November 15, 1996
                                                  


                             GSBCA 13658-RELO


                      In the Matter of PAUL B. GARVEY


     Paul B. Garvey, Niceville, FL, Claimant.

     Luz Turner, Outplacement Programs/PPP/PCS, Human Resources
Center, Naval Sea Systems Command, Arlington, VA, appearing for
Department of the Navy.

DANIELS, Board Judge (Chairman).

     Pursuant to the Federal Travel Regulation (FTR), if a federal
civilian employee is transferred from one official station to
another and various conditions are met, miscellaneous expenses
involved in the employee's sale and/or purchase of a residence
shall be reimbursed by the Government under certain circumstances. 
The circumstances are that the expenses "are customarily paid by
the seller of a residence in the locality of the old official
station or by the purchaser of a residence at the new official
station, to the extent they do not exceed specifically stated
limitations, or in the absence thereof, amounts customarily paid in
the locality of the residence."  41 CFR 302-6.2(d) (1995).

     In December 1994, Paul B. Garvey transferred from a duty
station with the Department of the Navy in the Washington, D.C.,
area, to Eglin Air Force Base in Florida.  In January 1995, in
connection with this move, he sold his home in Alexandria,
Virginia.  The Navy paid most of the expenses he incurred in
selling this house, but refused to reimburse him for three points
he paid at closing for the buyer of the house.  The agency
maintained that this sort of cost was not customarily paid by the
seller in Alexandria.

     The FTR says that the local or area office of the Department
of Housing and Urban Development (HUD) "will . . . furnish upon
request information concerning local custom and practices with
respect to charging of closing costs related to either a sale or
purchase, including information as to whether such costs are
customarily paid by the seller or purchaser."  41 CFR 302-6(c)
(1995).  After the Navy declined to reimburse Mr. Garvey for the
buyer's points he paid, he asked HUD to provide information
regarding the custom as to this matter in Alexandria during January
1995.  When HUD did not respond, Mr. Garvey filed a claim with the
General Accounting Office, asking that Office to get the
information for him.  This claim, along with all other claims for
relocation expenses incurred by federal civilian employees incident
to transfers, was subsequently reassigned to this Board for
settlement.  Legislative Branch Appropriations Act, 1996, Pub. L.
No. 104-53,  211, 109 Stat. 514, 535, (1995); Determination by
Acting Director of the Office of Management and Budget (June 28,
1996); Delegation of Authority from Acting Administrator of General
Services (July 17, 1996).

     We contacted the head of the local HUD office which serves
Alexandria, seeking information relevant to Mr. Garvey's claim. 
This gentleman told us that HUD does not have such information.  We
informed the claimant and the agency of this development, and
stated that we would consider any evidence either of them might
present.  We explained that examples of useful information were
affidavits or published documents from real estate brokers or
associations of brokers.  Mr. Garvey responded that he does not
have any documentation which might assist us in settling the claim. 
The Navy did not respond at all.

     Mr. Garvey suggests that because an agency of the Government
(HUD) is responsible for providing information as to the matter at
issue in this case -- local custom in Alexandria, Virginia, during
January, 1995, as to payment of a buyer's points at closing -- and
the Government has not come forward with this material, the
claimant should prevail.  This suggestion is not in keeping with
our practice.  Since the claimant is demanding payment from the
Government, the burden is on the claimant to show us why he should
prevail; in the absence of any information relevant to the matter
in dispute, the claim must be denied.  Rule 404(c) (61 Fed. Reg.
39,098 (1996) (to be codified at 48 CFR 6104.4(c)).  The
application of this rule to Mr. Garvey's situation is fair; the
form of real estate transactions in a particular community at a
particular time is equally accessible to the claimant and the
agency.  HUD's having failed to comply with its regulatory duty is
not an impediment to either side's ability to find and present to
us the information we need.





                                   _________________________
                                   STEPHEN M. DANIELS
                                   Board Judge