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October 30, 2008
CBCA
1247-RELO
In
the Matter of ROBERT L. MCCALL
Robert
L. McCall, El Paso, TX, Claimant.
Cheryl
Holman, Chief, PCS Travel Team, Financial Services Center, Department of
Veterans Affairs, Austin, TX, appearing for Department of Veterans Affairs.
SHERIDAN, Board Judge.
Claimant,
Robert L. McCall, is an employee of the Department of Veterans Affairs
(VA). He has asked this Board to review
the agency=s determination that claimant was not entitled to
reimbursement of closing costs associated with his purchase of a home.
Claimant
was issued travel orders for a permanent change of station (PCS) move from
Arizona to his new duty station in Albuquerque, New Mexico. As part of the relocation expenses, claimant
was authorized to be reimbursed certain costs associated with the purchase of a
residence at his new duty station. He
purchased a home in El Paso, Texas. The
home is 266 miles from his new duty station, and a three hour, forty-three
minute one-way commute.
Claimant
completed his PCS and the VA paid for the relocation including certain closing
costs associated with the home purchase.
When the VA realized it had erroneously paid the costs associated with
the home purchase, it issued a bill of collection to recover the overpayment.[1]
By
statute, when an agency transfers an employee in the interest of the Government
from one permanent duty station within the United States to another, the agency
Ashall pay to or on behalf of [the] employee . . .
expenses of the . . . purchase of a residence at the new official station that
are required to be paid by the employee.@ 5 U.S.C. '
5724a(d)(1) (2000) (emphasis added). The
Federal Travel Regulation, which implements this statute, similarly states that
the purpose of an allowance for expenses incurred in connection with the
purchase of a residence Ais to reimburse [a transferred employee] for expenses
that [the employee incurs] due to . . . the purchase of a residence at [the
employee=s] new official duty station.@ 41 CFR 302‑11.1(a)
(2005) (emphasis added).
We
recently concluded in John Nobles, CBCA 1131-RELO, 08-2 BCA & 33,872, that a claimant was not entitled to
transaction costs associated with a home purchase because the home was not at
the employee=s new official duty station, and was not the residence
from which the employee regularly commuted on a daily basis. In deciding Nobles we looked to
well-established case law:
The
General Services Board of Contract Appeals, our predecessor in settling claims
by federal civilian employees for relocation expenses, repeatedly held that a
residence is Aat the new official station@ only if it is the one from which the employee
regularly commutes to and from work on a daily basis. Wendy J. Hankins, GSBCA 16324‑RELO,
04‑2 BCA & 32,686; Vincent P. Mokrzycki, GSBCA 16142‑RELO,
04‑1 BCA & 32,468 (2003); Richard H. Mogford, GSBCA 15958‑RELO,
03‑2 BCA & 32,348; Claude N. Narramore, GSBCA 15445‑RELO,
01‑2 BCA & 31,562; Elmer L. Grafford, GSBCA 14176‑RELO,
98‑1 BCA & 29,700; David M. Whetsell, GSBCA 14089‑RELO,
98‑1 BCA
&
29,610. In so holding, the General
Services Board was continuing the practice of the
General Accounting Office, which previously settled such claims. See Jesse Jackson,
Jr., B‑251559 (Mar. 31, 1993); Johnny W. Reising, B‑238086
(June 8, 1990).
08-2
BCA at 167,667.
Claimant
asserts he has no permanent residence in Albuquerque and in two years has
stayed in Albuquerque only once over the weekend. He says he is not an employee of the
Albuquerque VA Medical Center but is, rather, an employee of VA=s Office of Information and Technology, and his
supervisor is stationed in Tacoma, Washington.
These facts, as well as other facts alleged by claimant, even if true,
do not overcome the requirement that
claimant must commute daily from his residence in El Paso in order to be
reimbursed the costs associated with his purchase of the home.
Claimant
also asserts that the agency and his supervisor were fully aware that he
planned to purchase a home that was not within close proximity of his new duty
station. He asserts that his supervisor
stated that the purchase would not have any effect on his income or employment,
and posits he should not be held responsible for errors that other people
made. Incorrect advice provided by
government officials cannot create or enlarge entitlements that are not
provided by statute or regulation. Emily
G. Gibson, CBCA 1160‑RELO, slip op. at 2 (Aug. 28, 2008) (citing Federal
Crop Insurance Corp. v. Merrill, 322 U.S. 380 (1947) and Joseph E.
Copple, GSBCA 16849‑RELO, 06‑2 BCA & 33,332).
Although it is regrettable that claimant may have been given erroneous
advice concerning his eligibility for certain benefits in conjunction with his
PCS to Albuquerque, the agency nonetheless lacks the authority to pay these
expenses. Amos F. Jones, Jr.,
GSBCA 16305-RELO, 04-2 BCA & 32,677; Albert R. Wilcox, GSBCA 15776-RELO,
02-2 BCA & 31,864. The
statute and implementing regulations preclude payment of these expenses, even
in those situations where both the employee and his agency advisors mistakenly
believed the costs could be reimbursed.
In
this matter, the claimant does not commute daily from his home in El Paso to
his new duty station in Albuquerque.
Because of this, he is not entitled to be reimbursed the costs
associated with his purchase of the El Paso home.
Decision
The
agency determination is affirmed and the claim denied.
_____________________________
PATRICIA J.
SHERIDAN
Board Judge
[1] The amount of
the overpayment and subsequent bill of collection are not in the record, but
neither are they necessary for this decision.