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



                    _________________________

                         January 15, 2002
                    _________________________


                         GSBCA 15193-RELO


                 In the Matter of ALAN R. BROOKS  


     Alan R. Brooks, Rockville, MD, Claimant.

     Dirk W. Richter, Personnel Management Specialist, Civilian Personnel
Directorate, Europe, appearing for Department of the Army.

WILLIAMS, Board Judge.

     An employee who declines a transfer to accept a promotion for personal
preference is not entitled to relocation expenses.

                            Background

     Claimant, Alan R. Brooks, a supply specialist with the Department of the
Army, was transferred from Germany to the United States through the Department
of Defense's (DOD's) priority placement program, and travel orders were issued
for his relocation.  However, four days before claimant's scheduled reporting date
of January 3, 1999, he was notified that he received a promotion to a position
located in Germany.  The promotion was the result of a reclassification of
claimant's position description.  Claimant accepted the promotion, declined the
transfer, and remained in the overseas area.  His travel orders for the relocation
were rescinded on January 4, 1999.  Household goods and personal property
shipments were diverted for redelivery to him.  However, claimant's automobile
was already in transit to the United States, and the agency directed its return to
Germany.  

     On January 14, 1999, the civilian personnel office (CPO) determined that
claimant was not liable for expenses of shipping his furniture, household goods,
and car.  The CPO also advised claimant that, since his travel orders had been revoked, he
was not eligible to receive temporary quarters subsistence allowance (TQSA); he could
continue to receive living quarters allowance (LQA) but not the cost of meals.

     Claimant seeks reimbursement for the following expenses:

            Date                  Explanation of Costs             Amount

     12-Jan-99           Telephone re-connection                $30.94
     12-Jan-99           Bath towel                              $4.00
     12-Jan-99           Can opener                              $1.60
     12-Jan-99           Pillow                                  $9.75
     21-Dec-98 - 1-Jun-99                         Rental car            $1630.18
     29-Jan-99           Re-registration of weapon                    $8.00
     29-Dec-98 - 11-Jan-99                        TQSA meals             $163.70

                                                   TOTAL           $1848.17
                                  
     Claimant did not file a formal claim for reimbursement with the agency prior to
submitting his request to the Board.  However, according to the agency, "an informal
advisory opinion was provided by the Civilian Personnel Advisory Center (CPAC) in
Bamberg, Germany, with a request that Mr. Brooks submit his claim in writing to
Headquarters, U.S. Army Europe (USAREUR), Civilian Personnel Directorate (CPD) for
review and official determination."  Claimant states that he attempted to file a claim with the
agency, explaining:  "Actually, I spoke with an Army CPAC representative on . . . several
occasions, and she advised me that the Army could not reimburse me for any costs resulting
from the cancellation of my travel orders.  In fact, [she] faxed to me the procedures for filing
a claim through the General Services Administration Board of Contract Appeals.  The Army
had every possibility to advise me to file a claim through [its] office."

                            Discussion

Jurisdiction

     Ordinarily, under Rule 401, we would dismiss for lack of jurisdiction a travel or
relocation claim filed with the Board that had not first been presented to the agency.  Leon
Rodgers, Jr., GSBCA 14678-TRAV, 99-1 BCA   30,376, at 150,156; Steve Resch,
GSBCA 14526-RELO (Mar. 26, 1998).  However, in the absence of a statute requiring
exhaustion of remedies, application of a rule like this one is a matter of judicial discretion. 
Rodgers; Communications Workers of America v. American Telephone & Telegraph Co.,
40 F.3d 426, 432 (D.C. Cir. 1994).  Further, where a litigant can demonstrate that resort to
administrative remedies would be futile because of the certainty of an adverse decision,
exhaustion of administrative remedies will be excused.  Id.; see Fallick v. Nationwide Mutual
Insurance Co., 162 F.3d 410, 419 (6th Cir. 1998).  As we recognized in Leon Rodgers, it is
appropriate to apply this doctrine to Board Rule 401.  Here, it is apparent that if claimant
were to file a formal claim with the agency, it would be denied on the same ground
articulated by the agency to claimant and in its correspondence to the Board.  Rodgers,
99-1 BCA at 150,156.

