Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________________ April 21, 1998 _________________________ GSBCA 14509-RELO In the Matter of MICHAEL J. HALPIN Michael J. Halpin, Orange Beach, AL, Claimant. Stephen Coakley, Director of Resource Management, United States Army Corps of Engineers, Department of the Army, Washington, DC, appearing for Department of the Army. DeGRAFF, Board Judge. Background In 1997, Michael J. Halpin was an employee of the United States Army Corps of Engineers (Corps) in Alabama. On June 12, 1997, the Corps notified Mr. Halpin that he would be the subject of a reduction in force. The Corps offered Mr. Halpin a position in Florida beginning on October 19, 1997, and told Mr. Halpin that if he did not accept the offer, the Corps would terminate his employment effective October 18, 1997. Mr. Halpin accepted the offer. Earlier in 1997, Mr. Halpin and his wife began the process of getting a divorce, and on January 14, 1997, they listed their house for sale with a real estate agent. During January, February, and March, Mr. and Mrs. Halpin considered whether to sell their house and discussed options for dividing the sale proceeds. Mr. Halpin says that sometime before he received the reduction in force notice, he "pulled" the listing contract for his house. In late June 1997, Mr. Halpin went to Florida to visit the area near the position that he had accepted. Mr. Halpin says that when he returned to Alabama on June 29, he told his realtor to go ahead and sell the house. Mr. Halpin submitted to us a copy of the listing agreement that he signed in January 1997, which was revised to make June 29, 1997, the effective date of the listing. On July 2, 1997, Mr. Halpin and his wife accepted a purchase offer for the house. On July 8, 1997, the Corps informed Mr. Halpin that he might want to put "on hold" any relocation action because it believed that relocation expenses were not reimbursable if they were incurred before travel orders were issued. The sale of Mr. Halpin s home closed on August 11, 1997. Mr. Halpin became concerned that he would not be able to perform all of the duties required of him in the Florida position, which included regularly walking and climbing through rough terrain and frequent bending and stooping. Mr. Halpin says that in September 1997, he asked the Corps for a "clarification" of the physical requirements of the position in Florida. On October 1, 1997, Mr. Halpin asked his physician to write a letter recommending that he "not perform the physical requirements" of the Florida job. Mr. Halpin s physician wrote a letter that same day stating that Mr. Halpin could occasionally perform the physical duties of the Florida position, but could not frequently perform those duties. The next day, the Corps arranged for Mr. Halpin to be examined by a Corps physician to determine whether he was physically qualified to perform the duties of the position in Florida. On October 9, 1997, the Corps signed Mr. Halpin s travel orders, which said that his reporting date at his new permanent duty station was October 19, 1997. The orders authorized Mr. Halpin to be reimbursed for real estate expenses. After examining Mr. Halpin, the Corps physician concluded on October 15, 1997, that Mr. Halpin could not perform the duties required by the Florida position. The physician suggested that Mr. Halpin be examined by a neurologist, and that examination occurred on November 7, 1997. The neurologist concluded that Mr. Halpin would pose a risk if he were to perform certain physical activities. In mid-November 1997, the Corps extended Mr. Halpin's reduction in force notice period from October 18 to December 12, 1997, so that the examining physicians could confer about his ability to perform the duties of the position in Florida. In late November 1997, the Corps physician concluded that Mr. Halpin could not perform the duties of the Florida position. On December 12, 1997, the Corps notified Mr. Halpin that the physical examinations revealed that he was unable to perform the physical portion of the position in Florida. The Corps also told Mr. Halpin that it could not make him any employment offer, and that he would be separated from service due to the reduction in force. On December 18, 1997, the Corps revoked Mr. Halpin s travel orders. Also on December 18, 1997, Mr. Halpin submitted a claim to the Corps for reimbursement of his home sale expenses. On January 16, 1998, the Corps again informed Mr. Halpin that he did not meet the qualifications for the position in Florida. The Corps applied its reduction in force procedures again in order to determine whether it could offer him a position and found that there was no position available. As a result, the Corps told Mr. Halpin that he would be separated from service in 120 days. The Corps decided to deny Mr. Halpin s claim because he never transferred to Florida. Although Mr. Halpin did not transfer because the Corps canceled his reassignment, the Corps contends that Mr. Halpin engineered the cancellation. The Corps says that Mr. Halpin went to Florida, decided that he did not want to live there, and then "decided suddenly" that he had a disability, which he used in order to disqualify himself from performing the duties of the position in Florida. In addition, the Corps does not believe that Mr. Halpin sold his house as a result of his intent to make a permanent change of station move to Florida. Rather, the Corps contends that Mr. Halpin sold his house as a result of his divorce proceedings. Mr. Halpin says that he never decided that he did not want to move to Florida. Mr. Halpin says that he sold the house due to his reassignment to Florida and not due to his divorce. He also says that, before the reduction in force, he had no intention of selling the house. Mr. Halpin says that he had "rearranged" the house payments so that he and his son could remain in the house, and that he and his wife were trying to preserve and not to sell the house. Mr. Halpin asks us to review the Corps decision to deny his claim for home sale expenses. Discussion The statute that governs Mr. Halpin s claim provides as follows: An agency shall pay to or on behalf of an employee who transfers in the interest of the Government, expenses of the sale of the residence . . . of the employee at the old official station . . . that are required to be paid by the employee, when the old and new official stations are located within the United States. 