Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________ February 26, 1998 ___________________ GSBCA 14089-RELO In the Matter of DAVID M. WHETSELL David M. Whetsell, Aiken, SC, Claimant. Mario P. Fiori, Manager, Savannah River Operations Office, Aiken, SC, appearing for Department of Energy. WILLIAMS, Board Judge. This case comes to the Board in an unusual posture. Claimant, David M. Whetsell, attempts to seek reconsideration of a relocation decision by the Comptroller General which resulted from an agency's request for an opinion.[foot #] 1 We treat the case as a claim filed directly with the Board. The original case with the General Accounting Office (GAO) was a request by the agency for an advance decision, pursuant to 31 U.S.C. 3529, rather than a claim itself. The instant claim was filed with the Board within the six-year statute of limitations. 31 U.S.C. 3702(b) (1994). Claimant seeks reimbursement of the real estate expenses incurred in purchasing a new residence in connection with his permanent change of station (PCS) and expenses for transporting household goods. Real estate expenses are not recoverable because claimant's new residence in Folly Beach, South Carolina, is 113 miles from claimant's new official duty station in Aiken, South Carolina -- farther away from his new duty station than his former residence. In addition, claimant does not regularly commute from Folly Beach to his new post of duty; claimant lives in an apartment in Aiken from which he commutes to his job during the week and travels to Folly Beach on holidays and weekends. On the second issue, we deny household goods transportation expenses because claimant did not move his household goods until two and one half years after his reporting date at the new duty station and regulation does not permit an employee to delay transportation of household goods beyond two years, where there is no need to delay the actual residence purchase or sale transaction. ----------- FOOTNOTE BEGINS --------- [foot #] 1 This "request for reconsideration" was originally filed with GAO, but GAO advised claimant that the jurisdiction to consider his request had been transferred to this Board effective June 30, 1996. Claimant refiled his claim with the Board on January 30, 1997. ----------- FOOTNOTE ENDS ----------- Background On December 13, 1989, claimant was issued an authorization for change of official station approving his permanent change of station from Greenville, South Carolina, to the Aiken/Augusta area. The travel was authorized to commence on December 8, 1989. Expenses for the movement of household goods and for a dependent moving with the employee were authorized. As of the time of his transfer, claimant and his wife were residing in Greenville.[foot #] 2 Greenville is 206 miles from his old duty station and eighty-six miles from his new duty station. Claimant reported at the new duty station on December 9, 1989. He and his wife attempted to relocate within commuting distance of his new duty station. Claimant explained: My wife and I did in fact attempt to locate within commuting distance of Savannah River, not knowing that we would not be able to live in the area. My wife has been diagnosed with Multiple Chemical Sensitivities (MCS), which is a recognized handicap condition by the Americans with Disabilities Act and the Social Security Administration. We tried Augusta, GA., Aiken, North Augusta, Barnwell, Jackson, the entire surrounding area, Greenwood, and Abbeville. We found through additional research and conference with the appropriate medical professionals that the coastal environment was the preferred environment. We also found during this time that my wife could not return on a permanent basis to Greenville due to serious health problems and dramatic weight loss that were due to the environmental conditions in Greenville. Our choices were from Beaufort, SC to Long Beach, NC, with Folly Beach being among the closest locations, having the applicable medical resources (Center for Environmental Medicine), and in the best prevailing wind patterns to accommodate proximal industry. Once again, if we could not live at Folly Beach (or other equally remote location), I could not be employed at Savannah River. . . . [T]he location chosen is directly for the express purpose of allowing my employment at Savannah River. Claimant also submitted a letter from a physician explaining his wife's medical condition: The above named patient is under my care for the management of multiple allergies, chemical sensitivities and autoimmune disease. Environmental illness necessitates that Ms. Whetsell live in a place that minimizes her exposure to chemicals because even low levels cause painful and adverse symptoms. Ms. Whetsell was living in Greenville, SC at the time her husband was employed in Aiken. She attempted living in the Aiken area in conjunction with her husband's employment there but her exposure and her illness made this area unacceptable. Ms. Whetsell discovered during this time that she could not return to Greenville on a permanent basis due to declining health that was determined to be due to sensitivities to environmental conditions in Greenville. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Claimant's legal residence was in Charleston, South Carolina, but he relocated to Greenville due to damage to his residence caused by Hurricane Hugo. ----------- FOOTNOTE ENDS ----------- Through considerable research, Folly Beach was determined to be the only area with the appropriate environment and within reasonable distance to allow her husband's continued employment in the Aiken area. On November 15, 1991, claimant went to settlement on a residence in Folly Beach, South Carolina. On December 4, 1991, claimant requested an extension of the time limit for his residence and transportation transactions. Claimant stated: Due to health considerations caused by extreme allergic conditions within my family, we are unable to complete relocation within the specified two-year time limit. Complex allergies to chemical and flora have necessitated extensive research into appropriate geography and building materials. Additionally, much time has been expended travelling to neighboring states for expert medical attention. Our path forward is now established, but additional time will be needed to plan and complete our home and move our possessions. We therefore are requesting an extension of one year as allowed by regulation for completion of residence and transportation transactions. The one-year extension was granted. Claimant did not move his household goods until May 23-May 26, 1992, two and one half years after the reporting date, because he was renovating the condominium after purchasing it in order to eliminate "chemical toxicants injurious to [his] wife's health." Claimant explained: "This included extensive replacement of building materials with chemically safer materials and adding special ventilation and filtration systems before my wife could physically move into the condominium." Discussion Real Estate Expenses The authority to reimburse an employee for real estate expenses incurred in the "purchase of a home at the new official station," incident to a change of official station, is contained in 5 U.S.C. 5724a(a)(4) (1988). The implementing regulations in the Federal Travel Regulation (FTR), 41 CFR Ch. 302, provide that the new residence must be located at the employee's new "official station." The FTR provides that, with respect to an employee's entitlement to reimbursement of residence expenses, "official station or post of duty means the residence or other quarters from which the employee regularly commutes to and from work." 41 CFR 302-1.4(k) (1994). With respect to the purchase of a residence, both the Board and GAO have consistently held that the requirement that the employee regularly commute from the residence in question contemplates commuting on a daily basis, not just on weekends or occasionally during the month. Malcolm L. Jowers, GSBCA 13727-RELO, 97-1 BCA 28,800; Jesse Jackson, Jr., B-251559 (Mar. 31, 1993); Johnny W. Reising, B-238086 (June 8, 1990); Donald R. Stacy, 67 Comp. Gen. 395 (1988).