Board of Contract Appeals General Services Administration Washington, D.C. 20405 February 18, 2000 GSBCA 15174-RELO In the Matter of MARILYN A. WHITWORTH Marilyn A. Whitworth, Blue Springs, MO, Claimant. T. R. Love, Deputy Director for Finance, Defense Finance and Accounting Service, Rock Island Operating Location, Rock Island, IL, appearing for Department of Defense. DANIELS, Board Judge (Chairman). In March 1996, the Department of the Army decided to transfer one of its quality assurance specialists, Marilyn A. Whitworth, from the Sierra Army Depot in Herlong, California to a post in Germany. Ms. Whitworth and her husband sold their home in Reno, Nevada (near the Sierra Army Depot) the following month. Three years later, the Army transferred Ms. Whitworth again, this time to the Lake City Army Ammunition Plant in Independence, Missouri. She and her husband then bought a home in Blue Springs, Missouri (near Independence). For each relocation, Ms. Whitworth's travel orders authorized reimbursement of real estate expenses. When she submitted a voucher for such reimbursement, however, the Defense Finance and Accounting Service determined that she should be paid only for the costs she incurred in purchasing the house in Missouri. Ms. Whitworth claims that she is entitled to be paid additionally for the costs she incurred in selling the house in Nevada. Statute and regulation are clear on the matter at issue: Notwithstanding the authorization contained in the travel orders, the Army may not reimburse Ms. Whitworth for the costs of selling her former home because that sale occurred before she was officially notified that her return to the United States would be to an official station different from the one from which she was transferred when assigned to her foreign post. The rule disallowing costs of sales which occur before an employee receives such official notification is enunciated in statute, 5 U.S.C. 5724a(4)(A) (1994); the Federal Travel Regulation, which applies to all federal civilian employees, 41 CFR 302-6.1(g)(4) (1995); and the Joint Travel Regulations (JTR), which apply to civilian employees of the Department of Defense, JTR C14000-D.2 (Sept. 1, 1995); see also id. C14000-D.1.[foot #] 1 Ms. Whitworth says that when she left the Sierra Army Depot, she did not expect to return there. She cites three reasons for this expectation: her reemployment rights were with the Quality Assurance Specialist (Ammunition Surveillance) Program, not with this depot; after each of her two previous overseas tours, she had been reassigned to a duty station different from her previous United States station; and the Sierra Army Depot was on the list of bases proposed for realignment or closure at the time she went to Germany. These are good reasons for her expectation, but the prospect of an event occurring -- even the very likely prospect of an event occurring -- is not official notification that the event will occur. That notification -- a necessary prerequisite for reimbursement of the costs of selling the Nevada residence -- was not forthcoming until well after the home had been sold. See Johnnie M. Jones, GSBCA 15079-RELO (Nov. 23, 1999) (agency advice as to "negative outlook" for return to former station is not official notification that return to United States will be to official station different from the one from which employee was transferred when assigned to foreign post); Alfred Voelkelt, GSBCA 14889-RELO, 99-1 BCA 30,362 (inclusion of depot on base realignment and closure list insufficient to constitute official notification); Harry T. Teraoka, GSBCA 13641-RELO, 97-1 BCA 28,796 (lack of return rights to United States station from which transferred overseas not official notification that employee would not be returning to that location). The fact that the agency issued travel orders which authorized reimbursement of real estate transaction expenses Ms. Whitworth might incur in leaving the Sierra Army Depot for Germany does not help the claimant. For an agency to tell an employee that she is eligible for reimbursement of certain expenses, when the law prevents payment of those costs, is always regrettable and may sometimes mislead the employee into taking actions which are financially detrimental. Nevertheless, as we have explained: In considering claims like this one, . . . the arbiter must balance the harm the employee would suffer if the claim were denied against the damage which would result to our system of government if federal officials were free to spend money in ways which are contrary to the strictures of statute and regulation. In making this ----------- FOOTNOTE BEGINS --------- [foot #] 1 We cite here to the statute and regulation which were in effect on the effective date of Ms. Whitworth's transfer to Germany. See 41 CFR 302-1.3(d) (1995 & 1999). The rule ___ stated here remains in effect. It is now codified at 5 U.S.C. 5724a(d)(3) (Supp. IV 1998) (referencing id. 5724a(d)(2)); 41 ___ CFR 302-6.1(g)(2) (1999); and JTR C14000-D.2 (May 1, 1999). ----------- FOOTNOTE ENDS ----------- balance, the Supreme Court has clearly come down on the side of protecting our system of government. We follow the Court in holding that although [the employee] has undeniably relied to his detriment on [the agency's] promises, he may not be reimbursed because the law prevents the agency from honoring commitments made in its name by officials who do not have the power to make them. George S. Page, GSBCA 15114-RELO (Nov. 24, 1999) (referencing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)); see also James E. Black, GSBCA 14548-RELO, 98-2 BCA 29,876; Chesley E. Kimbrel, GSBCA 13680-RELO, 97-2 BCA 29,043 (1996). . _________________________ STEPHEN M. DANIELS Board Judge