Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
                                                    
 
                             March 9, 2001
                                                    
 
 
                            GSBCA 15516-RELO
 
 
                   In the Matter of JOHN K. MIDDAUGH
 
 
        John K. Middaugh, Douglasville, GA, Claimant.
 
        Maj.  Matthew W. Parsons, JA, Command Judge Advocate, United
   States  Army Reserve  Command,  Fort  McCoy,  WI,  appearing  for
   Department of the Army.
 
   DANIELS, Board Judge (Chairman).
 
        John K. Middaugh, a  civilian employee of the Department  of
   the Army, has requested that  an exception be made to application
   of a law  which denies him reimbursement of  expenses he incurred
   shortly after relocating from Washington State to Japan.
 
        Mr. Middaugh's transfer  occurred in September 1996.  At the
   time,  he  had recently  placed  his  wife,  who had  suffered  a
   thoroughly debilitating stroke from which recovery was said to be
   impossible, in a health care  facility.  The Middaughs had agreed
   to divorce,  and the final  decree dissolving their  marriage was
   issued  in October.   The  decree stipulated  that their  home in
   Washington State be  immediately listed for  sale, with half  the
   proceeds of sale going  to Mr. Middaugh and the  other half going
   to  a  trust established  for  the  benefit  of the  former  Mrs.
   Middaugh.  The  home was sold in December 1996,  allegedly at far
   below market value.
 
        The  Army transferred Mr.  Middaugh again in  December 1999,
   this time from  Japan to Georgia.  During 2000, he asked the Army
   to  reimburse him  for the  expenses he  incurred in  selling his
   house in Washington  State, and the agency  denied reimbursement.
   The Army based its determination on a provision of the Department
   of  Defense's  Joint  Travel  Regulations  (JTR),  which  states,
   "Expenses  incident to a sale . . . transaction that occurs prior
   to the employee being officially notified (ordinarily in the form
   of PCS  [permanent  change of  station] orders)  that instead  of
   returning  to  the  former nonforeign  area  PDS  [permanent duty
   station],  reassignment/transfer   is  to   be  to   a  different
   nonforeign PDS may  not be reimbursed."  JTR  C14000-C.4 (Apr. 1,
   2000).
 
 
        Mr.  Middaugh maintains, in submitting his claim to us, that
   because   the  sale  of   his  former  residence   resulted  from
   extraordinary  circumstances which  were not contemplated  by the
   authors  of  the  regulatory  provision  cited  by the  Army,  an
   exception to that rule should be made for him.  He asks that  the
   Government  reimburse him  for half  of the  cost he  incurred in
   selling  the house  and, if  possible, that  the Government  also
   reimburse the trust for  the benefit of  his former wife for  the
   half of the sales costs paid by that trust.
 
        As  Mr. Middaugh recognizes, the  law on this matter clearly
   prohibits reimbursement.  The JTR  provision cited by the Army is
   based on statute.  Section  5724a(d)(3) of title 5, United States
   Code,  states  that  reimbursement  of  real  estate  transaction
   expenses  incurred by  an  employee  transferred  to  a  location
   outside the United States "shall not be allowed for any sale  . .
   . that occurs prior to official  notification that the employee's
   return to the United States would be to an official station other
   than the official station from which the employee was transferred
   when assigned to the post of duty  outside the United States."  5
   U.S.C.     5724a(d)(3)  (Supp.  V  1999).    In  substance,  this
   provision has been in effect since 1987.  Robert J. Wright, GSBCA
   15399-RELO (Mar. 7, 2001).   We have consistently applied the law
   to  prohibit reimbursement of expenses associated with home sales
   which occurred prior to the necessary notification.  E.g., Edward
   J.  Nanartowich,  GSBCA  15237-RELO (Feb.  2,  2001);  Marilyn A.
   Whitworth, GSBCA 15174-RELO,  00-1 BCA   30,811 (and  cases cited
   therein).
 
        This Board has been delegated authority by the Administrator
   of  General Services to settle claims involving expenses incurred
   by   federal   civilian  employees   for   official   travel  and
   transportation, and for relocation expenses incident to transfers
   of official duty  station.  See 31 U.S.C.    3702(a)(3) (Supp. IV
   1998).  Our  authority extends,  however, only  to settlement  in
   accordance with  existing statutes and  regulations.  We  have no
   authority to exercise equitable powers to grant claims which must
   be denied under  those laws.  Jean M.  Everest, GSBCA 13804-RELO,
   97-2 BCA   29,308;  Joseph A. Curtis, GSBCA  13823-RELO, 97-1 BCA
     28,935; William Archilla, GSBCA 13878-RELO, 97-1 BCA   28,799.
 
        Two avenues are open to Mr. Middaugh for relief which is not
   permissible under existing  law.  One is  Congressional enactment
   of  special legislation.   The Administrator of  General Services
   may recommend such action to the Congress under authority granted
   in 31 U.S.C.   3702(d).  Everest; Curtis; Archilla.  
 
        The other avenue open to  Mr. Middaugh is application to the
   General  Services   Administration's  (GSA's)   Deputy  Associate
   Administrator  for  the  Office  of  Transportation  and Personal
   Property.  Section 5 of  the Travel and Transportation Reform Act
   of 1998,  Pub. L.  No. 105-264, 112  Stat. 2350,  2354-56 (1998),
   authorizes the  Administrator  of General  Services to  establish
   test  programs, each  for  a  period  not  exceeding  twenty-four
   months,  "to  enhance  cost savings  or  other  efficiencies that
   accrue  to   the  Government"   regarding  employee   travel  and
   relocation expenses.   Under such  a program, "an agency  may pay
   through the proper disbursing official . . . any necessary travel
   [or  relocation]  expenses  in  lieu  of  any  payment  otherwise
   authorized or required under  [relevant statute]."  On April  28,
   2000, the Administrator established test programs which allow the
   specified Deputy  Associate GSA  Administrator, "in  consultation
   with the Departments of Defense (DOD) and State (State), to grant
   administrative relief for travel and relocation claims where such
   relief   should  be   granted  based   on   legal  or   equitable
   considerations,  but  is  prohibited by  statutory  or regulatory
   restrictions."
 
 
        After we  explained to Mr.  Middaugh that we  cannot provide
   him  the exceptional  relief  he  is seeking,  he  asked that  we
   forward his claim to someone who has  that ability.  We therefore
   dismiss the case and transfer the claim to GSA's Deputy Associate
   Administrator  for the  Office  of  Transportation  and  Personal
   Property, for such  action as she may deem  appropriate -- either
   under the  relocation expense test  program or for  suggestion to
   the  Administrator as  to a  recommendation  that Congress  enact
   special legislation.
 
                                      _________________________ 
                                      STEPHEN M. DANIELS
                                      Board Judge