Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ April 27, 2000 __________________ GSBCA 15215-RELO In the Matter of JOHN E. WHITE John E. White, Colstrip, MT, Claimant. Gene Virden, Acting Chief, Division of Accounting Management, Bureau of Indian Affairs, Department of the Interior, Albuquerque, NM, appearing for Department of the Interior. HYATT, Board Judge. In October 1996, claimant, John E. White, was promoted within the Bureau of Indian Affairs (BIA) from an accounting officer position in Billings, Montana to a superintendent position at the Northern Cheyenne Agency, Lame Deer, Montana. His reporting date for the new position was October 13, 1996. Relocation costs were authorized in connection with the transfer. At the time he was transferred, Mr. White owned a residence in Billings, Montana. The new position required a security clearance. After a background investigation was conducted, the security specialist recommended that the clearance be denied. Mr. White appealed this recommendation to the Department of the Interior s Personnel Security Appeals Board (PSAB) and, pending a final decision on the clearance, was permitted to remain as superintendent at the Northern Cheyenne Agency with the understanding that if the clearance was ultimately denied, he would be demoted back to his former position in Billings. Because his tenure in the new position was in doubt pending resolution of his eligibility for a clearance, Mr. White did not undertake to sell his house in Billings, which he intended to reoccupy if he was eventually demoted. On April 29, 1999, the PSAB determined that Mr. White was eligible for a clearance and assignment to a sensitive position. On July 12, 1999, Mr. White received a Certification of Favorable Determination for a Sensitive Position. After he received and signed the necessary security documents on July 12, Mr. White promptly contacted a realtor and put his house in Billings on the market by July 14. He accepted the first written offer he received for the purchase of the house, which was made on October 4, 1999, and closed on the sale of the house on October 21, 1999. Mr. White s claim for reimbursement of real estate expenses incurred in connection with the sale of his house in Billings was rejected because the sale occurred more than three years after he reported for duty at the North Cheyenne Agency. Mr. White challenges this determination, pointing out that the timing of the resolution of his eligibility for a clearance was outside his control and he did everything possible to meet the deadline once his clearance was processed and his promotion made permanent. Discussion Under the Federal Travel Regulation (FTR), reimbursement of real estate transaction expenses is available only if the settlement date of the sale or purchase of a residence occurs no later than two years after the date the employee reported for duty at the new official station, or three years after that date in the event a one-year extension of this limitation has been approved by the head of the agency (or a designee). 41 CFR 302- 6.1(e) (1996). Three years is the maximum time limit for recovery of these expenses. The Board has previously explained with respect to this rule: 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 promulgated by 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. Nanette O. Locke, GSBCA 15144-RELO, 00-1 BCA 30,706 (1999); accord Robert R. Goulka, GSBCA 15145-RELO (Feb. 24, 2000). Both the claimants in Locke and in Goulka, like Mr. White, had good reasons for missing the three-year deadline applicable to recovery of real estate transaction expenses. Nonetheless, neither the agency nor the Board has the authority to waive this requirement. Claimant cannot recover the expenses associated with the sale of his residence in Billings. _________________________________ CATHERINE B. HYATT Board Judge