Board of Contract Appeals General Services Administration Washington, D.C. 20405 August 10, 1999 GSBCA 15027-RELO In the Matter of STEPHANIE P. RIDDLE Stephanie P. Riddle, Patuxent River, MD, Claimant. John P. Turner, Office of Counsel, Naval Air Systems Command, Patuxent River, MD, appearing for Department of the Navy. DANIELS, Board Judge (Chairman). Stephanie P. Riddle, a mechanical engineer employed by the Department of the Navy, was transferred from the Warminster, Pennsylvania, Naval Air Warfare Center (near Philadelphia) to the Patuxent River, Maryland, Naval Air Warfare Center on September 9, 1996. Generally, an agency will reimburse a transferred employee for costs incurred in selling a residence at the old duty station and buying one at the new station only if settlement occurs within two years after the date the employee reports for duty at the new station. 41 CFR 302-6.1(e)(1) (1996); JTR C14000-B. Ms. Riddle asked the Navy to enlarge the period of her eligibility for reimbursement of these expenses. The agency denied her request, and she asked us to review the denial. Background The Joint Travel Regulations (JTR), which apply to civilian employees of the Department of Defense, provide: Upon an employee's written request, the 2-year time limitation for completion of the sale and purchase . . . transactions may be extended by the commanding officer of the activity bearing the cost, or his/her designee for an additional period of time not to exceed 1 year. . . . Approval of the additional period of time will be based on a determination that extenuating circumstances, acceptable to the commanding officer of the activity concerned . . . , have previously prevented the employee from completing the sale and purchase . . . transactions in the initial timeframe and that the residence transactions are reasonably related to the PCS [permanent change of station]. JTR C14000-B (Sept. 1, 1995). The following facts are relevant to a determination as to whether "extenuating circumstances . . . prevented [Ms. Riddle] from completing the sale and purchase . . . transactions in the initial timeframe." Even before Ms. Riddle was transferred to Patuxent River, the Navy had authorized her to engage in long-term training at the University of Pennsylvania, in Philadelphia, from January to July 1997. In December 1996, the training period was postponed, to run from March to September 1997. The agency allowed Ms. Riddle to be in leave without pay status for the year after the training was completed, so that she could continue working on a Ph.D. degree from the university in systems engineering. Ms. Riddle kept her home in the Philadelphia area and lived there throughout the periods of training and leave without pay so that she could be close to the place where she was studying. In early September 1998, she returned to Patuxent River. In March 1998, while still in Philadelphia, Ms. Riddle asked that her period of eligibility for reimbursement of real estate transaction expenses be enlarged, "because I simply did not have the time or money to sell my place and look for and buy one in Southern Maryland by September 9, 1998" -- the second anniversary of her transfer. The agency's authorized official responded, "I consider your circumstances to be based on personal choices rather than compelling reasons beyond your control as required by the Joint Travel Regulations. Therefore, I must deny your request for an extension." Her branch head asked for reconsideration of the decision. He explained that the employee's department had "encouraged and helped fund Ms. Riddle's doctoral work. By maintaining a home in the Philadelphia area, she was able to continue the effort under her own funds. However, her commitment to finishing her dissertation precluded her timely move back to [Patuxent] River." He explained further, "Ms. Riddle is a valued employee who was pursuing higher education to increase her value to the command. Appropriate programs at the Ph.D. level were not available in this area, and her return to the Philadelphia area allowed for her efforts to continue unabated." This time, the authorized official responded, "While I am sympathetic to the arguments presented . . . , I am bound by regulation to continue to deny Ms. Riddle's extension request. The Joint Travel Regulations require that the reasons for granting an extension must be for extenuating circumstances beyond the employee's control reasonably related to the permanent change of station (PCS). Unfortunately, pursuing a degree is not related to the PCS. Furthermore, Ms. Riddle was notified almost six months prior to the expiration of her orders that her request was denied, thereby giving her ample time to make other arrangements." Discussion The official charged with making a determination on Ms. Riddle's request, to his credit, attempted to apply the appropriate JTR rule. Unfortunately, he misunderstood both the standard to be used and the facts relating to the employee's situation. The standard, as set forth above, is: Approval of the additional period of time will be based on a determination that extenuating circumstances, acceptable to the commanding officer of the activity concerned . . . , have previously prevented the employee from completing the sale and purchase . . . transactions in the initial timeframe and that the residence transactions are reasonably related to the [permanent change of station]. This standard requires the agency official to make three separate determinations: (1) Did extenuating