Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
                         _____________________
 
                            February 8, 2001
                         _____________________
 
 
                           GSBCA 15411- RELO
 
 
                     In the Matter of DEBRA JO DYER
 
 
        Debra Jo Dyer, Yucaipa, CA, Claimant.
 
        Gail  Diane Babbs, PCS Coordinator, VA Healthcare System San
   Diego, Department of  Veterans Affairs, San Diego,  CA, appearing
   for Department of Veterans Affairs.
 
   HYATT, Board Judge.
 
        Claimant, Debra Jo  Dyer, a computer specialist,  accepted a
   position with  the Department  of Veterans  Affairs (VA)  Medical
   Center  in San Diego, California, after working for approximately
   five years in  the private sector.   The Board has been  asked to
   review the VA's decision denying requested relocation benefits.
 
                               Background
 
        At the time that Ms. Dyer  accepted the position with the VA
   she owned a home in Yucaipa, California, some 120 miles and a two
   or more hour  drive from  San Diego.   She was  then employed  by
   Science Applications  International  Corporation  (SAIC)  in  San
   Diego and  enjoyed a  schedule under which  she was  permitted to
   telecommute  two to  three days  per week  and had  very flexible
   hours.   When she was  required to be in San  Diego for SAIC, she
   rented a single room to stay in.  This room was much like a motel
   room in that she left no personal  possessions in the room and it
   was available for use by others  on nights when Ms. Dyer did  not
   stay in San Diego.  
 
        When she  interviewed for the  position at the VA,  Ms. Dyer
   informed   the   Chief   Technology   Officer  that   she   lived
   approximately 120 miles from  the VA facility.  He  told her that
   the  position  required  the incumbent  to  be  readily available
   during non-duty hours in the event of system emergencies and that
   full  relocation  expenses   had  been  authorized.     With  the
   expectation that  the cost  of relocating to  San Diego  would be
   paid, Ms.  Dyer accepted  the position.   It was  only after  she
   commenced working  for the VA,  in September 2000, that  Ms. Dyer
   was informed that no relocation benefits would be available. 
 
 
        In  informing  Ms.   Dyer  that  she  is  not  eligible  for
   relocation  benefits  the  VA  explained  that  her  real  estate
   transaction  costs could not  be reimbursed because  after a five
   year  break  in  service  with  the  Federal  Government  she was
   regarded  as a  new  appointee  for   the  purpose of  relocation
   benefits.   In addition, the  VA believed that,  because claimant
   had  a room in  San Diego that  she stayed in  periodically while
   working for  her previous employer,  the home in Yucaipa  was not
   the  home  she regularly  commuted  from  when  she accepted  the
   position with the VA. 
 
