BNUMBER:  B-256002.2
DATE:  July 2, 1996
TITLE:  Kenneth E. James-Reconsideration

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Matter of:Kenneth E. James-Reconsideration

File:     B-256002.2

Date:July 2, 1996

DIGEST

An employee signed a contract on September 14, 1990, to construct a 
new residence near the location which eventually became his new 
permanent duty station and on May 14, 1991, the employee settled on 
his new residence.  The agency subsequent to the settlement date, 
established a new position, and by memorandum, dated January 21, 1992, 
it reassigned him to that new position, effective April 19, 1992.  
Employee's claim for reimbursement of real estate purchase expenses is 
denied since there was no clear administrative intent to transfer him 
at the time when his expenses were incurred.  Kenneth E. James, 
B-256002, June 2, 1994, reconsidered, clarified, and affirmed.

DECISION

Mr. Kenneth E. James requests that we reconsider our decision, Kenneth 
E. James, B-256002, June 2, 1994, which denied his claim for real 
estate purchase expenses.  For the following reasons, we reconsider, 
clarify, and affirm that prior decision.

BACKGROUND

In our prior decision on this matter, we found that on September 14, 
1990, Mr. James signed a contract for a new residence to be 
constructed near Portland, Oregon, the location which eventually 
became his new permanent duty station, that he settled on his new 
residence on May 14, 1991, and that the Department of Veterans Affairs 
did not actually transfer him from Palo Alto, California, to Portland, 
Oregon, until April 22, 1992.  Although he asserted that a memorandum, 
dated April 30, 1991 (prior to his settlement date), showed 
administrative intent to transfer him, we denied his claim because 
there was no clearly existing administrative intent to transfer him at 
the time he signed the construction contract on September 14, 1990.

In his request for reconsideration, Mr. James contends that our prior 
decision disregarded 48 Comp. Gen. 395 (1968), that he satisfied the 
requirements of Joan E. Marci, B-188301, Aug. 16, 1977, and that a 
Department of Veterans Affairs letter, dated June 23, 1989, written by 
Dr. Daniel Deykin to Mr. James, shows administrative intent to 
transfer him.

While we did not mention the following facts in our previous decision, 
they are helpful in resolving this reconsideration.  In a letter from 
Daniel Deykin, M.D., to Mr. John Crabb at the Portland VAMC, dated 
June 28, 1991, the possibility of Mr. James's transfer was also 
discussed, and it was noted that administrative procedures to 
accomplish the transfer, including the development of a position 
description were in process.  The focus of the letter was to plan the 
transfer with an outside target date of September 30, 1991.  However, 
while the target date was not met, the Department of Veterans Affairs 
subsequently established the position, and by memorandum dated January 
21, 1992, it informed Mr. James that his reassignment to the newly 
established position in Portland, Oregon, would take effect on April 
19, 1992.  (The actual transfer date was April 22, 1992, when he 
reported for duty in Portland.)

In regard to Mr. James's first contention that our prior decision 
disregarded 48 Comp. Gen. 395 (1968), we note that this is not so.  
Our prior decision did not have to address that case since we found 
that the employee in 48 Comp. Gen. 395 (1968) had received definite 
notice that his permanent station was being transferred, while Mr. 
James did not.  Furthermore, we also note that Mr. James contends 
again that there is a conflict in our decisions, in regard to a 
previously existing administrative intent to transfer an employee, as 
to whether the date of the contract signing to construct a new 
residence or the date of settlement on a newly constructed residence 
is controlling in order for the employee to be reimbursed for real 
estate purchase expenses.  We do not necessarily agree with Mr. 
James's contention, and in any event we need not decide that issue 
here, since under the circumstances of the instant case the position 
to which Mr. James was transferred was not even established until well 
after May 14, 1991 (his date of settlement).  In other words, whether 
our prior decision should have used the date of settlement or the 
earlier date of the contract signing is irrelevant to the result which 
properly denied Mr. James's claim.  Thus, Kenneth E. James, B-256002, 
June 2, 1994, is clarified.

We will now consider Mr. James's second and third contentions in 
tandem since they both relate to the two criteria set forth in Joan E. 
Marci, B-188301, Aug. 16, 1977.  There, we held that an employee who 
had relocated her residence prior to the issuance of travel orders may 
not be reimbursed for relocation expenses unless it is shown that (1) 
there was a previously existing administrative intention to transfer 
her which was clearly evident at the time the expenses were incurred, 
and that (2) the agency determines that the move was incident to the 
transfer.  See also John Chambers, B-260456, June 4, 1996, and Caridad 
A. Smith, B-204480, June 8, 1982.

Our review of all the various letters and memoranda which Mr. James 
cites show that they only discussed the possibility of his transfer 
after a new position for biostatistician had been established by the 
Department of Veterans Affairs in Portland, Oregon.  These letters and 
memoranda clearly cannot demonstrate a previously existing 
administrative intention to transfer Mr. James, especially since the 
new position was not even established until well after his May 14, 
1991, date of settlement and Mr. James was first notified of his 
reassignment to the new position by a memorandum, dated January 21, 
1992, with an effective date of April 19, 1992.

Accordingly, upon full reconsideration of all the facts, we affirm our 
prior decision in this matter and Mr. James's claim is denied.

/s/Seymour Efros
for Robert P. Murphy
General Counsel