Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405



                                                 

                          April 26, 2006
                                                 


                         GSBCA 16801-RELO


               In the Matter of JAMES W. RORIE, SR.


     James W. Rorie, Sr., FPO Area Pacific, Claimant.

     Osvaldo Luis Gratacos, Office of Inspector General, Agency for International
Development, Washington, DC, appearing for Agency for International Development.

DANIELS, Board Judge (Chairman).

     The Agency for International Development (AID) transferred James W. Rorie, Sr.,
from Washington, D.C., to Manila, Philippines, in August 2005.  AID paid most of the
expenses Mr. Rorie incurred in moving to the Philippines.  The employee challenges the
agency's determination not to pay two of the amounts claimed.  The first amount is for fees
paid to the Bureau of Citizenship and Immigration Services to process applications made by
the employee's wife.  The other is for the costs of newspaper advertisements for rental of the
employee's house in the Washington area which were rendered useless when the employee's
transfer was delayed.

     Before addressing the matters raised by Mr. Rorie, we consider AID's position that
the Board does not have jurisdiction to consider the claim.  The agency reasons as follows: 
Mr. Rorie is a member of the Foreign Service.  Congress created a personnel system for the
Foreign Service which is separate from the personnel system for the Civil Service.  See
S. Rep. No. 96-913, at 1-2 (1980), reprinted in 1980 U.S.C.C.A.N. 4419, 4419-20.  The
Secretary of State is responsible for administering this separate system.  22 U.S.C.   3921
(2000).  Congress has established a Foreign Service Grievance Board, which may resolve
grievances by members of the Foreign Service regarding the "[a]lleged denial of an
allowance, premium pay, or other financial benefit to which a member claims entitlement
under applicable laws or regulations."  Id.    4135-4140; 3 Foreign Affairs Manual (FAM)
4412(c)(7), 4440-4479, 4451.  Among the "other financial benefits" which may be the
subject of a grievance are allowable travel and miscellaneous expenses, for which the
Secretary has established rules in the Foreign Affairs Manual.  14 FAM 530-536, 560-568. 
"Therefore," AID concludes, "the proper venue for [Mr. Rorie's] appeal is the Foreign
Service Grievance Board," not the General Services Board of Contract Appeals.

     The General Services Board of Contract Appeals has already settled many claims by
Foreign Service Officers for expenses incurred in relocating to new duty stations.  E.g.,
Jennifer Harris, GSBCA 16767-RELO (Mar. 14, 2006); James L. Landis, GSBCA
16684-RELO (Feb. 24, 2006); Michael S. Ross, GSBCA 16737-RELO, 06-1 BCA   33,154
(2005); David Hunter, GSBCA 16651-RELO, 05-2 BCA   33,102; Mark Burnett, GSBCA
16578-RELO, 05-1 BCA   32,958.  Thus, AID's suggestion that we dismiss Mr. Rorie's
claim for lack of jurisdiction seems odd.  Nevertheless, we examine it fully.

     While it is possible that Mr. Rorie might at one time have filed a grievance with the
Foreign Service Grievance Board regarding his claim for travel expenses, that board is not
the only forum at which he might have filed.  The FAM provides that   

     A grievant may not file a grievance with the [Foreign Service Grievance]
     Board if the grievant has formally requested, before filing a grievance, that the
     matter or matters which are the basis of the grievance be considered or
     resolved and relief be provided, under another provision of law, regulation, or
     Executive Order, and the matter has been carried to final decision under such
     provision on its merits or is still under consideration.

3 FAM 4428(a).

     Another provision of law, 31 U.S.C.   3702(a)(3), gives the Administrator of General
Services the authority to "settle claims involving expenses incurred by Federal civilian
employees for official travel and transportation, and for relocation expenses incident to
transfers of official duty station."  The Administrator has delegated his responsibilities under
this law to the General Services Board of Contract Appeals.  GSA Order ADM P 5450.39C
CHGE 78 (Mar. 21, 2002).  Because Mr. Rorie, as a member of the Foreign Service, is a
Federal civilian employee, he may choose to have his claim settled by us.  He has made such
a choice, and our consideration of his claim precludes him from seeking resolution through
the Foreign Service Grievance Board.  Landis.  Thus, contrary to AID's position, the General
Services Board is now a proper forum for settlement of Mr. Rorie's claim and the Foreign
Service Board is not.

