Board of Contract Appeals General Services Administration Washington, D.C. 20405 July 6, 1998 GSBCA 14566-RELO In the Matter of LARRY E. OLINGER Larry E. Olinger, San Diego, CA, Claimant. Ella S. Pozzuto, Civilian Personnel Officer, Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, appearing for Department of the Army. DANIELS, Board Judge (Chairman). Generally, when an agency transfers an employee in the interest of the Government from one station to another for permanent duty, it shall, in accordance with regulation, reimburse the employee for the expenses incurred in purchasing a home at the new station. 5 U.S.C. 5724a(a)(4)(A) (1994).[foot #] 1 A claim filed by Larry E. Olinger, a civilian employee of the Department of Defense, raises the issue of how soon after a transfer the employee must buy the home in order to qualify for reimbursement of these expenses. Regulation provides that the agency's obligation extends only to those purchases for which settlement occurs not later than two years after the date that the employee reports for duty at the new station. 41 CFR 302-6.1(e)(1) (1995); JTR C14000-B.[foot #] 2 The two-year period may be ----------- FOOTNOTE BEGINS --------- [foot #] 1 5 U.S.C. 5724a was amended by the Federal Employee Travel Reform Act of 1996, Pub. L. No. 104-201, 1713, 110 Stat. 2752, 2754 (1996), and the cited provision now appears at 5 U.S.C. 5724a(d). We cite the older version of the law because it was in effect at the time relevant to this case. [foot #] 2 The first citation is to the Federal Travel Regulation (FTR), which is issued by the Administrator of General Services and applies to all federal civilian employees. 41 CFR 302-1.1, -1.2. The second citation is to the Joint Travel (continued...) ----------- FOOTNOTE ENDS ----------- extended in individual cases for as much as an additional year. 41 CFR 302-6.1(e)(2)(i); JTR C14000-B. "Approval of this additional period of time shall be based on a determination that extenuating circumstances, acceptable to the agency concerned, have prevented the employee from completing the . . . purchase . . . in the initial time frame and that the [transaction is] reasonably related to the transfer of official station." 41 CFR 302-6.1(e)(2)(iii); see also JTR C14000-B. Mr. Olinger contests his agency's determination not to approve an extension of the time within which he might seek reimbursement of the expenses he incurred in purchasing a home at the station to which his agency transferred him. Background The claimant was relocated in September 1995 from San Francisco, California, to San Diego, California, consequent to the deactivation of the command at which he was employed. He considered declining the offer of a position in San Diego, since he and his wife wished to remain in San Francisco. At the time, however, Mrs. Olinger had a disability which impaired her ability to work, and the couple did not know whether she could continue to earn an income. So as to ensure that at least one of them had a steady job, Mr. Olinger accepted the position in San Diego. He did not purchase a home there immediately, however, because he harbored hopes that his wife would regain her physical capabilities to the point of being able to work consistently, and that he would therefore have the financial security to be able to leave his job, move back to San Francisco, and search for new employment there. Unfortunately, in October 1996, Mrs. Olinger had to retire due to her disability. The couple did not learn of the extent of her benefits until January 1997. According to the claimant, he and his wife did not believe that making any long-term financial commitments was prudent until all matters relating to Mrs. Olinger's employment status and benefits had been resolved. They therefore did not begin to look for a home in the San Diego area until the spring of 1997. The Olingers agreed in August 1997 to purchase a home in San Diego. Settlement on this home occurred in October 1997 -- two years and a month after Mr. Olinger had begun work at his new station. ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) Regulations (JTR), which are issued by the Department of Defense's Per Diem, Travel and Transportation Allowance Committee and implement and supplement the FTR with application to civilian employees of that department. JTR Foreword, Purpose & Authority, C1000. ----------- FOOTNOTE ENDS ----------- In early September 1997, less than two years after the assignment began, Mr. Olinger had asked the agency to extend the time within which he would be eligible for reimbursement of expenses incurred in buying the house. The agency denied the request. The official who made the initial denial commented, "I do not see the relationship between his wife's situation & the purchase of the home." Mr. Olinger appealed this decision to a higher-level official, from whom he received a more thoughtful response. This official understood that she was required by regulation to determine whether "extenuating circumstances, acceptable to the agency concerned, have prevented the employee from completing the . . . purchase . . . in the initial time frame and that the [transaction is] reasonably related to the transfer of official station." The official reviewed decisions of the Comptroller General, who formerly settled claims against the Government by its employees relating to their relocation from one permanent duty station to another. She conceded that in comparing Mr. Olinger's situation to those involved in the various decisions, she could have considered this situation to be "extenuating circumstances acceptable to the agency." Nevertheless, she concluded that because even after questions regarding Mrs. Olinger's ability to earn a living had been resolved, the couple had had several months to complete a home purchase, the Olingers' situation was not sufficiently compelling to meet the standard. Discussion Regulation vests discretion in the agency to make certain determinations as to each request for an extension of the two- year period in which settlement must occur in order for the transferred employee to be reimbursed for expenses incurred in the purchase of a home at the new duty station. First, the agency must decide whether extenuating circumstances prevented the employee from completing the purchase within two years of the date on which he reported for duty at the station. Second, if the agency finds extenuating circumstances, it must decide whether they are acceptable. Third, the agency must decide whether the transaction is reasonably related to the transfer to the new station. All of these determinations are subjective, and because the law grants broad discretion to the agency, we will not disturb any of them unless we find that a determination is arbitrary, capricious, or clearly erroneous. Clifford L. Leeson, GSBCA 14354-RELO (Apr. 7, 1998); cf. Rifat A. Ajjuri, GSBCA 14506-RELO (May 27, 1998); Daniel A. Rishe, GSBCA 14444-RELO, 98-1 BCA 29,677; William T. Stowers, GSBCA 14099-RELO, 97-2 BCA 29,096 (similar rule as to agency determinations regarding extensions of period of eligibility for temporary quarters subsistence expenses). Although we might not have made the same decisions the agency made regarding Mr. Olinger's request, we cannot find that the agency's choices were arbitrary, capricious, or clearly erroneous. Virtually all transferred employees encounter some sort of difficulties in finding new residences, and many of these problems lengthen the time required for this task. In allowing two years between the time the employee reports at his new station and the time of settlement, the regulations take into consideration the normal range of difficulties. Although the uncertainties posed by Mrs. Olinger's employment capabilities are surely unusual, we note that these uncertainties were resolved nearly a year before the conclusion of the period of Mr. Olinger's eligibility for reimbursement for the expenses of buying a home. The agency's conclusion that notwithstanding this initial problem, the Olingers should have been able to find and settle on a house within eleven months, was rational. Decision We consequently deny the claim. _________________________ STEPHEN M. DANIELS Board Judge