5 U.S.C. 5724a(d)(1) (West Supp. 1998). The General Accounting Office (GAO), which considered relocation expense reimbursement claims until 1996, resolved many claims concerning canceled transfers. The GAO developed the following general rule: When an agency cancels a transfer due to circumstances beyond an employee's control, it should reimburse the employee for expenses that it would have reimbursed had the transfer been completed, provided the employee incurred the expenses before the agency canceled the transfer, in good faith, and in anticipation of the transfer. Orville H. Myers, 57 Comp. Gen. 447 (1978); Dwight L. Crumpacker, B-187405 (Mar. 22, 1977). We examine Mr. Halpin's claim in light of this rule. Circumstances beyond an employee's control The Corps asserts that circumstances within Mr. Halpin's control resulted in the cancellation of his transfer. The Corps says that Mr. Halpin engineered the cancellation of his transfer by suddenly discovering a disability that would disqualify him from performing the duties of the Florida position. GAO decided that circumstances beyond an employee's control included an agency's decision not to relocate an office, not to move an employee as previously planned, and not to carry out a reduction in force. James R. Anderson, B-246646 (Apr. 30, 1992); Dwight L. Crumpacker, B-187405 (Mar. 22, 1977); William G. Dodds, B-177898 (Apr. 16, 1973); James R. Hartley, B-177439 (Feb. 1, 1973); H.M. Rosenberg, B-175300 (Apr. 20, 1972); R.P. Hogan, B- 174505 (Dec. 21, 1971); H.E. Kuhn, B-170259 (Sep. 15, 1970). Circumstances beyond an employee's control also included an agency's decision that an employee was not eligible for a position, B. Lee Charlton, B-189953 (Nov. 23, 1977), and that an employee could not be transferred either due to the employee's health or due to the health of someone in the employee's family. William E. Weir, B-189900 (Jan. 3, 1978); Ethalreda C. Fesmire, B-142286 (Apr. 8, 1960). If an employee asked for a transfer to be canceled for personal reasons, GAO decided that such circumstances were not beyond an employee's control. Richard J. Hughes, B-197816 (June 24, 1981); John F. Pattie, B-197609 (Oct. 20, 1980); Sandra A. Cossu, B-193969 (June 5, 1980); H.M. Christopherson, B-183563 (July 14, 1976); James G. Flanigan, B- 183801 (Mar. 24, 1976). The record does not show that Mr. Halpin asked the Corps to cancel his transfer for personal reasons. Rather, the record shows that the Corps decided to cancel the transfer due to Mr. Halpin's inability to perform the physical duties required by the position in Florida. Mr. Halpin's physician concluded that he could occasionally, but not frequently, perform those duties. When Mr. Halpin raised the issue of his ability to perform the physical requirements of the position in Florida, the Corps had two physicians examine Mr. Halpin. Both doctors concluded that Mr. Halpin had some physical limitations, and the Corps physician concluded that those limitations would prevent Mr. Halpin from performing the duties required by the Florida position. Based upon the conclusion of its physician, the Corps canceled Mr. Halpin's transfer because he could not perform the physical requirements of the Florida position. If, as the Corps seems to suggest, Mr. Halpin's disability was somehow within his control, we would have expected the physicians to discover this when they examined him and to provide that information to the Corps. We do not question the medical judgment of the physicians who examined Mr. Halpin. Mr. Halpin has established that the Corps canceled his transfer due to his inability to perform the physical duties required by the Florida position. The Corps has not established that Mr. Halpin's inability to perform the duties of the position was a matter within his control. We conclude that the Corps canceled Mr. Halpin's transfer for reasons beyond his control. Expenses that would have been reimbursed had the transfer been completed The Corps does not contend that, if Mr. Halpin had transferred to Florida, he would not have been reimbursed for his home sale expenses. The Corps correctly states that the amount that Mr. Halpin can recover depends upon the nature of the expenses and his interest in the property. Employee incurred the expenses before the agency canceled the transfer, in good faith, and in anticipation of the transfer Mr. Halpin incurred his home sale expenses in August 1997, before the Corps canceled the transfer in December 1997. The Corps does not challenge whether Mr. Halpin incurred those expenses in good faith. In July 1997, the Corps apparently believed that employees could not be reimbursed for home sale expenses if they incurred those expenses before the Corps issued travel orders. The Corps has not made this argument to us, so we address this point only briefly. GAO decided that an employee could incur expenses in anticipation of a transfer so long as the agency had communicated to the employee its clear intent to effect a transfer. Although travel orders are evidence of such an intent, GAO decided that other evidence could also establish a clear intent to transfer. Joseph L. White, 58 Comp. Gen. 208 (1979); Orville H. Myers, 57 Comp. Gen. 447 (1978); Dwight L. Crumpacker, B-187405 (Mar. 22, 1977). Consistent with the GAO decisions, the Joint Travel Regulations (JTR), which are applicable to Mr. Halpin as a civilian employee of the Department of Defense, provide that an employee can be reimbursed for real estate expenses incurred in anticipation of a transfer "if a clearly evident administrative intent to transfer the employee exists at the time the expenses are incurred." JTR C14000-D.1. The Corps asserts that Mr. Halpin incurred his home sale expenses due to his divorce and not due to his receipt of the reduction in force notice, i.e., not in anticipation of the transfer. The only fact that supports the Corps' position that Mr. Halpin sold the house as the result of the divorce is the fact that the house was first listed for sale in January 1997. Mr. Halpin explains that although he and his wife listed their house for sale in January 1997, they took the house off the market before he received the reduction in force notice. Mr. Halpin also says that he "rearranged" the house payments so that he and his son could remain in the house, and that he and his wife were trying to preserve and not to sell the house. Mr. Halpin says that they revised the listing agreement after he received the reduction in force notice, and he provided us with a copy of the listing agreement that shows the effective date of the agreement was revised to June 29, 1997. Mr. Halpin has established that he sold his house in anticipation of the transfer, and not due to his divorce proceedings. Decision The Corps should reimburse Mr. Halpin for his home sale expenses as allowed by the applicable regulations. ____________________________________ MARTHA H. DeGRAFF Board Judge