Board of Contract Appeals General Services Administration Washington, D.C. 20405 January 28, 2000 GSBCA 15166-RELO In the Matter of RICHARD S. CITRON Richard S. Citron, Chicago, IL, Claimant. Bonnie Britten, Chief, Travel Policy Division, Office of Administration, Department of Veterans Affairs, Washington, DC, appearing for Department of Veterans Affairs. DANIELS, Board Judge (Chairman). The Department of Veterans Affairs (VA) recently transferred Richard S. Citron to Chicago, Illinois, to serve as Director of the VA Medical Center (VAMC) there. The agency asks us to advise it, pursuant to 31 U.S.C. 3529 (Supp. III 1997), whether it may reimburse Mr. Citron for expenses he may incur in selling his residence in Pittsburgh, Pennsylvania, subsequent to his relocation. We believe that the VA should make reimbursement, consistent with the provisions of the Federal Travel Regulation, 41 CFR ch. 302-6 (1999). Background During 1993, Mr. Citron was employed at the VAMC in Pittsburgh. At the end of that year, the agency transferred him to the Cleveland, Ohio, VAMC. Mr. Citron lived in station quarters at the Cleveland VAMC from January 1994 until May 1998. In May 1998, while Mr. Citron was still permanently assigned to Cleveland, the agency sent him on a long-term temporary duty assignment to the VAMC in Murfreesboro, Tennessee. The employee gave up his station quarters in Cleveland and moved into station quarters in Murfreesboro. While Mr. Citron was still working in Murfreesboro, on September 24, 1999, agency officials (including his first-line and second-line supervisors and an individual with department-wide responsibilities) informed him that the VA Secretary had approved his appointment as Director of the VAMC in Chicago. This appointment involved selection for a position in the Senior Executive Service (SES). Initial appointments to the SES must be approved by an Office of Personnel Management (OPM) qualification review board. 5 U.S.C. 3393(c) (1994); 5 CFR 317.502 (1999). The VA officials told Mr. Citron that he would receive the job if OPM gave its approval to the SES selection. OPM almost always approves the VA's SES selections, and it generally does so promptly. At the end of October 1999, Mr. Citron's temporary duty assignment to Murfreesboro ended and he returned to his permanent duty station in Cleveland. During the entire period of time from January 1994 to October 1999, Mr. Citron's family remained in the Pittsburgh residence. The employee returned there on weekends. He also maintained that home as his official residence for tax, payroll, voting, and all financial and health transactions, and he received all his mail there. Mr. Citron began his final tour of duty at the Cleveland VAMC on November 1, 1999. Within a day or two of this date, he was informed that OPM had approved his selection to the SES. He commuted from his Pittsburgh residence to the Cleveland VAMC on November 1 and every other one of the ten days on which he worked until he left for Chicago on November 17. The VA informed Mr. Citron in writing on November 8 that he would be assigned to the Chicago VAMC on November 21. The agency did not issue travel orders to the employee until after he had arrived in Chicago. Discussion When an agency transfers an employee from one permanent duty station within the United States to another such place, in the interest of the Government, the employee is entitled to be reimbursed for "expenses of the sale of [his or her] residence . . . at the old official station." 5 U.S.C. 5724a(d)(1) (Supp. IV 1998). (This rule is subject to constraints contained in statute and regulation. Id. 5724a(d)(4)-(7); 41 CFR ch. 302-6.) The term "official station" means, for the purpose of this entitlement, "the residence or other quarters from which the employee regularly commutes to and from work" "at the time he/she was first officially notified by competent authority of his/her transfer to the new official station." 41 CFR 302-1.4(k), -6.1(d); see Michael L. Martin, GSBCA 13821-RELO, 97-2 BCA 29,142. In interpreting these provisions of law, the Board has consistently held that "regular commuting" means commuting on a daily basis; a weekend commute does not satisfy the regulation's requirement. David A. Gates, GSBCA 14525-RELO, 98-2 BCA 29,809; Ezzat Asaad, GSBCA 14484-RELO, 98-1 BCA 29,667; Will C. LaVeille, GSBCA 14070-RELO, 97-2 BCA 29,139; Malcolm L. Jowers, GSBCA 13727-RELO, 97-1 BCA 28,800. The question of what event marks the first official notification of transfer is not one which we have previously examined. The General Accounting Office (GAO), our predecessor in settling claims by federal civilian employees for relocation expenses incident to transfers of official duty station, held that the determination "depends on the specific circumstances of each case." John W. Chambers, B-260456 (June 4, 1996). While a written directive is clear evidence of official notification, GAO felt that oral communications may also suffice -- even where they make a transfer contingent on the occurrence of a particular event. Id.; Caridad A. Smith, B-204480 (June 8, 1982); James H. Hogan, B-191912 (Apr. 5, 1979). The VA, in asking for our advice, is especially concerned about the time of occurrence of the first official notification that Mr. Citron would be transferred to Chicago. Oral communication from high-level officials -- albeit with a contingency (OPM approval of selection for an SES position) -- came when the employee was on a long-term temporary duty assignment. The fact that the contingency had been removed was made known to the employee after he had returned to his permanent duty station, and a written directive was not issued until even later. In our view, this issue is not material to Mr. Citron's eligibility for reimbursement of expenses he might incur in selling his home in Pittsburgh. Thus, we need not decide here whether to adopt GAO's case-by-case approach to the time of occurrence of first notification. When written notice was issued, Mr. Citron was clearly commuting on a daily basis from his Pittsburgh home to his duty station, and therefore was eligible for reimbursement of the expenses in question. When the earlier oral notice was given, he was on a long-term temporary duty assignment. Although on rare occasions an employee may purchase a residence at a long-term temporary duty station (see Ron Myers, GSBCA 14219-RELO, 98-1 BCA 29,409(1997)), the Government cannot expect an employee to commute from his or her home to a such a location. In the unusual situation in which notification of transfer occurs while the employee is on long- term temporary duty, the "regular commute" test loses meaning. The issue becomes what residence the employee would have commuted to and from, had he or she been traveling each day to the permanent duty station. Cf. Regina V. Taylor, GSBCA 13650-RELO, 97-2 BCA 29,089 (citing Charles P. Ball, B-223407 (June 18, 1987); Frank M. Lindeen, B-188657 (Dec. 30, 1977)) (non-occupancy of home due to Government action does not preclude reimbursement). During the entire period of time that Mr. Citron was on temporary duty, the Pittsburgh residence was his one and only home. Thus, it was the only place from which he might have made the commute to his permanent duty station. Consequently, even if the oral notice is viewed as the first official notification of the transfer to Chicago, Mr. Citron is eligible for reimbursement of expenses incurred in the sale of his Pittsburgh home. The fact that Mr. Citron did not sell this house as a result of his 1994 transfer from Pittsburgh to Cleveland is irrelevant to the question posed now. The 1999 transfer from Cleveland to Chicago is an entirely different matter, and it triggers a new analysis of the employee's entitlement to reimbursement. _________________________ STEPHEN M. DANIELS Board Judge