Board of Contract Appeals General Services Administration Washington, D.C. 20405 April 15, 1998 GSBCA 14485-RELO In the Matter of VINCENT F. ARCONATI, JR. Vincent F. Arconati, Jr., Granite City, IL, Claimant. Robert H. Garfield, Chief, General Law Division, United States Army Aviation and Missile Command, Redstone Arsenal, AL, appearing for Department of the Army. GOODMAN, Board Judge. Claimant, Vincent F. Arconati, is a civilian employee of the Department of Defense (DoD). Following a permanent change of station (PCS) move, claimant requested reimbursement of real estate expenses incurred in the sale of his residence. The agency denied reimbursement, and he has requested this Board to review the agency's decision. Claimant is a former employee of the Program Executive Office (PEO), which was co-located with the United States Army Aviation and Troop Command (ATCOM) in St. Louis, Missouri. As a result of DoD's base realignment and closure (BRAC) for 1995, ATCOM was closed, with a major portion of its work force relocated to Redstone Arsenal in Huntsville, Alabama. The PEO was also relocated to Huntsville as part of the BRAC action. Claimant decided not to relocate to Huntsville. He was subsequently offered and accepted a position at Scott Air Force Base, Illinois, which is located in the metropolitan St. Louis commuting area, approximately twenty miles from downtown St. Louis. At the time, claimant was living in Granite City, Illinois. According to claimant, Granite City was closer to his old duty station at ATCOM in St. Louis than it was to his new duty station at Scott Air Force Base. Claimant's PCS orders to Scott Air Force Base stated his eligibility for various PCS allowances, including reimbursement of real estate expenses. When he submitted his claim for reimbursement of real estate expenses to the agency, the first 2 agency official to receive the claim questioned entitlement to such costs "because neither [claimant] nor his job moved outside the metropolitan St. Louis area." He forwarded the claim with a memorandum to the agency official with authority to make a determination. The memorandum read, in relevant part: In the event you determine [claimant's] change in residence was incident to his change in official duty station you should forward the claim, along with your determination, to . . . . On the other hand, if you determine the change in residence was not incident to his change in official duty station, the claim would be denied in its entirety. [Claimant] . . . informed me that his new residence is about five miles closer to his new duty station than his former residence and that it takes about 10 minutes to drive from his former residence to his new residence. In making your determination, you need to consider routes, distances, and commuting times between: (a) his former residence and his present and former duty stations, (b) his former residence and new residence, and (c) his new residence and his present and former duty stations. . . . For your information I have attached a copy of a 1991 Comptroller General Decision, Michael Mahaffey, B- 243501 . . . that raises issues similar to the instant case and discusses this subject matter in some detail. The claim was ultimately denied by the agency, with the decision reading in relevant part: The Joint Travel Regulation Volume 2 states that authorization [for reimbursement of real estate expenses] can only be allowed if the relocation of the residence is incident to the transfer. In determining this, "the travel-approving official 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/her old residence to the new duty station is at least 10 miles greater than from the old residence to the old duty station. Even then, circumstances surrounding a particular case, for example, relative commuting time, may suggest that the relocation of residence was not incident to the transfer." Based on the information you provided [to the first agency official] the commuting time/distance between your new residence and new duty station is ten minutes/five miles closer than the time distance from 3 your previous residence and new duty station. It is apparent that your change in residence was not incident to the change in your official duty station. Therefore, your claim must be denied in its entirety. I have attached a copy of a 1991 Comptroller General Decision, Michael Mahaffey, B-243501 . . . that raises issues similar to your [sic] and discusses the subject matter in some detail. Claimant has requested that this Board review the agency's determination. He states that when he accepted the position at Scott Air Force Base, he was told by the manager in charge of the Priority Placement Program that he would be entitled to "PCS reimbursement for moving expenses." He also states that he was told by the individual who was the moving coordinator that "if the distance from [his] current home to the new duty station is 10 miles farther than [his] current home to [the] old duty station that [he] would be entitled to a PCS move to include reimbursement for all moving expenses." Claimant's travel orders authorized reimbursement of real estate expenses. Claimant states further that, based upon his travel orders, he decided that it would make sense to move closer to his new duty station. In his claim, claimant has detailed his attempts to locate a new residence closer to his new duty station, including entering into a contract on a house which would have saved him sixteen miles and fifteen minutes each way. This contract was contingent on the sale of claimant's house, which did not occur in sufficient time. The distances relevant to the claim are as follows: The distance between the old and new duty stations exceeds ten miles. The commute from claimant's old residence to the old duty station was thirty-one miles with a driving time of forty-five minutes. The commute from the new residence to the new duty station is twenty-five miles with a driving time of twenty-nine minutes according to claimant. Claimant states in his request for review to this Board: My decision to relocate was absolutely due to the transfer and not for my convenience. My old house was completely paid for, in good condition and completely adequate for our life style. I had no reason to want to move other than to cut down on the drive time to work. I have saved roughly 15 minutes and 6 miles each way. The key to shortening the commute is more in time related than mileage related. Additionally, in response to the agency, claimant states that by moving to his new residence, he has accomplished a twenty 4 percent reduction in mileage and thirty-six percent reduction in commuting time. He emphasizes that if one . . . considers the time I spent looking for suitable housing all throughout the commuting area, the fact that my house was put up for sale after the transfer of my job, the