[foot #] 3 Where an employee maintains, and ----------- FOOTNOTE BEGINS --------- [foot #] 3 Cf. Will C. LaVeille, GSBCA 14070-RELO, 97-2 ___ _________________ BCA 29,139. In LaVeille, the Board allowed reimbursement of ________ real estate expenses where the new residence was 122 miles from claimant's new duty station, but claimant proved that he commuted this distance on a daily basis. ----------- FOOTNOTE ENDS ----------- commutes from, living accommodations in the near proximity of his duty station on a daily basis and only travels on weekends and holidays to a residence where his family lives, the weekend commute does not satisfy the FTR's requirement of regular commuting. Jowers; Donald R. Stacy; William T. Cook, B-217518 (July 23, 1985). Claimant contends that he is entitled to recover real estate expenses based upon GAO's decision in Mark S. Alcorn, B-239108 (Mar. 15, 1991). In Alcorn GAO recognized an exception to the general rule and allowed reimbursement of real estate expenses when the new home was not within commuting distance of the new duty station -- some 172 miles away -- and claimant only commuted between the new home and duty station one or two times a month and on weekends. GAO reasoned: [T]here are situations in which an employee's relocation should be viewed as incident to a change in duty station even though the new residence is not within commuting distance of the new duty station. The regulation explicitly provides for one such situation--where the official station is in a remote area and adequate family housing is not available within daily commuting distance. We believe that Mr. Alcorn's situation, as described by him, is another. He asserts that his choice of Rapid City, South Dakota, rather than Pierre, where his new duty station was located, as his place of residence was dictated by medical necessity involving his wife. In his view, he really had no choice but to relocate to Rapid City following the change in duty station. If the agency concludes that the circumstances of Mr. Alcorn's case are as he describes them, reimbursement of his real estate expenses would be consistent with the purpose of the statute and his claim should be allowed. Alcorn is inapplicable here.[foot #] 4 In Alcorn, the purchase of a new residence in South Dakota was clearly incident to Mr. Alcorn's transfer because he was transferred from Arizona. Here, claimant's move was not incident to his transfer but was dictated solely by his wife's medical condition, since he moved within the state of South Carolina to a residence farther away from his new duty station than his old residence. Had claimant remained in his original residence, he would have been closer to the new duty station. The facts of record thus cannot support a conclusion that claimant's move to Folly Beach was incident to his transfer. Household Goods Claimant transported his household goods some two and one half years after he reported for duty at Savannah River. However, the applicable regulation, FTR 302-1.6(c), requires that shipment of household goods occur within two years from the effective date of the employee's transfer subject to certain exceptions. This regulation provides: ----------- FOOTNOTE BEGINS --------- [foot #] 4 We do not now address whether this Board would follow Alcorn and allow a "medical necessity" exception to ______ the requirement that an employee must regularly commute from the new residence to the new duty station in order to be reimbursed for residence purchase expenses. ----------- FOOTNOTE ENDS ----------- 302-1.6 Time limits for beginning travel and transportation. All travel, including that for the immediate family, and transportation, including that for household goods allowed under this chapter, shall be accomplished as soon as possible. The maximum time for beginning allowable travel and transportation shall not exceed 2 years from the effective date of the employee's transfer or appointment, except that: (a) The 2-year period is exclusive of the time spent on furlough for an employee who begins active military service before the expiration of such period and who is furloughed for the duration of his/her assignment to the post of duty for which transportation and travel expenses are allowed; (b) The 2-year period does not include any time during which travel and transportation is not feasible due to shipping restrictions for an employee who is transferred or appointed to or from a post of duty outside the continental United States; and (c) The 2-year period shall be extended for an additional period of time not to exceed 1 year when the 2-year time limitation for completion of residence transactions is extended under 302-6.1(c). As GAO noted: "[T]here is no independent right under the regulation whereby an employee may delay transportation, including shipment of household goods, beyond two years where the need to extend the time for residence purchase and sale transactions is not involved." David M. Whetsell, B-257855 (Aug. 22, 1995) at 5. We agree with GAO. The only exception arguably applicable here, subparagraph (c), permits an extension when the time for completing the residence transaction itself -- i.e., settlement on the sale or purchase of the residence -- is extended. Thus, although the agency had, in December 1991, approved an extension of time for completing the residence and transportation transactions, that approval was erroneous because the residence transaction had already been completed. As GAO recognized in Robert H. Myer, B-234451 (Aug. 26, 1994), it is the intention of this provision of the FTR to have household goods transportation "accomplished as soon as possible." Here, claimant went to closing on the new home on November 15, 1991, but did not transport his household goods until the following May. Although we are sympathetic to claimant's need to renovate the condominium for medical reasons, there is no legal basis on which we can allow reimbursement of the expenses for transporting household goods. Decision The claim is denied. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge