September 27, 2007
CBCA 805-RELO
In the Matter of LARRY A. RIVES
Larry A. Rives, El Paso, TX,
Claimant.
Mark B. McMurry, Office of
General Counsel, United States Army Corps of Engineers, Fort Worth, TX,
appearing for Department of the Army.
STERN, Board
Judge.
Mr. Larry A. Rives has asked
the Board to review the denial of his
claim for certain relocation expenses associated with his move from Hot Springs
Village, Arkansas, to Horizon City, Texas.
Specifically, Mr. Rives seeks reimbursement of $8181.13, for the
expenses incurred in the sale of his old home at his former duty location.
Background
According to Mr. Rives, in
March 2005, personnel at the Little Rock, Arkansas, District of the United
States Army Corps of Engineers and he discussed a possible move to the Corps of
Engineers office at Fort Bliss, Texas, for him to assist in base realignment
and closing proceedings. This potential
move appealed to Mr. Rives since he was told that he might receive a promotion
and because he believed it would be beneficial to his wife=s health. Mr.
Rives applied for the position in Texas.
In late 2005, Mr. Rives learned that he had not been selected for the
position. However, in anticipation of
the move, Mr. Rives purchased a house in Texas.
Mr. Rives does not seek any costs associated with this purchase.
Mr. Rives then became aware of another position (a lateral move for Mr.
Rives) that would be available at the Fort Bliss location. He applied for that position. On May 17, 2006, management personnel at Fort
Bliss and Little Rock agreed to transfer Mr. Rives to this position in
Texas. The Corps of Engineers stated
that until a position was found for Mr. Rives, it did not make a final decision
to transfer him to the new location.
During this period, Mr. Rives
sold his property in Arkansas. He
executed a contract for the sale of that property on April 12, 2006. The closing on that property was held on
May 18, 2006.
Mr. Rives= travel orders authorized payment for real estate
expenses. His request for payment of
$8181.13 was initially approved by the Corps of Engineers, but subsequently
denied on review.
Discussion
A government agent may not
authorize the reimbursement of expenses in contravention of the law. Flordeliza Velasco-Walden, CBCA
740-RELO, 07-2 BCA & 33,634.
Therefore, the initial approval of payment of Mr. Rives= housing expenses is of no assistance to Mr. Rives if
reimbursement is otherwise prohibited by law.
Statute and regulations
establish the criteria for reimbursement of relocation expenses.
An employee who, in the interest of the Government, is
transferred from one duty station to another is entitled to the reimbursement
of relocation expenses if he remains in government service for a period of
twelve months after the transfer. 5
U.S.C. ' 5724 (2006); JTR C14000-A.
However, relocation expenses may be reimbursed
only when they are incident to the
transfer from the old to the new station. Marko Bourne, GSBCA 16273-RELO,
04-1-BCA & 32,544 (2003).
The General Services Board of Contract Appeals, our predecessor board in
deciding relocation appeals, established that the controlling factor is whether
the agency has manifested an intent to transfer the employee at the time the
expenses are incurred. Michael L.
Scott, GSBCA 16310-RELO, 04-1 BCA &
32,526 (2003). Where a contract for
purchase or sale is entered into prior to the agency=s indication of an intent to transfer the employee, Athe transaction will be considered to have been
entered into for some reason other than the transfer. That reason may have been anticipation of a
transfer, but unless the transfer has been announced, anticipation is
insufficient to make the sale incident to the transfer.@ Peter J.
Grace, GSBCA 16790-RELO, 06-1 BCA &
33,219 at 164,635 (citing Bourne); see Gary J. Tennant,
CBCA 553-RELO, 07-1 BCA & 33,558.
Thus, in an earlier case, even
though an employee believed that an employment offer had been made, it was held
that the expenses of the sale of a house were not reimbursable since the formal
notification of transfer to the new position was not made until after the
contract of sale was executed. Connie
F. Green, GSBCA 15301-RELO, 01-1 BCA &
31,175 (2000). Only where special
circumstances exist which equate to an administrative intent to transfer an
employee, such as a potential reduction in force or the closing of an office,
have the expenses of sale been allowed prior to the official notification of
definite employment at the new location.
See id., and cases cited therein.
No such special circumstances
are present here. Mr. Rives is entitled
to reimbursement of his house selling expenses only if he entered into the
contract of sale after the Corps of Engineers announced the transfer and
thereby manifested the intent to transfer him.
While the Corps of Engineers sought to transfer Mr. Rives, it agreed to
do so only if a position at the new location in Texas became available and Mr.
Rives accepted the transfer. It was not
until May 17, 2006, that the Corps of Engineers identified a position that Mr.
Rives could fill. We find it was not
until then that the Corps manifested an intent to transfer Mr. Rives to the
position. Therefore, Mr. Rives= execution of the contract for sale of his residence
on April 16, 2006, was not incident to the transfer.
Decision
Mr. Rives= expenses of sale of his residence are not
reimbursable by the Corps of Engineers.
___________________________
JAMES L. STERN
Board Judge