Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

 

            _______________________________________________

 

                             June 13, 2000

             _____________________________________________

 

 

                            GSBCA 15313-RELO

 

 

                   In the Matter of NEIL A. FRIEDMAN

 

 

        Neil A. Friedman, Odenton, MD, Claimant.

 

        Michael  C. Gidos,  Comptroller,  National Security  Agency,

   Fort George G. Meade, MD, appearing for National Security Agency.

 

   GOODMAN, Board Judge.

 

        Claimant, Neil  A. Friedman, is an employee  of the National

   Security Agency.   He  made a permanent  change of  station (PCS)

   from Ft. Meade, Maryland  to Germany in September, 1993.   At the

   completion of  his tour  of duty, he  submitted a request  to his

   agency  for reimbursement of a security  deposit on the apartment

   he had leased.  The deposit had not been repaid by  his landlord.

   The agency  denied his  request for  reimbursement, stating  that

   there  was  no  authority  to reimburse  claimant  based  on  the

   circumstances involved. 

 

        The agency  states that in leasing the apartment in Germany,

   the claimant used a  Government  standard lease form.   The terms

   of  the  lease and  local  practice required  a  security deposit

   equivalent  to three months  rent.   Claimant used personal funds

   to  place the  deposit with  the  landlord (5100  Deutsche Marks,

   equivalent to  $3187.74 at  the prevailing  exchange rate).   The

   terms of  the lease  required the landlord  to repay  the deposit

   plus  four percent interest, less damages and outstanding utility

   bills, at the conclusion of the lease.

 

        In May 1996, claimant  completed his tour of  duty.  On  May

   15, 1996, claimant, the landlord, and a base housing officer made

   an inspection  of the premises.   The landlord agreed  that there

   was  no damage  and  stated  that he  would  return the  security

   deposit  soon  after settlement of outstanding utility bills.

 

        Shortly thereafter,  the landlord filed for  bankruptcy, and

   claimant  filed a  claim  against  the  landlord with  the  local

   tenants  council.   His  claim was  entered as  part of  a larger

   action of  all the  landlord s creditors.   Two years  later, the

   matter  had  not  been resolved.    Claimant  contracted with  an

   attorney in  Germany to determine the  status of the claim.   His

   attorney advised  that it  was fruitless to  pursue his  claim as

   there were no assets available to settle it.

 

 

        Claimant then requested the agency to reimburse  him for the

   security deposit.   The agency denied  the request, stating  that

   there  was no  statutory or  regulatory  entitlement to  recovery

   under  such  circumstances.   Claimant  requested  this  Board to

   review the agency s decision.

 

        Claimant asserts  that the  loss he  sustained was  directly

   attributable  to his  PCS,   which  he accepted  as  part of  his

   employment   and  would   not  have   been   incurred  otherwise.

   Additionally,  since the Government  was the agent  for arranging

   the rental, a Government contract was used to document the rental

   transaction, and  a Government countersignature  was an essential

   part of the contract, claimant  asserts that the Government has a

   fiduciary  responsibility  to  ensure  that  he  was  not  unduly

   penalized  for  actions  directly  required  in  support  of  his

   Government service and PCS.

 

        The agency is correct in  its determination that there is no

   statutory or regulatory authority to support reimbursement of his

   security  deposit.   Under  similar  circumstances,  in  Gary  R.

   Whitfield,  B-242154  (Mar. 28,  1991),  the Comptroller  General

   denied  reimbursement  when a  landlord  declared  bankruptcy and

   stated:

 

        We  are not unmindful  of the fact  that [claimant] has

        sustained  a loss that he  would not have sustained had

        he   not  been  transferred  in  the  interest  of  the

        government;   however,  the  loss  was  caused  by  his

        landlord s  breach  of contract,  and  not  through the

        actions  of  anyone  acting on  behalf  of  the federal

        government.   We  are  not aware  of  any statutory  or

        regulatory  authority  for  reimbursement  under  these

        circumstances.

 

        While  claimant  may not  have  incurred  the  loss  of  his

   security deposit  but for his  PCS to Germany, the  Government is

   not the guarantor of the landlord s obligations  to claimant, and

   is  not responsible  to reimburse  claimant in  the event  of the

   landlord s failure to return claimant s security deposit.

 

        The claim is denied.

 

 

 

                                 __________________________

                                 ALLAN H. GOODMAN

                                 Board Judge