In the Matter of STEPHEN F. FISCHER

January 9, 2008

CBCA 875-RELO

In the Matter of STEPHEN F. FISCHER

Stephen F. Fischer, San Diego, CA, Claimant.

Judy Hughes, Standards and Compliance, Finance Mission Area, Defense Finance and

Accounting Service, Columbus, OH, appearing for Department of Defense.

KULLBERG, Board Judge.

This case addresses the question of whether an employee who is transferred in a

permanent change of station (PCS) may receive storage in transit (SIT) of household goods

(HHG) at government expense after the 180-day period allowed under the Federal Travel

Regulation (FTR) and Joint Travel Regulations (JTR) ends. For the reasons stated below,

reimbursement for SIT after 180 days is only allowed under a limited exception where an

employee’s PCS move also involves temporary duty (TDY) in countries such as Iraq and

Afghanistan. That exception does not apply in this case, and this Board lacks the authority

to allow reimbursement due to other personal circumstances.

Background

Claimant, Mr. Stephen F. Fischer, an employee of the Department of the Navy, was

transferred in a permanent change of station (PCS) move from his previous place of

employment at Lakehurst, New Jersey, to Naval Air Station North Island, San Diego,

California. His reporting date was November 7, 2005. He was authorized a period of ninety

days for SIT. He was granted an extension of an additional ninety days. That 180-day period

ended on March 24, 2006, but Mr. Fischer contends that he continued to keep his household

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goods in storage after that date due to delays in selling his home and various marital and

health-related problems in his family. Continued storage after 180 days cost Mr. Fischer

$6500. Mr. Fischer was denied reimbursement for that storage cost by the Per Diem, Travel,

and Transportation Allowance Committee (PDTATAC).

Discussion

The PDTATAC properly followed the applicable travel regulations in denying Mr.

Fischer reimbursement for SIT in excess of 180 days. The FTR states the following:

Is there a time limit for the temporary storage of an authorized

HHG shipment?

The initial period of temporary storage at Government expense

shall not exceed 90 days in connection with any authorized

HHG shipment. The HHG may be placed in temporary storage

at origin, in transit, at destination, or any combination thereof.

However, upon your written request, an additional 90 days may

be authorized by the designated agency official. In no case may

the maximum time limit for temporary storage exceed 180 days.

41 CFR 302-7.8 (2005) (FTR 302-7.8). The Joint Travel Regulations (JTR), which are also

applicable, provide the following:

SIT (in connection with authorized HHG transportation) should

not exceed 90 days unless the employee requests (in writing) an

additional period, [not to exceed] 90 days, that is

authorized/approved by a Service/Defense Agency designated

official. If no additional storage is authorized/approved, the

employee is financially responsible for the additional storage

expense (FTR § 302-7.8).

JTR C5190-B.1. The only exception under the JTR that allows reimbursement for SIT

beyond the 180-day maximum is for “employees on a PCS to a new PDS with en route TDY

assignments to locations such as Iraq and Afghanistan.” Id. C5191. Mr. Fischer’s PCS move

did not involve those circumstances, and consequently, his reimbursement is limited to SIT

for no more than 180 days.

Mr. Fischer argues that the Board should waive the restrictions on reimbursement for

more than 180 days of SIT because his agency supports his request, and it has the funds to

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reimburse him due to the “uncontrollable” events related to his relocation. The General

Services Administration Board of Contract Appeals, which previously decided these

relocation claims, recognized the following:

[A]n agency may not confer power upon itself. It literally has

no power to act . . . unless and until Congress confers power

upon it . . . . 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.”).

Gary MacLeay, GSBCA 15394-RELO, 01-1 BCA ¶ 31,210, at 154,079 (2000). This Board’s

authority to reimburse relocation costs “is grounded in subchapter II of chapter 57 of title 5,

United States Code, and the regulations issued by the Administrator of General Services

(under express Congressional charge) to implement that statute.” Teresa M. Erickson,

GSBCA 15210-RELO, 00-1 BCA ¶ 30,900, at 152,473. “Those regulations have the force

of law and must be followed.” Id. Our authority extends no further. See Edward B. Giagni,

GSBCA 16972-RELO, 07-1 BCA ¶ 33,476 (2006). Regardless of whether officials within

Mr. Fischer’s agency would allow reimbursement and have the funds to do so, this Board can

only permit reimbursement for those amounts allowed under applicable statutes and

regulations.

Decision

Mr. Fischer’s claim is denied.

______________________

H. CHUCK KULLBERG

Board Judge