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June
29, 2009
CBCA
1469-RELO
In
the Matter of GREGORY A. THESSEN
Gregory
A. Thessen, Indianola, IA, Claimant.
Diane
Eggert, Chief, Travel and Relocation Services Branch, Financial Management
Division, Agricultural Research Center, Department of Agriculture, Beltsville,
MD, appearing for Department of Agriculture.
VERGILIO, Board Judge.
Regulation
states that an employee limits his entitlement to reimbursement of relocation
expenses by opting to utilize a contracted-for relocation service. This claimant, who used a relocation
contractor in the guaranteed sale of his residence, may not recover the closing
costs or homeowner warranty costs paid by the claimant to effectuate the sale
of his home. This result is reached
because the itemized and allocated costs in the agreements between the
claimant-seller and relocation company-purchaser are subsidiary to the services
the claimant received and for which the Government has paid for the residence
sale.
On
January 2, 2009, the Board received a claim from Gregory A. Thessen (a civilian
employee of the Government) regarding a relocation arising from a permanent
change of duty station within the continental United States. In March 2008, the claimant opted to utilize
a relocation services contractor and a guaranteed purchase option for home sale
services. The claimant found the
eventual buyer. In order to accomplish
the sale, the claimant made concessions.
Based upon an ultimate offer from that buyer, the relocation contractor
purchased the residence from the claimant and resold the residence to the buyer
found by the claimant. A statement of
equity for the sale between the claimant and relocation contractor indicates
that the claimant was charged $11,000 in closing costs and $407 for a home
warranty. These costs, among others,
were deducted from the sale price to arrive at the total amount that the
claimant received from the relocation contractor. In addition to these two amounts, the
claimant also seeks $30 for a facsimile of a payoff quote fee from his mortgage
company. The support for the $30 charge
is a copy of the claimant=s mortgage loan statement, which identifies the amount
as a miscellaneous fee with the description as Apayoff
quote faxfee[.]@
The
agency has denied the claimant=s request to be paid each of these costs. The agency maintains that the claimant is not
eligible to recover these costs under provisions of the applicable Federal
Travel Regulation (FTR). The agency
relies upon a specific provision:
If
I use a contracted-for relocation service that is a substitute for reimbursable
relocation allowance, will I be reimbursed for the relocation allowance as
well?
No,
if you use a contracted-for relocation service that is a substitute for
reimbursable relocation allowance, you will not be reimbursed for the
relocation as well.
41 CFR 302-12.5
(2008) (FTR 302-12.5). While the agency
asserts that the closing costs and home warranty costs could not be reimbursed
for reasons apart from this relocation provision, the Board does not reach
those matters; nor is it relevant that the claimant obtained money under a home
sale incentive program for assisting in the sale of the residence.
This
Board has concluded that the regulation, with its Asubstitute for@
language, does not act as an absolute bar to a claimant=s recovery of costs incurred in the sale of a
residence under a home sale program.
Thus, when a claimant=s travel authorization and an agency=s implementing guidelines did not specify that use of
a relocation contractor would preclude recovery of all or specific costs
incurred in the sale of a residence, the Board has held that a claimant would
recover the amounts of a pre-payment penalty of a loan and a termination fee of
a loan, Andres Arredondo, CBCA 647-RELO, 07-2 BCA & 33,650, and that a claimant could recover the
fee it was charged for the cancellation of a home equity line of credit and
notary fees, unless a relocation services contractor=s fee included payment for such expenses. Edward D. Russell, CBCA 1083-RELO,
08-2 BCA & 33,879.
These charges arose under agreements between the employee and a lender;
the charges were incurred because of the relocation, but not with respect to
the terms and conditions of the sale of the residence.
In
this case, agency guidelines do no more than mirror the language of the
regulation; they do not specify an absolute right or bar to the recovery of
costs; that is, the guidance does not state that if the employee utilizes a
relocation contractor in the home sale program the employee will be eligible or
ineligible to receive any reimbursement relating to the sale of a
residence. The claimant, who bears the
burden of proof for recovery, Rule 401 (48 CFR 6104.1 (2008)), must establish
entitlement under the regulations.
The
closing costs and warranty costs are factors in the sale of the residence by
the claimant and the purchase by the relocation contractor; the costs impact on
the net the claimant receives. As such,
the costs are tied to the services provided by the relocation contractor (and
paid for by the Government) in purchasing the residence and may not be
separately reimbursed by the agency to the claimant. The claimant may not recover what it
describes as closing costs and costs for a home warranty.
In
contrast to the items affecting the terms and conditions of the sale, the
claimant seeks payment of a fee incurred to obtain a facsimile of a payoff
quote. The claimant has failed to
provide details demonstrating that the service was necessary to satisfy a
requirement of the relocation actions, as opposed to utilized simply for the
personal convenience of the claimant. Edward
D. Ellis, GSBCA 16763-RELO, 06-2 BCA & 33,304. Without such information, the claimant has
not met his burden of proof to recover the facsimile charge.
The
claimant is not entitled to the reimbursements sought.
____________________________
JOSEPH
A. VERGILIO
Board
Judge