Board of Contract Appeals General Services Administration Washington, D.C. 20405 April 7, 1998 GSBCA 14176-RELO In the Matter of ELMER L. GRAFFORD Elmer L. Grafford, Summerville, SC, Claimant. David E. Kirkpatrick, Counsel, Aircraft Division, Naval Air Warfare Center, Indianapolis, Indiana, appearing for Department of the Navy. DANIELS, Board Judge (Chairman). When the Department of the Navy closed a base in Panama, it transferred one of the civilian employees stationed there, Elmer L. Grafford, to a facility in Indianapolis, Indiana, to which Mr. Grafford had return rights. Mr. Grafford knew that upon his arrival in Indianapolis, due to the contracting-out of various activities, he would be placed in reduction-in-force status. Rather than subject his family to further forced moves, he decided to locate the family in Charleston, South Carolina, and to remain with the Indianapolis facility only for the few months before he was eligible for retirement. He would then retire and join his family in Charleston. He informed the Navy of these plans before he left Panama. In conjunction with the relocation from Panama to Indianapolis, Mr. Grafford asked the Navy to reimburse him for expenses he incurred with regard to purchase of a home, temporary quarters subsistence, and round-trip transportation between Indianapolis and Charleston. He also asked the Navy to reimburse him for expenses he incurred in selling the home in which he lived in Indianapolis before he was sent to Panama. The agency denied the claim. The employee has asked us to review this decision. Real estate transaction expenses In 1993, four months after having been sent to Panama, Mr. Grafford sold the home in which he had been living in Indianapolis. He incurred settlement charges in making the sale. The Navy denied his claim for reimbursement of these costs on the ground that he did not request reimbursement "within the two year period allowed by applicable regulations," which the agency identifies as paragraph C14000-B of the Joint Travel Regulations (JTR). The agency's reading of the law is in error. When an agency transfers an employee in the interest of the Government, it must pay the expenses incurred by the employee in selling his residence at his old duty station and purchasing a home at his new station, providing that certain conditions are met. 5 U.S.C. 5724a(a)(4)(A) (Supp. III 1991);[foot #] 1 41 CFR 302-6.1 (1993); JTR C14000-A. The JTR contain a two-year limitation regarding real estate transaction expenses, but that limitation does not impair Mr. Grafford's ability to make this claim. The rule is that "the settlement dates for the sale and purchase or lease termination transactions for which reimbursement is requested must not be later than 2 years after the date that the employee reported for duty at the new [permanent duty station]." JTR C14000-B.[foot #] 2 The settlement on Mr. Grafford's old residence in Indianapolis occurred much less than two years after he reported to Panama. Thus, the JTR provision relied on by the Navy does not preclude payment of this claim. Congress has provided that, in general, a claim against the Government must be received within six years after the claim accrues. 31 U.S.C.A. 3702 (West Supp. 1997). This restriction is no bar to Mr. Grafford's request for reimbursement, either; he filed his claim in June 1997, less than four years after it accrued. Although the claim for reimbursement of expenses incurred in the 1993 sale of Mr. Grafford's residence in Indianapolis is not ----------- FOOTNOTE BEGINS --------- [foot #] 1 If both the old and new official stations are not "located within the United States, its territories or possessions, the Commonwealth of Puerto Rico, or the areas and installations in the Republic of Panama made available to the United States pursuant to the Panama Canal Treaty of 1977 and related agreements," special rules apply. 5 U.S.C. 5724a(a)(4)(A); see John W. McCollum, GSBCA 13671-RELO, 97-1 ___ _________________ BCA 28,863; Harry T. Teraoka, GSBCA 13641-RELO, 97-1 BCA __________________ 28,796. Since both of Mr. Grafford's duty stations, at the time of the 1993 move, were located within the named geographic areas, we need not concern ourselves with the special rules. [foot #] 2 The two-year period may, in certain circumstances, be extended by as much as one additional year. JTR C14000-B; see Clifford L. Leeson, GSBCA 14354-RELO (Apr. 7, ___ __________________ 1998). ----------- FOOTNOTE ENDS ----------- associated with the Navy's transfer of the employee from Panama to Indianapolis, the claim has been presented in a timely manner, and it is for the sort of expenses which are generally reimbursable. We direct the Navy to examine the components of the claim in light of the regulatory provisions which govern allowability of real estate transaction expenses, and to reimburse Mr. Grafford appropriately. See JTR C14002; 41 CFR pt. 302-6 (1993). After returning to the United States from Panama, Mr. Grafford purchased a home in Summerville, South Carolina, outside Charleston. He incurred settlement charges in making this purchase. The Navy authorized reimbursement of real estate expenses in conjunction with Mr. Grafford's transfer to Indianapolis. The claimant maintains that because Indianapolis was really his duty station only temporarily (until his retirement) and Charleston was his new permanent home, the Navy should reimburse him for the settlement charges on the house in Charleston. This interpretation of the facts and law is not correct. A transferred employee's costs of purchasing a new home are reimbursable only if the new home is at the new official station. 