May
9, 2008
CBCA
1127-RELO
In the Matter of DON W.
SCHUNEMAN
Don W. Schuneman, Little Rock,
AR, Claimant.
Randall M. Christopherson,
Director, Denver Finance Center, Small Business Administration, Denver, CO,
appearing for Small Business Administration.
WALTERS,
Board Judge.
Claimant, Don W. Schuneman, is
a civilian employee of the Small Business Administration (SBA). Mr. Schuneman seeks reimbursement in the
amount of $5179.25 for home acquisition expenses in connection with his
purchase of a home in the Little Rock, Arkansas, area. SBA had rejected Mr. Schuneman=s request and directed Mr. Schuneman to our
predecessor board in considerting these matters, the General Services Board of
Contract Appeals (GSBCA). Mr. Schuneman
filed an appeal, by letter to the GSBCA dated March 18, 2008. The GSBCA having been consolidated into this
Board as of January 6, 2007, the matter was docketed by this Board. For the reasons set forth below, we find that
the claim was properly denied.
Factual Background
Effective February 2, 2004,
Mr. Schuneman accepted a directed reassignment from Wichita, Kansas, to the SBA=s newly established Guaranty Purchase/Liquidation
Center in Herndon, Virginia. Relocation
expenses for this reassignment and, in particular, real estate expenses, were
authorized by a Change of Station Approval Request and Travel Authorization
form dated January 21, 2004. Mr.
Schuneman states that he used all categories of authorized relocation expenses
in conjunction with that permanent change of station (PCS) except for expenses
for acquisition of a new home in the Herndon, Virginia, area. He explains that he Awas not in a position to purchase a home in Herndon@ immediately, because he had realized a substantially
reduced price for the home that he had sold in Wichita and faced an Ainflated market@ for
housing in Herndon. Mr. Schuneman asked
for and received a one year extension, from March 2006 through March 31, 2007,
for the previously authorized home acquisition benefits. It is not clear from the record whether,
prior to March 2006, a similar extension was either required for or sought by
Mr. Schuneman.
In December 2006, Mr.
Schuneman expressed interest in an internal SBA job announcement for a position
with the SBA Commercial Loan Service Center in Little Rock, Arkansas (CLSC-LR)
and applied for that position. The
position had been advertised as a GS-12 position, which would have represented
a reduction in grade for Mr. Schuneman, who had been serving at a GS-13 level
at Herndon. The advertisement for the
Little Rock position also specifically stated: ARELOCATION
EXPENSES WILL NOT BE PAID.@
Mr. Schuneman avers that, on
January 19, 2007, his supervisor, John A. Miller, SBA=s Assistant Administrator for Financial Programs
Operations (who oversaw all the loan processing centers, including those at
both Herndon and Little Rock) was in Herndon and asked to speak to Mr.
Schuneman. According to Mr. Schuneman,
Mr. Miller advised him at that time that SBA Ahad
decided to laterally transfer me to the CLSC-LR,@ i.e.,
that the transfer would be at his GS-13 grade level, but that the agency Acould not provide me with relocation benefits.@
In his description of this
January 2007 conversation, and the reported words of Mr. Miller that Athey@(i.e., SBA) Adecided
to . . . transfer me,@ Mr. Schuneman seems to imply that his transfer to
Little Rock was a directed transfer, which had been determined by SBA to be in
the best interests of the Government.
Further in this connection, Mr. Schuneman describes how Little Rock was
performing with thirty employees the same quantity of work being handled by SBA=s Fresno CLSC with forty employees. In this regard, he relates that Mr. Miller
advised him during their conversation that Little Rock was Afalling behind@ in its
work and that it Awill require additional staffing.@
In terms of Mr. Miller=s statement regarding the unavailability of relocation
benefits for the transfer to Little Rock, Mr. Schuneman states that, during
their January 19, 2007, conversation, he explained to Mr. Miller that he had
requested and had received a one year extension on the home acquisition benefit
associated with his earlier transfer from Wichita to Herndon and would need a
second extension. He further states that
Mr. Miller Aasked me to request the extension and copy him on the
request, which I did January 26, 2007.@ Mr. Miller, he says, promised that Ahe would approve the extension.@ Subsequently,
Mr. Schuneman received the second extension of that benefit through March 31,
2008.
Regarding the January 2007
conversation, SBA contends that what Mr. Miller had offered Mr. Schuneman was
the possibility of a Avoluntary reassignment to Little Rock@ as a
GS-13 and that, in this context, Mr. Miller had made plain that relocation
benefits would not be available to him.