                               Discussion
 
        By statute  and regulation, only  certain, limited  expenses
   may  be authorized  in connection  with the  relocation of  a new
   appointee.[foot #] 1         Agencies    are     authorized    to
   reimburse  the  travel  and  transportation  expenses  of  a  new
   appointee and  his or  her immediate  family, the  transportation
   expenses of household goods and personal effects, and the cost of
   shipping  a privately  owned  motor vehicle,  from  the place  of
   residence at the  time of selection to the  initial duty station.
   5 U.S.C.   5723 (Supp. IV 1998).   The Federal Travel  Regulation
   (FTR)  similarly  provides  for  the  payment  of  the  foregoing
   expenses, 41 CFR  302-1.10(a) (2000), and makes  clear that other
   expenses, such as the  cost of a house-hunting  trip, subsistence
   while  occupying temporary quarters,  residence sale and purchase
   expenses,  and lease-breaking costs may not be reimbursed for new
   appointees.  41 CFR 302-1.10(f); see Karen R. Brown, GSBCA 14871-
   RELO, 99-2  BCA    30,429; Charles G.  Bakaly, III,  GSBCA 14750-
   RELO, 99-1  BCA    30,249,  reconsideration  denied, 99-1  BCA   
   30,367.
   These regulations have the force and  effect of law.  Although it
   is unfortunate  that Ms.  Dyer received  inaccurate advice  about
   what relocation costs could be paid to  her, the VA simply has no
   authority to reimburse Ms. Dyer for real estate expenses that may
   be incurred in selling her home in Yucaipa and purchasing another
   residence closer to San Diego.  
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 Under the  applicable regulations,  new employees
   are   defined  as  including  not  only  individuals  when  first
   appointed  to government  service but also  individuals appointed
   after a  break in service.  An exception  to this rule exists for
   individuals  who resume  government  service  after  a  break  in
   service attributable  to a transfer  of function or  reduction in
   force.  41 CFR 302-1.10(a).  There is no indication in the record
   that  this  exception  would  apply  to  claimant.    See   Wendy
                                                         ___   _____
   Castineira, GSBCA 15092-RELO, 00-1 BCA   30,740 (1999).  
   __________
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The  remaining issue  is whether  Ms. Dyer  is eligible  for
   reimbursement of the expenses of transporting her household goods
   from Yucaipa to San Diego should she decide to relocate closer to
   the VA facility.   The VA is  concerned that because she  had the
   use of a room  available in San Diego when she  accepted the job,
   claimant's  residence for purposes  of  recovering  such expenses
   should be regarded to be  San Diego.  This concern is  based on a
   line of cases that hold that  an employee's place of residence is
   the location from which  he or she regularly commuted to  the old
   duty station.   See, e.g.,  Richard S. Citron,  GSBCA 15166-RELO,
   00-1  BCA     30,788; Ezzat  Assad,  GSBCA  14484-RELO, 98-1  BCA
     29,667; Malcolm L. Jowers, GSBCA 13727-RELO, 97-1 BCA   28,800.
 
        Ms. Dyer  has explained that  while she uses this  room more
   regularly now  that  she works  at the  VA, this  is because  her
   schedule  is  much less  flexible  than it  was  at SAIC.   While
   employed at  SAIC, Ms. Dyer  was permitted to telecommute  two to
   three days per week and was in  San Diego a few days per week  as
   her  projects required.   At  the  VA, Ms.  Dyer is  not  able to
   telecommute  and  must work  at  least  a four  day  week  with a
   compressed  work schedule.   She  is  also required  to be  there
   during  off-hours and  on weekends  to  perform maintenance  when
   necessary.   Claimant  was hired  with the  expectation  that she
   would maintain a permanent residence  in San Diego because of the
   need for her to be readily  available on weekends and after hours
   on weekdays to  address computer system emergencies,  which could
   have an adverse effect on medical center operations.  
 
        In this  case, while  employed at SAIC,  Ms. Dyer  worked in
   Yucaipa at least as much of the  time as she worked in San Diego.
   Thus, it  is not  entirely accurate to  find that  she "regularly
   commuted" from  the rented room  while she was employed  by SAIC.
   In essence, she had two places of employment, and did her best to
   minimize the time  spent in the rented room  because she regarded
   her home in  Yucaipa, where she maintains all  of her possessions
   and pets, to be her primary  residence.  These facts are somewhat
   analogous to the situation in Will C. LaVeille, GSBCA 14070-RELO,
   97-2 BCA    29,139, in which the  employee owned a home  some 130
   miles distant  from his workplace.   Although he  generally drove
   back and forth, he maintained a rented room close by to his place
   of  employment and  used it  when inclement  weather or  his work
   schedule made the commute  to his home infeasible.  Ms.  Dyer did
   the same while employed by SAIC -- she used the room in San Diego
   much the way a  traveler would use a hotel room  and stayed there
   only as her schedule required  -- otherwise she stayed and worked
   in  Yucaipa.   Under these  circumstances,  should claimant  move
   closer to San  Diego, the  reimbursement of  her moving  expenses
   would  be  proper  as  incident  to the  acceptance  of  her  new
   appointment. 
 
                                      _________________________________
                                      CATHERINE B. HYATT
                                      Board Judge