Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ November 16, 1998 _______________________________________________ GSBCA 14708-RELO In the Matter of DEAN C. WYATT Dean C. Wyatt, Tyler, MN, Claimant. Michael B. Zimmerer, Director, Budget and Finance Division, Office of Management, Food Safety and Inspection Service, Department of Agriculture, Washington, DC, appearing for Department of Agriculture. BORWICK, Board Judge. Claimant, Dean C. Wyatt, an employee of the Department of Agriculture (agency), seeks reimbursement of real estate transac- tion expenses for the sale of his residence upon his permanent change of station transfer from Pierce City, Missouri to Mar- shall, Minnesota. The agency denied claimant reimbursement of those expenses because his residence in Sioux City, Iowa, was not the place from which he regularly commuted to his job in Pierce City. Under those circumstances, the agency concluded that the Federal Travel Regulation (FTR) prohibited reimbursement of the expenses. We sustain the agency's decision, as the agency cor- rectly applied the FTR. In November 1997, claimant was rehired by the agency for a position in Pierce City, Missouri. At the time of his return to federal service, claimant and his family lived in Sioux City, Iowa. Claimant decided to maintain his residence in Sioux City to avoid disruption to his children's education. Claimant hoped for a promotion that might require him to relocate again; claim- ant did not want to subject his family to the stress of relocat- ing twice in a relatively short period. Real estate market conditions also contributed to claimant's decision to remain in Sioux City. Instead of moving his family from Sioux City, claim- ant traveled from Pierce City to Sioux City on occasional week- ends for visits. Accordingly, the agency granted claimant limit- ed relocation benefits for his rehire and did not pay expenses of selling his house in Sioux City. In May 1998, claimant applied for a promotion, and in June 1998, he was offered a promotion position--which he accepted--in Marshall, Minnesota. On June 26, the agency forwarded a service agreement and a letter stating that the agency would be prepared to "make the arrangements not only for the sale of your resi- dence, but also for the shipment of your household goods." The agency also advised claimant that if claimant were to use the relocation services program, such decision must be made before the agency issued the travel authorization. The agency requested claimant to complete a form (FSIS Form 3820-2) listing the bene- fits desired. Section IV of that form listed residence transac- tions with the notation, "Must be residence from which you commute daily." On July 4, claimant sent the completed form to the agency; under section IV, he had listed his house in Sioux City as the residence, and requested relocation benefits associated with selling that house. On July 22, the agency processed a travel authorization for claimant's transfer to Marshall which granted relocation benefits but did not include reimbursement of the expense of selling his residence in Sioux City. On July 24, an agency staffer called claimant and explained that the FTR prohib- ited reimbursement when the employee maintained a residence that did not serve as the employee's point of regular--i.e., daily-- commute to his official station. Claimant immediately wrote the agency requesting payment of the transaction expenses for the sale of his Sioux City residence. By letter dated August 20 the agency denied his request, and claimant appealed to this Board. We have discussed the law applicable to claimant's situa- tion: Statute provides that transferred federal employees may be reimbursed for "expenses of the sale of the resi- dence . . . of the employee at the old station and purchase of a home at the new official station required to be paid by him when the old and new official sta- tions are located within the United States." 5 U.S.C. 5724a (1994). Implementing that provision, the FTR says that the Government shall "reimburse an employee for expenses required to be paid by him/her in connection with the sale of one residence at his/her old official station." 41 CFR 302-6.1 (1994). The FTR also defines the term "official station": With respect to entitlement under this chap- ter relating to the residence and the house- hold goods and personal effects of an employ- ee, official station or post of duty also means the residence or other quarters from which the employee regularly commutes to and from work. However, where the official sta- tion or post of duty is in a remote area where adequate family housing is not avail- able within reasonable daily commuting dis- tance, residence includes the dwelling where the family of the employee resides or will reside, but only if such residence reasonably relates to the official station as determined by an appropriate administrative official. 41 CFR 302-1.4(k) (1994). The GAO [General Accounting Office] consistently held that for reimbursement for expenses of the purchase or sale of a residence, the requirement that the employee regularly commute from the residence in question con- templates commuting on a daily basis. Johnny W. Rei- sing, B-238086 (June 8, 1990); Donald R. Stacy, 67 Comp. Gen. 395 (1988); Irving R. Warnasch, B-193885 (June 8, 1979). The GAO also held that where an em- ployee maintains, and commutes from, living accommoda- tions in the near proximity of his duty station on a daily basis and only travels on weekends and holidays to a residence where his family lives, the weekend commute does not satisfy the FTR's requirement of regu- lar commuting. Donald R. Stacy; William T. Cook, B- 217518 (July 23, 1985). The notion that for purposes of entitlement to expense reimbursement, the regular commute must be daily is fully supportable when one considers the sentence of the regulation immediately following the FTR's definition of official station. That sentence defines residence as where the family of the employee resides or will reside, when the employee moves to a remote area and adequate family housing is not available within reasonable daily commuting dis- tance. Malcolm L. Jowers, GSBCA 13727-RELO, 97-1 BCA 28,800, 143,- 646.[foot #] 1 In this case, claimant's residence was in Sioux City and he did not commute daily from there to his old official station in Pierce City. Consequently, upon his transfer from Pierce City to Marshall, claimant was not entitled to resi- dence transaction expenses for the sale of his house in Sioux City. Cf. David A. Gates, GSBCA 14525-RELO, 98-2 BCA 29,809. Claimant notes that an agency staffer told him he would be "paid for his move." That broad statement can hardly be con- strued as a promise that the agency would reimburse claimant for his transaction expenses for the sale of his house in Sioux City. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The statutory provision cited in Jowers now ______ appears, with minor changes in wording, at 5 U.S.C. 5724a(d)(1)(Supp. II 1996). The regulatory provisions cited remain unchanged. ----------- FOOTNOTE ENDS ----------- Even if it could be so construed, the agency is not bound by advice of its employees that violates statute and regulation. James E. Black, GSBCA 14548-RELO, 98-2 BCA 29,876. The agency acted correctly in denying claimant's requested reimbursement. _______________________________ ANTHONY S. BORWICK Board Judge