5 U.S.C. 5724a(a)(4)(A) (1994); 41 CFR 302-6.1 (1996); JTR C14000-A. An "official station" is "[t]he building or other place where the officer or employee regularly reports for duty" and, with respect to entitlement to relocation benefits, "the residence or other quarters from which the employee regularly commutes to and from work." 41 CFR 302-1.4(k). Indianapolis was Mr. Grafford's official station upon his transfer from Panama, and the employee does not contend that he regularly commuted to his job there from Charleston. Because the home Mr. Grafford purchased upon reassignment to Indianapolis was not at his official station, the Navy acted properly in denying the request for reimbursement of settlement charges Mr. Grafford incurred in buying that home. Temporary quarters subsistence expenses (TQSE) Another benefit available to transferred employees is TQSE, for a period of sixty days while occupying temporary quarters. 5 U.S.C. 5724a(a)(3); 41 CFR pt. 302-5 (1996); JTR ch. 13. The Navy authorized such reimbursement in the orders sending Mr. Grafford to Indianapolis. Mr. Grafford claims TQSE for June 19, 1996 (lodging location: Panama); June 20 through August 2 (lodging location: Charleston); and August 10 through 15 (lodging location: Indianapolis). He explains that after June 19, the family lived in a motel in Charleston and ate in restaurants while they were looking for a permanent residence in the area. During most of this time (apparently until August 10), Mr. Grafford was in Charleston as well, on leave. The Navy paid TQSE only for the single day in Panama and the days when Mr. Grafton was in Indianapolis. The agency refused to pay for the days when he was in Charleston. It based this decision on two factors: first, whatever he did in Charleston was unrelated to his transfer to Indianapolis; and second, he was on leave while in South Carolina. The JTR establishes conditions of eligibility for receipt of TQSE which include the place where a transferred employee and/or his family may be housed: As a general rule the location of the temporary quarters must be within reasonable proximity of the old and/or new official station. Payment of subsistence expenses for occupancy of temporary quarters in other locations will not be allowed unless justified by circumstances unique to the individual employee or the employee's dependents that are reasonably related and incident to the transfer. Payment for such expenses must be authorized or approved by the head of the [Department of Defense] component concerned or his/her designee, provided the designee is at a level high enough to ensure adequate review of the circumstances involved and to determine that payment of the temporary quarters allowance is justified. JTR C13001-A.2 (Mar. 1, 1996); see also 41 CFR 302-5.2(d).[foot #] 3 Under this regulation, the fact that the Grafford family was occupying temporary quarters at a location other than Panama or Indianapolis does not disqualify them from receiving TQSE. It does require, however, that a determination be made that the family's living in Charleston was justified by unique circumstances that were reasonably related to the transfer. While we cannot make such a determination -- only a high level Department of Defense official may make it, according to the JTR -- we do observe that the timing of the transfer, the need for the employee to move again in the near future if he was to remain with the Government, and the employee's consequent decision to retire to a place of his own choosing constitute a unique set of circumstances, and there is no apparent reason other than this conjunction of factors for the family's living away from the old and new duty stations. Thus, we find that a determination to pay TQSE by the appropriate official would be permissible, notwithstanding the fact that the family was living away from the employee's old and new duty stations. We caution, however, that if the Navy decides to pay the Graffords' TQSE for the time that the family was in Charleston, it should ensure, consistent with statute and regulation, that it make such payments only for the time when the family was actually occupying temporary quarters. We note that Mr. Grafford settled ----------- FOOTNOTE BEGINS --------- [foot #] 3 Pursuant to revisions of these regulations, similar provisions are now found at JTR C13110-A.2.f (Mar. 1, 1998) and 41 CFR 302-5.9 (1997). ----------- FOOTNOTE ENDS ----------- on the house in Summerville on July 15, 1996. Unless Mr. Grafford can demonstrate that his family actually occupied temporary quarters even after he had purchased a permanent residence, TQSE should not be paid for any date after July 15. Under the JTR, whenever any member of a family moves into permanent quarters, the period of eligibility for TQSE ends. JTR C13005-A; see also 41 CFR 302-5.2(f) (provisions now found at JTR C13110-B.3 and 41 CFR 302-5.108).