Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405









                                                          



                          June 13, 2005

                                                          





                         GSBCA 16641-RELO





                 In the Matter of KEVIN R. KIMIAK





     Kevin R. Kimiak, Panama City, FL, Claimant.



     Judy Hughes, Travel Management and Procedures Office, Defense Finance and

Accounting Service, Columbus Center, Columbus, OH, appearing for Department of

Defense.

                                 

PARKER, Board Judge.



     The Department of Defense's (DoD's) Defense Finance and Accounting Service has

forwarded for our review Kevin R. Kimiak's claim for reimbursement of real estate

expenses.  In June 2004, Mr. Kimiak was hired as a supervisory information technology

specialist by DoD's Center for Explosive Ordnance Disposal and Diving in Panama City

Beach, Florida.  At the time he was hired, Mr. Kimiak was not a Government employee. 

Mr. Kimiak was issued travel orders to travel from his residence in Athens, Georgia, to his

first duty station in Panama City Beach.  The travel orders authorized reimbursement of real

estate expenses.  In November 2004, Mr. Kimiak sold his residence in Athens and claimed

reimbursement for the closing costs associated with the sale.



     DoD denied the claim on the basis that reimbursement of real estate expenses for

newly-hired employees is not authorized by statute or regulation.  Without a legal basis for

payment, DoD explained, Mr. Kimiak's travel orders purporting to authorize the allowance

were erroneous and cannot entitle him to reimbursement.  Mr. Kimiak's supervisor has asked

us to review DoD's determination.



                            Discussion



     Although the agency did Mr. Kimiak a disservice by purporting to authorize

reimbursements that it had no power to authorize, the agency is correct that Mr. Kimiak's

claim must be denied.  By statute, a new appointee to federal service is entitled to certain

benefits when he moves to his duty station from his place of residence at the time of

appointment.  5 U.S.C.    5722, 5723 (2000).  These benefits are similar to those provided to

an employee whom an agency transfers in the interest of the Government from one duty

station to another, id.    5724, 5724a, but they are not identical.  Agencies are authorized to

reimburse the travel and transportation expenses of a new appointee and his or her immediate

family, the transportation and temporary storage expenses of household goods and personal

effects, and the cost of shipping a privately owned motor vehicle from the place of residence

at the time of selection to the initial duty station.  Id.   5723.  The Federal Travel Regulation

(FTR) similarly provides for the payment of the foregoing expenses, 41 CFR 302-3.2 (2003),

and makes clear that new appointees may not receive an allowance for expenses incurred in

residence transactions.  Id. 302-11.4(a); Karen R. Brown, GSBCA 14871-RELO, 99-2 BCA 

 30,429; Charles G. Bakaly, III, GSBCA 14750-RELO, 99-1 BCA   30,249, reconsideration

denied, 99-1 BCA   30,367.  These regulations have the force and effect of law.  DoD's Joint

Travel Regulations (JTR) are to the same effect.  JTR C14001.



     The fact that Mr. Kimiak's travel orders erroneously authorized reimbursement of real

estate expenses did not create a contractual right to reimbursement.  In similar situations, we

have consistently followed the Supreme Court's direction that the Government cannot be

held to its representatives' promises when they are contrary to law; subjecting the

Government to estoppel in these circumstances would allow it to spend money in ways which

have been forbidden by Congress.  E.g., Louise C. Masse, GSBCA 15684-RELO, 02-1 BCA 

 31,694 (2001) (citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990);

Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)).  It is well established that

travel orders which erroneously authorize relocation expenses to which a new employee is

not entitled cannot create a right to reimbursement in excess of the statutory and regulatory

entitlements.  Wendy Castineira, GSBCA 15092-RELO, 00-1 BCA   30,740; William

Archilla, GSBCA 13878-RELO, 97-1 BCA   28,799.  This is true regardless of whether the

employee relied to his or her detriment on the erroneous orders.  Marlene Lewis,

GSBCA 15431-RELO, 01-2 BCA   31,642; Castineira; Archilla.



                             Decision



     DoD correctly applied the law in deciding that Mr. Kimiak's claim should not be paid. 

The claim is thus denied.







                                   __________________________

                                   ROBERT W. PARKER

                                   Board Judge