Relocation Expenses

     The law is clear that when an agency orders an employee to change permanent duty
stations in the interest of the Government, and the employee then incurs relocation expenses
of a kind for which reimbursement is authorized, the employee should be reimbursed for
those expenses.  Joint Travel Regulations (JTR) C4102; Michael D. Addington,
GSBCA 14092-RELO, 97-2 BCA   29,152.  Even if the orders are later rescinded, due to
circumstances beyond an employee's control, expenses which were incurred while they were
in effect are reimbursable so long as the employee incurred the expenses  in good faith and
in anticipation of the transfer before the transfer was canceled.  JTR C3054; Michael J.
Halpin, GSBCA 14509-RELO, 98-1 BCA   29,730; Addington, 97-2 BCA at 144,990;
Orville H. Myers, 57 Comp. Gen. 447 (1978); cf. Maryann Zekunde, GSBCA 15317-RELO,
00-2 BCA   31,008 (no reimbursement when a transfer is canceled for personal reasons --
because claimant accepted a job in the local area);  John F. Pattie, B-197609 (Oct. 20, 1980)
(no reimbursement where travel orders were not canceled for official reasons, but for
employee's personal preference).  If the employee's duty station did not change as a result of
the canceled transfer, then  reimbursement is allowed as if the transfer had been completed
and the employee had been retransferred to his former duty station.  William B. Storch,
B-226282 (July 20, 1987); Orville H. Myers.  

     The agency contends that claimant's decision to remain in Germany, accept a
promotion there, and decline a transfer was a matter of his personal preference and not due
to "circumstances beyond the employee's control" or for official reasons.  The Comptroller
General, our predecessor tribunal for resolving relocation claims, has recognized that the
determination as to whether an employee's declination of a transfer was for a reason beyond
his control is primarily a matter for the agency and will not be disturbed unless it is clearly
erroneous, arbitrary, or capricious.  Murell C. Hoage, 63 Comp. Gen. 187 (1984); see also 
Bart J. Dubinsky, GSBCA 14546-RELO, 98-2 BCA   29,840 (authority to determine whether
transfer is in the interest of the Government rests primarily with the agency and agency
determination will not be overturned unless arbitrary, capricious, or clearly erroneous).  Here,
the agency did not require or request that claimant accept the promotion rather than transfer. 
Nor did the agency commit any error when it initially transferred claimant.  Cf. Jeffrey
Meyer, GSBCA 14138-RELO, 98-1 BCA   29,597 (reimbursement allowed where transfer
cancelled because agency selected nonqualified employee for position).  As such, claimant
has not demonstrated that the agency erred or acted arbitrarily in determining that his election
to stay in Germany and accept a promotion was his personal choice and not due to
circumstances beyond his control.

     In Maryann Zekunde, 00-2 BCA at 153,179, we held that an employee could not be
reimbursed for real estate expenses incurred in selling her home pursuant to orders
transferring her and authorizing such reimbursement -- even where the agency had
encouraged employees to seek employment locally and claimant had secured a local job.  The
Board reasoned:  "[claimant's] transfer was not canceled by the Government.  She decided,
for personal reasons, to accept a job in her local area rather than transfer with her unit.  The
fact that [claimant's] personal decision may also have benefitted the Government does not
change its essential character."  Id.  Similarly, in this case, claimant's decision to remain in
Germany was his own -- his transfer was not canceled at the behest of the Government and
he is not entitled to the reimbursement he seeks.

     We note in passing that claimant could not have recovered for the rental car even if
his transfer had been canceled by the Government.  There is no authority for reimbursement
for a rental car while awaiting a privately owned vehicle's arrival.  JTR C11000 note; Donny
Flores, GSBCA 15072-RELO, 00-1 BCA   30,648; Jacqueline Williams,
GSBCA 15026-RELO, 99-2 BCA   30,538; Thomas S. Ward, GSBCA 13825-RELO,
97-1 BCA   28,955; cf. Andrew Parr, GSBCA 14058-RELO, 98-1 BCA   29,426
(reimbursement for rental car prohibited during temporary quarters subsistence expenses
period); John G. Shirley, B-234861 (July 11, 1989) (reimbursement for rental car disallowed
when employee transferred from South Carolina to Hawaii and rented car while awaiting the
arrival of his privately owned vehicle, even though his relocation authorization permitted use
of a rental vehicle).

                             Decision

     The claim is denied.



                                   ________________________________
                                   MARY ELLEN COSTER WILLIAMS
                                   Board Judge