SBA does not directly deny the allegation that Mr. Miller had asked Mr. Schuneman to
request the second extension of the home acquisition benefit for his earlier
transfer to Herndon. What it emphasizes,
though, is that the request for that extension made no mention of the
conversation and Mr. Schuneman=s agreement to the transfer to Little Rock -- and thus
said nothing of Mr. Miller=s further purported agreement that the earlier unused
home acquisition benefit could be used by Mr. Schuneman in conjunction with the
Little Rock transfer.
Moreover, the documentary
record appears to contradict the notion that the transfer to Little Rock was
directed by SBA or that Mr. Miller or anyone from SBA ever formally authorized
the use of the earlier benefit for purposes of the Little Rock transfer. More specifically, SBA provides an e-mail
message from Mr. Schuneman to Mr. Miller dated June 18, 2007,
stating: APlease accept this email as my request for a voluntary
re-assignment to the CLSC in Little Rock, AR at my current grade level
of GS-13.@ (Emphasis
added). In addition, SBA furnishes a
copy of Mr. Miller=s e-mail message dated June 26, 2007, to Mr. Grady
Hedgespeth, Mr. Miller=s manager, forwarding the paperwork for the Avoluntary reassignment@ and
stating: AIt is a voluntary reassignment, meaning no
relocation expense for the Agency . . . .@ (Emphasis added). Mr. Schuneman has not provided the Board with
any documentation that would establish the reassignment as anything other than
a voluntary one or any written authorization from SBA that the unused home acquisition
benefit from the earlier Wichita-Herndon transfer was available for use in
connection with the Herndon-Little Rock reassignment.
Discussion
The GSBCA, in Linda L. Shaw,
GSBCA 14977-RELO, 99-2 BCA & 30,494, faced a remarkably similar situation, where a
civilian employee of the Department of Defense (DoD) had been transferred from
Beale Air Force Base (AFB) in California to a post in Omaha, Nebraska, and soon
thereafter opted on her own to relocate to another position with the agency in
Denver, Colorado. Although the DoD there
had authorized a real estate acquisition benefit for the purchase of a home in
Omaha, a benefit that the claimant had not used, it did not similarly authorize
a home acquisition benefit for her in Denver and refused to reimburse her costs
of buying a residence near Denver. The
GSBCA sustained the agency=s decision in this regard, observing:
We think that DoD=s
understanding is correct. Under statute,
an agency is obliged to reimburse an employee for costs of relocation,
including real estate transaction expenses, only if the employee is Atransferred in the interest of the Government.@ 5 U.S.C. ' 5724(a), 5724a(a) (1994). AWhen a
transfer is made primarily for the convenience or benefit of an employee, . . .
or at his request,@ on the other hand, these costs Amay not be allowed or paid from Government funds.@ Id. '
5724(h). Ms. Shaw relocated twice --
once to Omaha, at the direction of the agency, and the second time to Denver,
at her own option. The first statutory
provision applied to the first move and the second provision to the second
move. Because the second relocation was
made primarily for Ms. Shaw=s benefit, the agency may not pay for the costs
resulting from that move. Once Ms. Shaw
began the job in Denver, she had no need for a residence in Omaha, and DoD=s commitment to pay for the expenses associated with
the purchase of such a house was extinguished.
99-2 BCA at 150,612; accord
Robert D. Sheldon, GSBCA 15391-RELO, 01-1 BCA & 31,180 (2000). In its 2001 opinion in Norman R. Evans,
GSBCA 15403-RELO, 01-2 BCA & 31,459, the GSBCA, citing to Shaw, explains
that, whenever a federal employee relocates twice, each transfer and Aany benefits which may be associated with it@ must be Aconsidered
separately.@ In other
words, the two transfers and their attendant benefits may not be viewed as Amerged.@
Evans, 01-2 BCA at 155,330.
Here, where
the record reveals that Mr. Schuneman=s second
transfer to Little Rock was voluntary, i.e., primarily for the employee=s benefit and not a directed transfer Ain the interest of the Government,@ payment for a home acquisition at that location would
not be authorized. Moreover, as the
GSBCA made clear in Shaw, the home acquisition benefit from the earlier
transfer to Herndon could not be used for the subsequent transfer to Little
Rock. The transfers and attendant
benefits must be Aconsidered separately.@ Evans.
The agency=s commitment to pay a Herndon home acquisition benefit
was Aextinguished@ once
Mr. Schuneman left Herndon and assumed his new position in Little Rock. Shaw.
Decision
The agency determination is
affirmed and the claim denied.
______________________________
RICHARD C. WALTERS
Board Judge
