Board of Contract Appeals General Services Administration Washington, D.C. 20405 November 30, 1999 GSBCA 15144-RELO In the Matter of NANNETTE O. LOCKE Nannette O. Locke, Beaumont, TX, Claimant. Thomas J. Stewart, Director, Travel Management Division, Washington, DC, appearing for Department of Housing and Urban Development. DANIELS, Board Judge (Chairman). A claim by Nannette O. Locke, an employee of the Department of Housing and Urban Development (HUD), poses the question whether, in extenuating circumstances, the period of time within which a transferred employee is eligible for reimbursement of real estate transaction expenses may be enlarged. The question must be answered in the negative. Ms. Locke reported to HUD's Beaumont, Texas, Fair Housing Office on April 1, 1996. Two months later, the department's Office of Inspector General (OIG) began an investigation of Ms. Locke's office. The review lasted one year. The OIG then issued a report on its findings, and soon thereafter, the department began making numerous changes to the staffing of this office and others in Beaumont. In January 1999, HUD decided to close the Beaumont Fair Housing Office and transfer its functions to an office in Fort Worth. The department allowed personnel assigned to the Beaumont office to remain in that city. Ms. Locke accepted this invitation so that her son could complete his last two years of high school in Beaumont. Ms. Locke says that she "endured 2-1/2 years of being under- housed" while uncertainty enveloped the future of her office and her tenure in Beaumont. Twice, she says, she accepted transfers to other locations, but the relocations were aborted. Only when she knew that she would remain in Beaumont did she begin to look for permanent housing. On May 27, 1999 -- a bit more than three years after she first reported for duty in that city -- she purchased a house there. Unfortunately for Ms. Locke and other Government employees similarly situated, the law establishing time constraints on reimbursement of real estate transaction expenses is clear in frustrating their desires. The Federal Travel Regulation provides that generally, reimbursement of these expenses is available only if the settlement date of the sale or purchase of a residence occurs "not later than 2 years after the date that the employee reported for duty at the new official station." 41 CFR 302-6.1(e)(1) (1998). If an employee requests an extension of this period, the head of his agency (or a designee) may grant it, providing a determination is made that "extenuating circumstances, acceptable to the agency concerned, have prevented the employee from completing the [transaction] in the initial time frame and that the residence transaction[] [is] reasonably related to the transfer of official station." Id. 302-6.1(e)(2). The regulation does not provide for any further extensions. Ms. Locke did ask for an enlargement of time, from two years to three, within which she would be eligible for reimbursement of real estate transaction expenses in connection with her transfer to Beaumont. The agency granted her request. HUD did not and could not allow more time, however, because it has no authority to do so. Marlene L. Barger, GSBCA 15036-RELO, 99-2 BCA 30,423; Thomas W. Schmidt, GSBCA 14747-RELO, 99-2 BCA 30,430.[foot #] 1 As the Court of Appeals for the Federal Circuit has held, "Neither courts nor administrative agencies . . . have the authority to waive requirements (including filing deadlines) that Congress has imposed as a condition to the payment of federal money." Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1382 (Fed. Cir. 1999). Because the Federal Travel Regulation is issued under delegation from the Congress, it is a "legislative rule" with special weight. Its provisions, if within the granted power, issued pursuant to proper procedure, and reasonable as a matter of due process, are as binding on agencies as if they had been ----------- FOOTNOTE BEGINS --------- [foot #] 1 The situation in Schmidt was similar to this one. _______ For nearly four years after the employee was transferred from Fort Worth to Dallas, Texas, his agency actively considered closing the Dallas office and moving its employees to Fort Worth. At one point, the agency actually issued written notification to employees in the Dallas office, including Mr. Schmidt, that they would be transferred to Fort Worth. No orders to this effect were ever issued, however. To avoid having to move twice, and to save the Government the cost of paying his real estate transaction expenses both times, Mr. Schmidt endured a lengthy commute for the entire period of uncertainty. Once the agency finally decided to retain the Dallas office, Mr. Schmidt's superiors tried to amend his travel orders to extend his eligibility for reimbursement of real estate transaction expenses beyond the three-year limit. We held that given the bright-line rule in the regulation, this well-motivated attempt was impermissible. ----------- FOOTNOTE ENDS ----------- promulgated by the Congress itself. Lorrie L. Wood, GSBCA 13705-TRAV, 97-1 BCA 28,707 (1996) (citing 2 Kenneth Culp Davis, Administrative Law Treatise 36-43 (1979)); see 5 U.S.C. 5738(a)(1) (Supp. IV 1998). Thus, the three-year limit is invariable. _________________________ STEPHEN M. DANIELS Board Judge