Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
__________________
March 7, 2001
__________________
GSBCA 15399-RELO
In the Matter of ROBERT J. WRIGHT
Brett P. Abner of Sharp & Gay, P.A., Jacksonville, FL,
appearing for Claimant.
Jerome A. Snyder, Office of Counsel, Norfolk Naval Shipyard
Detachment, Philadelphia Naval Business Center, Philadelphia, PA,
appearing for Deparment of the Navy.
GOODMAN, Board Judge.
Claimant, Robert J. Wright, is a civilian employee of the
Department of the Navy. He has requested that this Board review
his agency's denial of reimbursement of certain costs he incurred
in the sale of his residence arising from his permanent change of
station (PCS).
Factual Background
In 1989 claimant was an employee of the Philadelphia Naval
Shipyard (PNSY). He received orders for a PCS to the United
States. Naval Ship Repair Facility in Subic Bay, Phillippines,
dated March 3, 1989. Claimant arrived at Subic Bay on April 10,
1989. In April 1991, his former permanent duty station, PNSY,
was identified by the Base Realignment and Closure (BRAC)
Commission as a base to be considered for closure, and in
September 1991 the base was approved for closure. At that time
claimant's ship repair facility at Subic Bay was scheduled to
close in July 1992. Claimant and the remaining individuals in
his command were notified about the closure of Subic Bay and told
that the mission performed at Subic Bay was to be shifted to the
Ship Repair Unit in Singapore.
According to claimant, at that time orders were issued to
approximately twenty five personnel at Subic Bay that returned
them to their homes of record. On or about March 17, 1992,
claimant received orders to return to PNSY.[foot #] 1
Claimant alleges that he then contacted his former shop
superintendent, John Peacock, to discuss returning to PNSY and
other matters concerning his future as it might exist at PNSY.
Claimant explained to his former shop superintendent that the
ship repair facility at Subic Bay was set to close, but a ship
repair unit was being set up in Singapore. He further explained
that the new positions at the Singapore ship repair facility were
slotted to be filled with employees from Subic Bay, and that his
Subic Bay shipyard commander had indicated that claimant was
qualified to fill one of the five slots and was strongly
encouraging claimant to apply for this placement. Claimant's
former shop superintendent also strongly encouraged claimant to
apply for the Singapore position.
Claimant applied for the assignment in Singapore and was
selected. On June 22, 1992, he received orders to report to
Singapore. Claimant alleges that he again contacted his former
shop superintendent. Claimant's attorney states in his
submission to the Board:
Obviously, part of the necessity of the phone call was
to alert or inform Mr. Peacock that Claimant would not
be returning, at least at this point in time, to his
shop at PNSY. A conversation then ensued between
Claimant and Mr. Peacock as to the time period,
[during] which Claimant would be posted in Singapore,
and how that interplayed with the base closure of PNSY.
Mr. Peacock realized that the likelihood would be that
Claimant would not be returning to PNSY prior to the
actual base closure [and he] further understood that
Claimant's posting in Singapore had a corresponding
beneficial effect which facilitated Mr. Peacock's
ability to enable him to fill the Claimant's permanent
position with another PNSY employee during the closure.
This would occur if Mr. Peacock canceled Claimant's
return rights to PNSY. Mr. Peacock explained all of
this to Claimant and further explained to the Claimant
that his decision is to cancel Claimant's return rights
to PNSY based upon Mr. Peacock's knowledge that
Claimant would go on [the] Priority Placement
Program[s] (PPP) at the end of his tour in Singapore.
Although Mr. Peacock stated to Claimant, without
reservation or hesitation, that he was canceling
Claimant's return rights to PNSY, to date Claimant has
never received any written documentation which confirms
the cancellation of his return rights or denies him his
return rights. The conversation then turned to the
possibility of other duty assignments for the Claimant
----------- FOOTNOTE BEGINS ---------
[foot #] 1 These orders are not in the record of this
case; however, subsequent orders dated June 22, 1992, note "This
cancels PCS travel order of 17 March 1992."
----------- FOOTNOTE ENDS -----------
in and around the Philadelphia area that might exist
when Claimant's tour in Singapore terminated. Mr.
Peacock advised Claimant that the job situation in and
around Philadelphia seemed bleak, if not non-existent,
based upon the fact that their shop mission, which was
being performed at PNSY, was not the type of mission
that was performed at a corresponding facility in that
specific region. More specifically, Claimant and Mr.