conversations I had with ATCOM personnel that notified me of my relocation entitlements, orders stating relocation expenses, and the relative savings in distance and time that it is easily discernable that my change in residence was absolutely incident to the transfer of my job and I am entitled to reimbursement of real estate expenses. Discussion As we recognized in Cheryl A. Cadwell, GSBCA 14148-RELO, 97-2 BCA 29,066, "[g]enerally when an employee is transferred in the interest of the Government from one official permanent duty station to another, the Government, in accordance with regulatory prescriptions, is to pay the expenses the employee incurs in selling his residence at the old station and buying a home at the new one. 5 U.S.C. 5724a(a)(4) (1988); 41 CFR 302-1.3(a)(1), pt. 302-6 (1993)." Further, we noted that "[w]hen the old and new stations are within a short distance of each other, special rules apply." The criteria for PCS allowances for the same city or area moves for civilian employees of DoD are set forth in the Joint Travel Regulations (JTR), Volume II, paragraph C4108, which reads as follows: Travel, transportation and other related allowances, as applicable, will be authorized incident to a PCS even though the old and new PDSs [permanent duty stations] are located within the same city or area provided the transfer: 1. is in the interest of the Government, 2. is to a new PDS which is at least 10 miles distant from the old PDS, 3. is not primarily for the convenience or benefit of the employee or at his request, 4. relocation of the residence is incident to the transfer. In determining [if] the relocation of the residence is incident to the transfer, the travel-approving official should take into consideration such factors as 5 commuting time and distance between the employee's residence at the time of notification of transfer and his/her old and new duty stations as well as the commuting time and distance between a proposed new residence and the new duty station. Ordinarily, a relocation of residence should not be considered incident to a PCS unless the one-way commuting distance from the old residence to the new duty station is at least 10 miles greater than the old residence to the old duty station. Even then, circumstances surrounding a particular case, for example, relative commuting time, may suggest that the relocation of residence was not incident to transfer. At issue in this case is whether the real estate expenses incurred by claimant were incident to his permanent change of station. The agency determined that the claimant's change in residence was not incident to the change in the official duty station because even though the distance between the old and new duty stations exceeds ten miles, the reduction in mileage and driving time is not substantial. Thus, the agency's determination appears to be based solely on a distance comparison between the old residence and the old duty station and the new residence and the new duty station. Claimant's position is that his change in residence was clearly incident to his change in duty station because 1) the agency was aware of his intent to move based upon his transfer as the result of numerous conversations with the coordinating agency officials, 2) the agency authorized real estate expenses reimbursement in his travel orders prior to his move, and 3) the comparative reduction in commuting time was substantial, even though the reduction in commuting distance was less than ten miles. Claimant is correct. The focus of the analysis under the regulation must be whether the employee has moved incident to the permanent change in station. While the regulation speaks of a ten mile difference between the old and new commuting distance, this has been held not to be determinative if there is clear evidence that the change in residence was incident to the permanent change of station. In fact, for a relocation to be incident to a transfer of duty station, the Comptroller General has held that the change of residence need not invariably result in less commuting time and distance. See, e.g., Harvey Knowles, 58 Comp. Gen. 319 (1979); 54 Comp. Gen. 751 (1975) (reimbursement of real estate expenses allowed where employee moved only one mile away from his former residence); E. L. Carney, B-172705 (May 28, 1971) (expenses allowed where distance between old and new residence was 7/10 mile). 6 There is no evidence in the record that the expenses claimed were not incurred in a good faith effort by claimant to relocate in the vicinity of his new duty station incident to his transfer. The agency does not impugn claimant's motives in moving, nor deny claimant's allegations of his actions in attempting to move closer to his new duty station. The agency's post hoc determination that claimant's relocation was not "incident to his transfer" based solely on a distance calculation is contrary to the criteria set forth in the relevant regulation, and contrary to the information it possessed when it issued the claimant's travel orders, i.e., that the claimant intended to move closer to his new duty station. The relevant facts -- the timing of claimant's relocation, the location of his new residence closer to the new duty station, the failed attempt by claimant to move even closer to the new duty station, and his consistent statements to the agency move coordinating officials that his job transfer was the primary cause of his move -- support the conclusion that claimant's move was incident to his transfer. See, e.g., Dana Riser, GSBCA 14017-RELO, 98-1 BCA 29,417 (1997).[foot #] 1 As such, claimant is entitled to be reimbursed his real estate expenses to the extent permitted under statute and regulation. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The case cited by the agency in its determination, Michael Mahaffey, B-243501 (Aug. 20, 1991), is not ________________ factually similar to claimant's situation. In that case, a federal employee who had lived in his residence for a year following his transfer claimed real estate expenses arising from the sale of his residence when moving closer to his new duty station. Because of the length of time in the old residence after the transfer, and the short distance between the old and new residence, the agency in that case determined that the move was not incident to the transfer. In contrast, claimant's move was initiated shortly after he knew of his transfer and concluded soon thereafter, and was clearly incident to his transfer. ----------- FOOTNOTE ENDS ----------- 7 Accordingly, claimant is entitled to real estate transaction expenses on the sale of his old residence and purchase of his new residence. We direct the agency to review the specifics of the claim and to reimburse claimant for all expenses which are allowable under the relevant regulations. _________________________ ALLAN H. GOODMAN Board Judge