Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405



                                                 

                          March 13, 2006
                                                 


                         GSBCA 16811-RELO


               In the Matter of BRUCE HIDAKA-GORDON


     Bruce Hidaka-Gordon, Bowie, MD, Claimant.

     Judy A. Hughes, Travel Management and Procedures Office, Defense Finance and
Accounting Service   Columbus Center, Columbus, OH, appearing for Department of
Defense.

DANIELS, Board Judge (Chairman).

     A federal employee whose first duty station was outside the United States is not
entitled to reimbursement of expenses he incurs in buying a house when he is transferred to
a new duty station within the United States.

                            Background

     After several years of federal service, Bruce Hidaka-Gordon resigned his position with
the Government in 1997 for family medical reasons.

     In 2000, while he was living in Louisville, Kentucky, Mr. Hidaka-Gordon was again
hired by the Government, this time for a job with the Department of Defense (DoD) in
Okinawa, Japan.

     In April 2005, DoD transferred Mr. Hidaka-Gordon from Okinawa to Washington,
D.C.  The travel orders issued to him by the department authorized reimbursement of real
estate expenses.  This fact was important to Mr. Hidaka-Gordon.  Before accepting the
transfer to Washington, he sought and received confirmation from agency management and
human resources officers in Japan that the Government would indeed pay for any expenses
he might incur in buying a home in the Washington area.

     After arriving in Washington, Mr. Hidaka-Gordon purchased a residence in suburban
Maryland.  He submitted a voucher for reimbursement of the expenses of buying the house. 
DoD refused to make payment, maintaining that because Mr. Hidaka-Gordon's posting to
Japan was a first duty station of a new appointee, rather than a station to which he was
transferred from one in the United States, he was ineligible to receive this benefit.

                            Discussion

     The Defense Finance and Accounting Service (DFAS), which is representing DoD
in this case, understands the law correctly.  An employee who is transferred from a duty
station outside the United States to a duty station within the country is eligible for
reimbursement of real estate transaction expenses only if he was previously transferred to the
overseas post from a post in the United States.  5 U.S.C.   5724(d)(2) (2000); 41 CFR
302-11.2(b) (2004); JTR C14000-C.2 note.  Mr. Hidaka-Gordon was not transferred to
Okinawa from a duty station in the United States.  Instead, he went to Okinawa as a new
appointee.  Therefore, he was not eligible for reimbursement of real estate transaction
expenses when he was transferred to Washington.

     The fact that Mr. Hidaka-Gordon worked for the Government for several years before
taking the job in Okinawa does not alter the conclusion that he was a new appointee, for the
purpose of the regulations governing federal travel and relocation benefits, when he went
there.  Generally, an individual who returns to Government employment after a break in
service is considered to be a new appointee for the purpose of these regulations.  There is one
exception to this rule: an individual who returns to Government service within a year of
having been separated as a result of a reduction in force or a transfer of functions is not
considered to be a new appointee.  41 CFR 302-3.1(b) (2004); JTR C5080-B.2.b(3).  Because
Mr. Hidaka-Gordon did not return to Government service within a year of having been
separated, and because he was not separated as a result of a reduction in force or a transfer
of functions, he does not fall within this exception.

     Mr. Hidaka-Gordon is rightfully upset to learn this explanation, having been assured
before he left Okinawa that he would be reimbursed for expenses of buying a home in the
Washington area.  DFAS properly observes that his command in Japan "did him a disservice
when they issued orders that erroneously authorized expenses that, by statute, cannot be
paid."  But there is no way that either DFAS or the Board can right this wrong.  Allowing an
agency to make a payment for a purpose not authorized by statute or regulation would violate
the Appropriations Clause of the Constitution.  U.S. Const. art. I,   9, cl. 7 ("No money shall
be drawn from the Treasury, but in consequence of Appropriations made by Law.")  The
Supreme Court consequently has made clear that an executive branch employee's promise
that the Government will make an "extrastatutory" payment is not binding.  Where relevant
statute and regulations do not provide for payment for a particular purpose, an agency may
not make such payment.  Teresa M. Erickson, GSBCA 15210-RELO, 00-1 BCA   30,900
(citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop
Insurance Corp. v. Merrill, 332 U.S. 380 (1947)).  Although the employee may have relied
to his detriment on his agency's assurances, 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.  Alexander S. Button, GSBCA 16138-RELO, 04-1 BCA 
 32,452 (2003); Louise C. Mƒsse, GSBCA 15684-RELO, 02-1 BCA   31,694 (2001); Gary
MacLeay, GSBCA 15394-RELO, 01-1 BCA   31,210 (2000).

                             Decision

     The claim is denied.





                                   _________________________ 
                                   STEPHEN M. DANIELS
                                   Board Judge