[foot #] 4 The Navy has also questioned whether it should pay TQSE for any days while Mr. Grafford was on leave. The record is not clear as to whether the employee was on annual leave or sick leave during the period in question. If he was on vacation, the Federal Travel Regulation (FTR)[foot #] 5 is clear that TQSE may not be paid for this period. 41 CFR 302-5.2(d) (provision now found at 41 CFR 302-5.302); Robert E. Jacob, GSBCA 13792-RELO, 97-2 BCA 29,218. The FTR does not state explicitly whether TQSE may be paid for days while an employee is on annual leave for any purpose other than vacation, or on sick leave. The regulation says, on this subject, only that the period of consecutive days of eligibility for TQSE may be interrupted for "non-official necessary interruptions such as hospitalization [or] approved sick leave." JTR C13005-A.1; 41 CFR 302-5.2(a) (provisions now found at JTR C13110-B.2.a.3 and 41 CFR 302-5.106(c)). The General Accounting Office (GAO), which formerly settled claims against the Government involving relocation expenses incurred by Federal civilian employees, at one time held that employees who were authorized to receive TQSE could be reimbursed for those expenses while on any kind of leave. GAO believed that since the employees were continuing to occupy temporary quarters, reimbursement was appropriate. Jon C. Wade, 61 Comp. Gen. 46 (1981). GAO changed its position when the FTR was amended to prohibit payment of TQSE to employees who were on vacation. ----------- FOOTNOTE BEGINS --------- [foot #] 4 There is an exception to this rule: if a family member who is a dependent moves into a permanent residence in a different locality from the one in which the family is temporarily quartered, the rest of the family may continue to receive TQSE. The most common application of this exception is to college students. Lee R. Vickson, GSBCA 13890-RELO, 97-1 BCA _______________ 28,959. The exception is not relevant to this case. [foot #] 5 The FTR, which is issued by the Administrator of General Services, applies to all civilian employees of the Government. 5 U.S.C.A. 5738 (West Supp. 1997) (superseding 5 U.S.C. subch. II (1994); Exec. Order No. 11,609 (July 22, 1971)). The JTR supplements the FTR with application to civilian employees of the Department of Defense. JTR C1000. Since the JTR does not speak to this particular matter, the provisions of the FTR govern. See Lorrie L. Wood, GSBCA 13705-TRAV, 97-1 BCA ___ _______________ 28,707. ----------- FOOTNOTE ENDS ----------- Larry C. Larson, B-230390 (Sept. 13, 1989). The Administrator of General Services' determination to reverse (through amendment to regulation) GAO's earlier holding as to vacation time, but not as to annual leave for other purposes or as to sick leave, persuades us that the earlier rule should remain applicable to periods when these other forms of leave are taken. Such a result is also consistent with an FTR rule regarding employees on travel status: an employee who becomes incapacitated while on temporary duty, and "takes leave of any kind," shall continue to receive a per diem allowance. 41 CFR 301-12.5(a). Consequently, for the days that Mr. Grafford was not on vacation and otherwise eligible to receive TQSE, he should receive reimbursement for TQSE he incurred. Round-Trip from Indianapolis to Charleston Mr. Grafford's travel orders provide that the Government will pay for three separate costs relating to the vehicle he owned while living in Panama: (1) shipment of the vehicle from Panama to a United States port of entry; (2) the employee's travel from Indianapolis to that port of entry to pick up the car; and (3) a specified amount per mile involved in the employee's driving the car to Indianapolis. The orders also provide that the Government will pay for expenses incurred in the travel of Mr. Grafford and his family from Panama to Indianapolis. Evidently, both the car and the family went, at Government expense, from Panama to Charleston. Later, Mr. Grafford traveled from Charleston to Indianapolis in an automobile he owned (which may or may not have been the one that had been shipped from Panama), and the Navy reimbursed him, at a per-mile rate, for the expenses he incurred in making this trip. Later still, he drove from Indianapolis back to Charleston, and then he returned, again by car, to Indianapolis. Mr. Grafford now claims that pursuant to the portions of his orders dealing with second and third elements of vehicle costs listed in the previous paragraph, the Navy must pay on a per-mile basis for the cost of these three automobile trips. Plainly, the orders contemplated a very different sequence of events from the one which actually occurred. The orders envisioned that the employee would report immediately to Indianapolis, where he would remain on duty, except for a trip to Charleston to pick up his car and bring it back to Indianapolis. Instead, upon returning to the United States, Mr. Grafford stayed in Charleston for some weeks and then drove to Indianapolis. A trip to Charleston for the special purpose of gaining possession of an automobile to drive in Indianapolis thus became unnecessary. Mr. Grafford's later travel from Indianapolis to Charleston was not required by his relocation from Panama to Indianapolis. The travel was for his own benefit, so we see no reason why the Government should pay for it. _________________________ STEPHEN M. DANIELS Board Judge