Board of Contract Appeals General Services Administration Washington, D.C. 20405 May 16, 2000 GSBCA 15230-RELO In the Matter of JOHN V. DUNCAN Timothy C. Kingston of Graves, Miller & Kingston, P.C., Cheyenne, WY, appearing for Claimant. Alfonso Torres, Deputy Administrator, Veterinary Services, Animal and Plant Health Inspection Service, Department of Agriculture, Washington, DC, appearing for Department of Agriculture. DANIELS, Board Judge (Chairman). The Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) did not distinguish itself in dealing with one of its veterinarians, Dr. John V. Duncan, when it transferred him from one permanent duty station to another. The agency first lost or ignored the employee's request to delay an election of relocation services, then misapplied its own regulations regarding the matter, and finally showed great discourtesy in failing to respond to the employee when he asked for a definitive decision. Notwithstanding this sorry record, however, we are unable to grant Dr. Duncan's request for monetary relief. The employee has asked for consequential damages, rather than relocation benefits, and we cannot award such damages. Even if we could, the employee has presented no basis on which an amount could be calculated. Background In September 1995, APHIS reassigned Dr. Duncan from Puerto Rico to South Dakota, with the transfer to occur the following month. As required by an Agriculture Department regulation, the agency offered Dr. Duncan the option of having a relocation services company assist in arranging for the purchase of his residence in Puerto Rico. See Agriculture Travel Regulation DM2300-1, 302-12.2 (Oct. 3, 1994); 41 CFR pt. 302-12 (1995); 5 U.S.C. 5724c (1994). On September 29, Dr. Duncan asked for permission to delay his decision regarding this offer. He wanted to "have a 'feel for the water' in a special real estate market" before he gave an answer. This request was forwarded to APHIS's Budget and Accounting Division (known as "BAD"), where it languished for nearly a year. In September 1996, while Dr. Duncan was on temporary duty in Florida, a BAD clerk called him and asked for an immediate response as to whether he wished to elect the assistance of a relocation services contractor. A more senior official granted him time to return to South Dakota, consult his records, and reflect on the matter before making a choice. Dr. Duncan says that during the fall of 1996, he and his supervisor attempted to speak further to BAD officials about the matter, but were never granted an audience. On January 13, 1997, APHIS finally sent Dr. Duncan pertinent information. An employee forwarded to him an electronic message which asserted that he had received a one-year extension of time in which to elect relocation services, but that "[t]he time limitation to be entered into the relocation services program has expired. Dr. Duncan will have to be responsbile [sic] for selling the home on his own or using a real estate agent." The next day, Dr. Duncan wrote to APHIS's deputy administrator for veterinary services, "I am requesting that I be allowed to enter the relocation services' program at this point." He said that he had been unaware of any time limit on participating in the program and contended that the agency's failure to respond promptly to his inquiries had been the cause of his not having made an election earlier. The deputy administrator (the predecessor to the incumbent) replied on February 28, 1997, "Admittedly, an administrative error was made in processing your request for a delay. However, the error was in your favor and afforded you with [sic] an additional six months to decide." She concluded, "[Y]ou are no longer eligible to enter the relocation services program." By letter dated March 4, 1997, Dr. Duncan's lawyer requested reconsideration of the February 28 decision. The lawyer contended that in light of all that had transpired, Dr. Duncan had never really been given the option of accepting or rejecting the offer of relocation services. "The delay was not in Dr. Duncan's favor if it results in his being denied participation in the relocation service," the lawyer wrote. "Allowing Dr. Duncan to begin participation now would not cost the agency any more than it would have if he had begun earlier. Not allowing him to participate would be very costly to him and a financial hardship." APHIS did not respond to this letter, even after Dr. Duncan's lawyer asked for a status report on the matter. On January 9, 1998, Dr. Duncan sold his home in Puerto Rico and asked APHIS to reimburse him for the transaction costs he had incurred in making the sale -- a total of $15,282.50. Six days later, the agency approved payment of entire amount claimed. On June 1, 1998, Dr. Duncan's lawyer wrote again to the APHIS deputy director. He pointed out that she had still not responded to his request for reconsideration. In addition, he made a claim on the veterinarian's behalf for payment of "$11,922.91 calculated as of today. The amount claimed is subject to amendment, based in part on accumulating interest." The letter did not explain how the amount was derived. The only explanation the claimant has ever provided is one included in his lawyer's response to the agency's statement of position in this case: The basis for the amount of the Claimant's claim is that due to the Agency's decision to deny the Claimant relocation services that the Claimant was required to carry the expenses of [the] Puerto Rico home on his own. In an attempt to mitigate his losses, he rented the home after he vacated it and prior to its eventual sale. However, he had to rent the home for an amount much less than the mortgage on the property. Thus, the claimant incurred a loss based on the difference between the two amounts. In addition, if the Claimant had been allowed to participate in the relocation services program, he would have been paid by the program at the time of his entry into it. Therefore, he would have