Peacock both knew that the next closest naval shipyard
performing a similar mission was located in Norfolk,
Virginia. Certainly, Norfolk, Virginia is not within
commuting distance of Philadelphia and Claimant's
former residence in Woodlyn, PA. That having been said
and recognizing all relevant factors as explained to
the Claimant by his superintendent, Mr. John Peacock,
Claimant proceeded to get his family affairs in order.
After receiving his orders for a PCS to Singapore, claimant
proceeded to place the Pennsylvania home on the market and
eventually sold his former residence on October 29, 1992.
Claimant states with regard to the sale of his residence:
Claimant's action related to the sale of his former
residence were [sic] in fact based upon the direct
statements made and forth coming [sic] orders to be
issued by his superintendent, Mr. John Peacock that, as
far as Mr. Peacock was concerned there was no longer a
job or a job position for Claimant to return to at PNSY
and further there was no available posting for Claimant
in and around the Philadelphia region.
Claimant never received orders based upon his conversations
with Mr. Peacock. On February 5, 1998, claimant accomplished
another PCS to a naval facility in Jacksonville, Florida. These
orders authorized purchase of a residence at the new duty station
but did not authorize any expenses or otherwise mention the sale
of claimant's former residence in Woodlyn, Pennsylvania. In
August 1999, claimant purchased a new residence. On March 1,
2000, claimant filed a claim requesting reimbursement for
expenses arising out of the purchase of the new residence and the
sale of his former residence. His new duty station in Florida
approved reimbursement of the expenses arising from the purchase
of the new residence and forwarded the claim for expenses for the
sale of his former residence to his old duty station in
Philadelphia. The agency thereafter denied his claim for the
expenses of sale. The basis of the agency's denial is that
claimant sold his former residence before he was officially
informed that he would be assigned to a different permanent duty
station. Claimant has requested the Board to review the agency's
denial of his request for reimbursement of the costs incurred in
the sale of his residence in 1992.
Discussion
Our recent decision in Edward J. Nanartowich, GSBCA 15237-
RELO (Feb. 2, 2001), addressed the issues raised in the instant
case. With regard to the applicable statutory and regulatory
scheme, we stated:
A federal employee normally is not expected to
sell the residence at or near the non-foreign PDS
[permanent duty station] to which he or she was
assigned when transferred to a PDS outside the United
States. Rather, it is expected that the employee will
retain the residence in anticipation of return to the
same PDS. Only if and when the employee is officially
notified at the close of the overseas tour that he or
she will be returning to a different non-foreign PDS
may the employee qualify for reimbursement of costs
associated with the sale of this residence. These
requirements are set out in statute (5 U.S.C.
5724a(d) (Supp. IV 1998)), in the Federal Travel
Regulation (41 CFR 302-6.1(g) (2000)) and in the Joint
Travel Regulations (JTR) -- to which [claimant] is
subject as a civilian employee of the Department of
Defense (JTR C14000-D (May 1, 1999)).
We have addressed these requirements of statute
and regulation on several occasions. E.g., Stephen W.
Van Dyke, GSBCA 15422-RELO (Dec. 14, 2000); Pamela A.
Mackenzie, GSBCA 15328-RELO [01-1 BCA 31,174 (2000)];
Marilyn A.Whitworth, GSBCA 15174-RELO, 00-1 BCA
30,811; Johnnie M. Jones, GSBCA 15079-RELO, 00-1 BCA
30,710; Alfred Voelkelt, GSBCA 14889-RELO, 99-1 BCA
30,362; James E. Black, GSBCA 14548-RELO, 98-2 BCA
29,876; Harry T. Teraoka, GSBCA 13641-RELO, 97-1 BCA
28,796; Chesley E. Kimbrel, GSBCA 13680-RELO, 97-2 BCA
29,043 (1996).
Slip op. at 2-3.
The statutory scheme discussed in Nanartowich which allows
reimbursement of real estate expenses to employees transferred to
a permanent duty station outside the United States was enacted
into law in 1987. While the statutory language has been
periodically amended, its content has remained the same until the
present. From its inception, an employee was not entitled to
reimbursement if the sale occurred before "official notification
that the employee's return to the United States would be to an
official duty station other than the official station from which
the employee was transferred when assigned to the foreign post of
duty." 5 U.S.C. 5724a(a)(4)(A) (1988).
