Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405







                                        

                  ______________________________



                        September 26, 2003

                 _______________________________





                         GSBCA 16107-RELO





                In the Matter of WILLIAM D. DOOLEY





     William D. Dooley, Wolf Creek, MT, Claimant.



     William A. Curtis, Acting Director, Defense Security Service, Alexandria, VA,

appearing for Department of Defense.



HYATT, Board Judge.



     Claimant, William D. Dooley, a retired employee of the Defense Security Service

(DSS), seeks reimbursement of the costs of selling a home in Fairbanks, Alaska, incident to

his retirement from federal service and return to the continental United States.  DSS has

disallowed his claim for the real estate expenses in question on the ground that the agency

lacks authority to pay these costs.  



                            Background



     Mr. Dooley served as an agent for DSS in Fairbanks, Alaska, from 1991 until October

2002, when he retired from Government service.  Prior to his retirement, claimant was

scheduled to return to the continental United States in September 1998.  Although he wished

to return to the continental United States at that time, there were no agents available to take

his place in Fairbanks and he was asked to extend his tour.  Apparently in anticipation that

he would retire in October 2002, Mr. Dooley agreed to extend the tour for another two years

subject to retention of permanent change of station (PCS) benefits, including the payment of

real estate transaction expenses in connection with the sale of his house in Alaska at that

time.  The agency requested approval of the extension of his tour, with the notation that "at

the conclusion of this extension he will be entitled to PCS back to the 'lower 48.'"  The tour

extension was approved by the Director of DSS.   



     Mr. Dooley completed his additional tour in Alaska and then retired and moved to the

continental United States.  Prior to leaving Alaska, while completing paperwork for his

retirement, Mr. Dooley inquired about the process for applying for reimbursement of the

costs of selling his house in Alaska.  He was advised that DSS could not pay these costs in

connection with a separation from Government service.  He was told to submit a "waiver

request," which he did, asking that the pertinent provisions of the JTR be waived since he

had fulfilled his obligation to complete another tour.  The agency responded in writing that,

regardless of any understanding that may previously have been reached, there is no authority

to pay real estate transaction expenses in the circumstances.  Mr. Dooley has asked the Board

to review the agency's denial of his claim.



                            Discussion



     By statute, agencies are authorized to pay per diem, transportation expenses for the

immediate family, movement and temporary storage of household goods and, additionally,

such items as an allowance for miscellaneous expenses, temporary quarters subsistence

expenses (TQSE), and certain real estate transaction costs, when an employee is transferred,

in the interest of the Government, from one official station to another for permanent duty. 

5 U.S.C.    5724, 5724a (2000).  Return travel from a duty station outside the continental

United States for the purpose of separation or retirement does not constitute a permanent

change of station for the purpose of the statute, however.  Louis David Carter, GSBCA

15381-RELO, 00-2 BCA   31,137 (citing Arnold Krochmal, B-213730 (Apr. 17, 1984)).  



     The expenses payable to an employee who is returning to the continental United States

for separation from Government service or retirement are governed by 5 U.S.C.   5722. 

Expenses recoverable under the return rights provision are significantly limited compared to

the expenses payable to an employee relocating to a new permanent duty station in the

interest of the Government.  In particular, reimbursement of real estate expenses associated

with the sale and purchase of homes, the miscellaneous expenses allowance, and

reimbursement of TQSE are not part of the return rights package.  See, e.g., Jackie Leverette,

GSBCA 15806-RELO, 03-1 BCA   32,119; Robert K. Oja, GSBCA 15807-RELO, 02-2 BCA 

 31,955; Frederick J. Barth, GSBCA 15432-RELO, 01-2 BCA   31,331.  Neither the Federal

Travel Regulation (FTR) nor the Joint Travel Regulations (JTR), which apply to civilian

employees of the Defense Department, permit the payment of real estate transaction expenses

in these circumstances.  See 41 CFR 302-3.300 (2002); JTR C14001-4.  The employees in

DSS who recommended that Mr. Dooley should be reimbursed the expenses of a PCS upon

retirement after extending his tour in Alaska had no authority to waive the pertinent

regulations. 



     Although it is unfortunate that claimant was led to believe that he would be eligible 

for reimbursement of his real estate transaction expenses if he extended his tour in Alaska

and then retired, good faith reliance on erroneous advice does not provide a basis to allow

the payment of such costs -- the Government is not bound by representations or acts of its

agents which exceed the actual authority conferred by statute or regulation.  Carter.  The

agency has properly determined that it cannot pay the claimed expenses.







                                   __________________________________

                                   CATHERINE B. HYATT

                                   Board Judge