED FOR THE EXPENSES OF MOVING HIS RESIDENCE ONLY WHEN THE MOVE IS THE RESULT OF HIS TRANSFER AS BEING LIMITED TO CASES OF TRANSFERS INVOLVING SHORT DISTANCES. THE WORDS "GENERAL LOCAL OR METROPOLITAN AREA" ARE DESCRIPTIVE RATHER THAN RESTRICTIVE, B 167171, AUGUST 8, 1969. THUS, THE FACT THAT THE NEW HOME PURCHASED BY THE EMPLOYEE WAS IN THE VICINITY OF HIS FORMER RESIDENCE COULD PROPERLY BE TAKEN INTO CONSIDERATION IN DETERMINING WHETHER THE MOVE WAS IN FACT RELATED TO THE TRANSFER. HOWEVER, WE POINT OUT THAT THE EMPLOYEE SOLD HIS FORMER HOME APPARENTLY WITH THE INTENTION OF RELOCATING IN THE MONTEREY AREA. THAT INTENTION COULD NOT BE CARRIED OUT DUE TO HIS WIFE'S INABILITY TO FIND EMPLOYMENT IN MONTEREY. THIS IS IN FAVOR OF A CONCLUSION THAT THE MOVE IN FACT WAS RELATED TO THE TRANSFER. WE WOULD NOT OBJECT TO SUCH A DETERMINATION. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.