When claimant sold his home in October 1992, the Federal
Travel Regulation, 41 CFR 302-6.1(g) (1992), supported the
statutory scheme. It allowed, under certain conditions,
reimbursement for the sale of a residence at the official duty
station from which the employee was transferred when he/she was
assigned to a post of duty located in a foreign
area.[foot #] 2 The conditions are described in the
following provision:
Reimbursement limitations. Reimbursement under this
paragraph is prohibited for any sale . . . or purchase
transaction that occurs prior to the employee's first
being notified (generally in the form of a change of
official station travel authorization) that instead of
returning to the former nonforeign area official
station, he/she will be reassigned or transferred to a
different nonforeign area official station than the one
from which he/she was transferred when assigned to the
foreign post of duty.
41 CFR 302-6.2(g)(4).
The issue in this case is whether claimant sold his home at
his former permanent duty station before or after he received
official notification that his return to the United States would
be to an official duty station other than the official station
from which he was transferred when assigned to the foreign post
of duty. Claimant alleges that in 1992, before he sold his home
at his previous permanent duty station, he was advised verbally
by his former shop superintendent that his return rights were
canceled. He did not receive notification by change of official
station travel authorization that instead of returning to the
former nonforeign area official station, he would be reassigned
or transferred to a nonforeign area official station other than
one in the vicinity of Philadelphia. He admits that official
travel orders confirming the verbal advice were not forthcoming.
However, it is claimant's position that such verbal advice was
the official notification required by statute and regulation that
he would not be returning to his former permanent duty station.
Claimant says that he relied upon this notification in selling
his residence. Accordingly, claimant asserts entitlement to
reimbursement for expenses incurred in that sale.
Claimant is not entitled to reimbursement, even if his shop
superintendent had the authority to cancel his return rights and
did so. We have held that cancellation of return rights does not
----------- FOOTNOTE BEGINS ---------
[foot #] 2 In August 1994, Joint Travel Regulation (JTR)
C14000-4 (now C14000-D) was issued to supplement this FTR
provision. Both claimant and the agency have referenced a more
current version of the regulation in their submissions, but this
regulation did not exist at the time relevant to claimant's sale
of his former residence. For a detailed discussion of this
regulation, see our decisions in Alfred Voelkelt, 14889-RELO, 99-
_______________
1 BCA 30,362, and Johnnie M. Jones, GSBCA 15079-RELO, 00-1 BCA
_________________
30,710 (1999).
----------- FOOTNOTE ENDS -----------
constitute official notification that the employee is not
returning to a former PDS in the United States. Even when an
employee's return rights are canceled, there is no assurance that
at the conclusion of the employee's overseas duty the employee
will not be reassigned to a position in the same geographic area
as his former permanent duty station. Cancellation of return
rights before a claimant knows where he will be reassigned upon
his return to the United States cannot be construed as official
notification that the employee will not be returning to the
vicinity of his former permanent duty station in the United
States. Harry T. Teraoka, GSBCA 13641-RELO, 97-1 BCA 28,796.
As we explained in Nanartowich:
The rule enunciated in statute and regulation and
consistently upheld in our decisions is a reasonable
one. Pending the employee's tour of duty overseas,
both the Government and the employee keep their options
open. Much can happen during the course of an
employee's overseas tour . . . . Any decision
regarding the sale of the residence at the old PDS is
best put on hold.
Slip op. at 3.
Claimant himself admits that his actions in selling his
residence were based upon the statements made by his supervisor
and "forthcoming orders" which were never issued. Also, the
conversations between claimant and his former shop superintendent
occurred long before claimant's overseas tour of duty was over.
In fact, the conversations occurred at the inception of
claimant's second overseas assignment, and he sold his residence
shortly thereafter. He sold his residence more than five years
before his transfer to Jacksonville, Florida, when he first knew
he would not return to the United States in the vicinity of his
previous permanent duty station. Even if his return rights were
canceled in 1992, as claimant asserts, this cannot be construed
as official notification that he would not be reassigned in the
vicinity of Philadelphia upon his return to the United States.
Even though claimant knew in 1992 that the PNSY was to close,
and that further federal employment in the Philadelphia area was
unlikely for him, this did not foreclose claimant's reassignment
to the Philadelphia area in the future when he returned to the
United States. While claimant's reassignment to Florida may
validate his and his supervisor's strong expectations in 1992
that claimant would not return to Philadelphia, such a negative
outlook expressed by supervisors or employees has also been held
not to be official notification as required by statute. Johnnie
M. Jones.
Claimant sold his residence before he received the official
notification required by statute and regulation. He is not
entitled to be reimbursed the costs he seeks.
Decision
The claim is denied.
____________________________
ALLAN H. GOODMAN
Board Judge