     We now turn to the claim itself.  The purpose for which Mr. Rorie paid fees to the
Bureau of Citizenship and Immigration Services is not entirely clear from the filings made
by the employee and the agency.  Mr. Rorie asserts that the fees were paid to obtain a
diplomatic passport for his wife.  AID, on the other hand, says that the fees were paid to
obtain United States citizenship for her.  The difference is important because the FAM
provides that "[f]ees in connection with the issuance of passports and visas, and other legally
required costs" are reimbursable travel expenses, but it does not list citizenship application
fees as reimbursable.  14 FAM 562(a)(7).  Passport and visa fees are considered to be
incurred incident to a transfer to a station abroad, whereas citizenship application fees are
viewed as being incurred for reasons of personal preference independent of a transfer.

     Mr. Rorie conflates the reimbursable and nonreimbursable expenses by asserting that
United States citizenship is a prerequisite for the variety of passport necessary to receive the
variety of visa essential to staying in the Philippines for an extended period and working
there.  In September 2004, when he was selected for the assignment in the Philippines, his
wife was not an American citizen.  It is clear from the record that during the period between
September 2004 and August 2005, when the Rories finally moved to the Philippines, efforts
were made which culminated in Mrs. Rorie receiving both citizenship and the necessary
passport.  It is not clear, however, whether the charges for which Mr. Rorie seeks
reimbursement were for one or the other.  To the extent that the employee can prove to the
agency's satisfaction that the fees were for a passport or visa, those fees are reimbursable. 
To the extent, however, that the fees were for application for citizenship, they are not.

     What of the costs of the newspaper advertisements?  In the early fall of 2004, Mr.
Rorie's assignment to the Philippines was scheduled to begin in February 2005.  Late in the
fall, it was rescheduled to begin in the summer of 2005.  At a time when the assignment was
supposed to commence in February, according to Mr. Rorie, he placed the advertisements
for the rental of his home while he was abroad.  The change of the starting date of the
assignment made it impossible for the employee to rent the house in February, since he
would still be living in it.  Thus, the ads were for naught.

     AID refused to reimburse Mr. Rorie for the costs of the advertisements because it does
not pay for "losses in selling, buying or renting real and personal property and costs of items
related to such transactions."  This explanation misses the mark, for it does not address the
employee's argument that the costs were wasted as a result of an action of the agency   the
determination to change the date on which the assignment to the Philippines would begin. 
The record shows, however, that AID's decision was correct, even if its justification was not. 
The primary reason for the delay of Mr. Rorie's transfer was not that the agency needed to
keep him in Washington for an additional six months, but rather, that it generously allowed 
him to remain there until his wife had obtained United States citizenship and therefore could
qualify for a diplomatic passport.  The costs of the advertisements were wasted because AID
modified its position as a courtesy to the employee.

     Although neither the employee nor the agency has cited a FAM provision which
addresses such a situation, we have found one which applies by analogy.  Under 14 FAM
565.1, "[w]hen a reservation for accommodations on a train, vessel, or plane is canceled
because of unavoidable delay or official necessity, the cost of the service fee charged by the
carrier is allowed.  Fees paid for cancellations of reservations for personal reasons or
personal delays in notifying the carrier are not reimbursable."  This provision is based on the
sound principle that the party which causes a change in plans is responsible for the costs
associated with that change.  Applying that principle to the situation at hand, we see that the
advertisements were made unnecessary for reasons benefiting Mr. Rorie personally, not
official necessity.  The employee should therefore bear the costs of the advertisements.





                                   _________________________ 
                                   STEPHEN M. DANIELS
                                   Board Judge