circumstances prevent the employee from completing the sale and purchase transactions within two years of the date on which she reported for duty at the new station? (2) Were those circumstances acceptable to the official? (3) Were the residence transactions reasonably related to the permanent change of station? The official has misconstrued the first issue and confused the third one with it. In conditioning approval on a determination that extenuating circumstances have prevented the employee from completing real estate transactions within the first two years after being transferred, the JTR do not require that the circumstances have been "beyond the employee's control." Any action which has contributed to the predicament in which the employee finds herself may be considered in evaluating whether the circumstances were excusable. The events which must be "reasonably related to the permanent change of station" are not the extenuating circumstances, but rather, the residence transactions. As to the facts, the official assumed that Ms. Riddle kept her home in the Philadelphia area, rather than selling it and buying one near Patuxent River, for reasons of personal preference. As the employee's branch head has made clear, the Navy authorized her to assume a training assignment and continue her education because these activities would benefit the agency as well as the employee. When Ms. Riddle was transferred to Maryland, both she and the agency knew that within a few months, she would be returning to Pennsylvania for long-term training. By keeping her home in Pennsylvania, she was able to perform that training while saving the agency costs of her meals and lodging over a six-month period. By not purchasing a new residence in Maryland at that time, she avoided having to pay for a home in which she would not be living for a lengthy period. These choices were beneficial to both the employee and the agency. Once leave without pay was authorized, so that Ms. Riddle could continue her education for the mutual benefit of the agency and herself, the purchase of a new home in Maryland would again have been purposeless, since the employee would not be living in that house. Not until two years had passed from the date on which Ms. Riddle first reported to Patuxent River did it make sense for the employee to sell her residence in Pennsylvania and buy one in Maryland, in connection with the transfer. In our view, it is undeniable that extenuating circumstances -- the Navy's actions in authorizing Ms. Riddle to advance her education, for the benefit of the agency as well as the employee -- prevented the employee from completing the sale and purchase transactions within two years of the date on which she reported for duty at the new station.[foot #] 1 We also find that if Ms. Riddle actually sold her home in the Philadelphia area or bought one near Patuxent River within the following year, the transaction would have been reasonably related to the permanent change of station. At this time, however, we cannot answer the second question posed by the JTR: Were the extenuating circumstances acceptable to the agency official charged with responsibility here? This is a matter peculiarly within the province of the official himself, and because the law grants broad discretion in this sort of subjective determination, we would not disturb it unless we find that it is arbitrary, ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Navy has cited two Board decisions which it believes support a contrary conclusion. Neither of these cases is relevant to this one. In Wayne P. Delzer, GSBCA 13696-RELO, _______________ 97-1 BCA 28,696 (1996), we denied a claim for more time in which to seek reimbursement of real estate transaction expenses because the employee did not request additional time within the initial two-year timeframe and his purported request did not cite extenuating circumstances. In Rob rt L. Palmer, Jr., GSBCA ________________________ 13670-RELO, 97-1 BCA 28,685 (1996), the employee's decision to purchase a new home was precipitated by his recent marriage, not his permanent change of station. None of these difficulties is present in Ms. Riddle's claim. ----------- FOOTNOTE ENDS ----------- capricious, or clearly erroneous. Larry E. Olinger, GSBCA 14566-RELO, 98-2 BCA 29,877. To the extent that the official may have answered the question earlier, he did it based on a misperception of the relevant law and facts. We now return this matter to him, to resolve taking into consideration our judgments as to the law and facts. Ms. Riddle may seek further review by us in the event she is dissatisfied with the official's new conclusion. Two additional notes: (1) If the agency approves the enlargement of time, it may do so for no more than one year from September 9, 1998. Thus, expenses of the sale of the employee's Pennsylvania residence and purchase of a home in Maryland would be reimbursable only if the relevant transaction settles prior to September 9, 1999. (2) Ms. Riddle has also asked that the Navy pay for the transportation of her household goods to her new home in Maryland after the second anniversary of her transfer to Patuxent River. If the agency extends the period for reimbursement of real estate transaction expenses, it should pay (within the strictures of the JTR) for the transportation of household goods, as well, provided that it occurred as soon as possible after settlement. JTR C1057-A.3 (Sept. 1, 1996). _________________________ STEPHEN M. DANIELS Board Judge