BNUMBER: B-261836
DATE: November 13, 1995
TITLE: Terry W. Gravatt
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Matter of:Terry W. Gravatt
File: B-261836
Date: November 13, 1995
DIGEST
A Department of Defense (DOD) civilian employee listed his residence
for sale in anticipation that the base at which he worked would be
closed and went to settlement on the residence before registering with
the agency's job placement program. The agency questions whether the
employee may be reimbursed real estate expenses for the sale of his
residence based on an agency regulation allowing reimbursement of real
estate expenses for employees who are registered in the placement
program. The employee may be reimbursed. Neither the regulation nor
our decision in Kirk S. Peters, B-249451, Jan. 7, 1993, which is cited
in the regulation, requires employees to be registered in the
placement program to receive reimbursement for real estate expenses.
Rather, employees may be reimbursed real estate expenses incurred
after an agency has demonstrated a clear administrative intent to
transfer the employee and the employee is transferred and signs an
employment agreement. Although registration in the agency placement
program is evidence of an intent to transfer, agencies may look to all
the facts of a particular case to determine whether this intent
existed. In this case, the employee was acting on information that
the base was about to be closed and that an offer to assist him in
finding another job would be forthcoming.
DECISION
The Defense Finance and Accounting Service (DFAS) requests a decision
on Mr. Terry W. Gravatt's claim for real estate expenses incident to
his permanent change-of-station from the Naval Aviation Depot (NADEP),
Pensacola, Florida, to a similar facility in Jacksonville, Florida.
We approve payment of the claim.
BACKGROUND
Mr. Gravatt listed his residence for sale on July 15, 1993, knowing
that there was a strong possibility that the Pensacola NADEP would be
closed. The base was on the list of bases to be closed submitted to
the President by the Base Closure and Realignment Commission, which
the President formally accepted on July 1, 1993. Congress confirmed
the list on September 20, 1993. On September 22, the Base Commander
notified the employees of this event through a newsletter and stated
that he had requested permission to allow the base employees to
register in the Automated Stopper and Referral System (ARARS), which
is a Department of Defense (DOD) job placement program that used to be
known as the Priority Placement Program (PPP). Meanwhile, employees
were encouraged to preregister with the ARARS, which Mr. Gravatt did
on September 23. The agency approved the Commander's request on
November 5.
While these actions were taking place, Mr. Gravatt arranged for the
sale of his residence, which went to settlement on September 24. He
also began looking for jobs in the Jacksonville area, before formally
registering with ARARS. He states that he applied to the Defense
Outplacement Referral System and applied to a variety of job openings
at a NADEP Jacksonville job fair. Through these efforts, rather than
through the ARARS, Mr. Gravatt received a job offer at the
Jacksonville NADEP, which he accepted. Subsequently, the agency
issued him travel orders to report there effective November 29, 1993.
At issue is whether Mr. Gravatt's claim complies with a department
regulation that provides, in relevant part:
The general rule is that an employee may be reimbursed for real
estate expenses incurred before, and in anticipation of, a
transfer, if a clearly evident administrative intent to transfer
the employee exists at the time the expenses are incurred. (58
Comp. Gen. 208 (1979). The Comptroller General of the U.S. ruled
in B-249451, dated 7 January 1993, that the announcement of a
base closure, accompanied by an offer to assist in finding new
positions for affected employees, is considered a clearly evident
intent to transfer such employees. Registering an employee in
the . . . PPP constitutes an offer to assist in finding a new
position. Employees registered in the PPP or other placement
program, who sell their residence in anticipation of a (permanent
change-of-station), may be entitled to reimbursement of expenses
related to the sale of a residence when transferred to a new
(permanent duty station), if otherwise eligible under this
Chapter. Joint Travel Regulation, Vol. 2, C1400(4)(a).
The submission from DFAS recommends approval of Mr. Gravatt's claim on
the grounds that the command had clearly demonstrated an intention to
assist the employee to find other employment at the time of the
closing on his house. However, the submission questions whether the
sale of Mr. Gravatt's residence before he formally registered in the
PPP disqualifies him from reimbursement for those expenses based on
the regulation quoted above.
OPINION
As we noted in Kirk S. Peters, B-249451, Jan. 7, 1993, which is cited
in the agency's regulation, the primary statutory requirements for the
reimbursement of real estate expenses are that the employee be
"transferred in the interest of the government from one official
station or agency to another for permanent duty . . ." and that the
employee agrees in writing to remain in the government service for 12
months after the transfer. 5 U.S.C. 5724 (1988). The latter
requirement is not at issue here.
The requirement that the transfer be in the interest of the government
ensures that the expenses claimed are attributable to the transfer.
This determination is not subject to rigid rules, but rather, depends
on the facts of each particular case. Caridad A. Smith, B-204480,
June 8, 1992; Richard E. Fitzgerald, B-186764, March 3, 1977.
Nonetheless, the general rule stated in the agency's regulation is
correct: evidence of a clear administrative intent to transfer an
employee before any real estate expenses are incurred in most cases
will be sufficient to establish that the employee incurred the
expenses incident to the transfer. Kirk S. Peters, supra. In making
this determination, agencies have broad discretion. Joseph L. White,
58 Comp. Gen. 208 (1979).
We do not view the language in the agency's regulation regarding
registration in the PPP as limiting this general rule. Certainly,
registration in the PPP is evidence of an administrative intent to
transfer an employee. However, neither the regulation nor our
decision in Kirk S. Peters, supra, states that only employees
registered in the PPP are eligible for reimbursement for real estate
expenses or that registration is a requirement for reimbursement.
Rather, an agency's offer to assist an employee find other employment,
through the PPP or a similar program, simply is an example of the type
of evidence that satisfies the general rule stated in the first
sentence.
In this case, when Mr. Gravatt listed his home for sale, he was acting
on information that the base likely would be closed and that an offer
to assist him in finding other employment would be forthcoming. In
fact, the agency placed him in another position at another base in a
matter of a few weeks and issued him travel orders authorizing
relocation expenses. Given the closeness in time of the announcement
of the base closure list, Mr. Gravatt's decision to list his residence
with a realtor and the agency's subsequent transfer of Mr. Gravatt to
another base, we agree with the Commanding Officer and DFAS that the
sale of Mr. Gravatt's residence was incident to his transfer.
Accordingly, his claim may be paid.
/s/Seymour Efros
for Robert P. Murphy
General Counsel