received the value and benefit of that payment at a much earlier date. Therefore, due to the Agency's wrongful decision, the Claimant was also denied the time value of his money. The APHIS deputy director replied on July 1, 1998, effectively denying reconsideration of her February 28, 1997, decision on the ground that "the agency can not [sic] over rule [sic] the departmental regulations pertaining to timeliness of application." She also commented, "[A]s of January 9 [sic -- should be 15], 1998, the agency has reimbursed Dr. Duncan for real estate expenses incurred from selling his home in Puerto Rico. Since Dr. Duncan has sold his home and his real estate expenses claim has been paid, it is questionable what additional monetary benefits he would have received through the relocation service." Discussion It should go without saying that agencies which transfer employees from one permanent duty station to another ought to treat those employees with courtesy and promptness, and apply fairly the rules applicable to expenses involved in the relocation. The employees are being transferred in the interest of the Government. The least the Government can do for them is to deal with them in a humane way. By not responding to simple requests for months on end, then abruptly and without cogent explanation denying those requests, and by making the denials without regard to applicable regulations, APHIS failed to perform its basic duties to Dr. Duncan. The principal legal issue involved in the case is whether the agency's imposition of a one-year limit on the time within which Dr. Duncan could elect to have a relocation services contractor assist in arranging for the purchase of his old residence was permissible. We find that the limitation was an invention without any basis in statute or regulation. The statute authorizing the provision of relocation services does not contain a time limit. The only two documents denominated "regulation" which have been called to our attention in this case are the Federal Travel Regulation (FTR) and the Agriculture Travel Regulation. Neither of them establishes a time limit, either.[foot #] 1 The claimant and the agency have also referred to the APHIS Employee Relocation Handbook. This handbook, too, contains no time limit on election of relocation services. The FTR does establish a limitation on the ability of a transferred employee to receive reimbursement for costs incurred in selling his residence at his old duty station. The settlement date must occur not later than two years after the date on which the employee reported for duty at his new station. 41 CFR 302-6.1(e)(1). On application of an employee, this deadline may be extended by the head of the agency or his designee for as much as one additional year. Id. 302-6.1(e)(2). This limitation has an obvious impact on the ability of an eligible employee to choose the assistance of a relocation services contractor: the employee may not make the election so late that the contractor would receive title at a time past the deadline for settlement. But that is a far cry from effectively establishing a one-year deadline -- especially where, as here, the agency saw fit to extend the limitation for sale of Dr. Duncan's home at his old station beyond the initial two-year period. We therefore conclude that APHIS had no justification for denying Dr. Duncan's request, made in January 1997, to avail himself of the help from a relocation services contractor in selling his old residence. Unfortunately for the claimant, however, our agreement with him on this hotly-debated point and in finding that the agency's responses to his inquiries were disgracefully slow cannot result in an award of what he is really looking for -- money. The Board has the authority, under delegation from the Administrator of General Services, to exercise the Administrator's power to settle claims involving relocation expenses incurred by federal civilian employees. See 31 U.S.C. 3702(a)(3) (Supp. IV 1998). We understand this charge to restrict our ability to award money to ----------- FOOTNOTE BEGINS --------- [foot #] 1 The portion of the FTR which deals with a use of a relocation services company has been completely rewritten since Dr. Duncan moved from Puerto Rico to South Dakota. The current version, like the old one, does not include any time limitation on an employee's election. See 41 CFR pt. 302-12 (1999). ___ ----------- FOOTNOTE ENDS ----------- the kinds and amounts of expenses prescribed by relevant statutes (such as subchapter II of chapter 57 of title 5, United States Code) and regulations (such as the FTR and the Agriculture Travel Regulation). Katherine Kruse, GSBCA 14656-TRAV, 99-1 BCA 30,252; Paul W. Johnson, GSBCA 13815-RELO, 98-1 BCA 29,407 (1997); Donald G. Fullmer, GSBCA 14123-RELO, 97-2 BCA 29,291; Charles A. Miller, GSBCA 13679-RELO, 97-1 BCA 28,865. Damages resulting from an agency's failure to act promptly or in accordance with relevant regulations do not fit within this category. Even if we could award consequential damages generally, we could not do it here. Dr. Duncan's final comments demonstrate an understanding that he has not yet presented sufficient documentation to justify an award. Even the outline of how he would calculate an amount due is woefully incomplete. The claimant does not compare the price at which he sold his old residence with the price he would have received had he sold it to a relocation services company a year earlier. Nor does he suggest how the latter price might be derived. Further, he does not factor into the outline the transaction cost reimbursement he has already received from the agency. And his demand for payment for the time value of money does not reckon with the proscription against the Government's payment of interest on delayed payments of relocation benefits. See Synita Revels, GSBCA 14935-RELO, 00-1 BCA 30,716 (1999), reconsideration denied (Apr. 18, 2000). _________________________ STEPHEN M. DANIELS Board Judge