October 11,
2007
CBCA 866-RELO
In the Matter of EVAN F. MELTZER
Evan F.
Meltzer, Madison, MS, Claimant.
Elizabeth
Rodriguez, Systems and Procedures Analyst, Department of Veterans Affairs,
Washington, DC, appearing for Department of Veterans Affairs.
FENNESSY, Board Judge.
In August
2007, claimant, Evan F. Meltzer, a doctor of podiatric medicine, was authorized
a permanent change of station (PCS) from his position with the Department of Health and Human Services
(HHS), Blackfeet Reservation, Browning, Montana, to the Department of Veterans
Affairs (VA) in Jackson, Mississippi. He
asks that we review the decision of the VA that, in connection with his PCS, he
is not eligible for entry into the VA=s
guaranteed home sale program for the sale of his home in Texas. The agency denied Dr. Meltzer=s request for participation in the program because the
house in Texas was not the residence from which Dr. Meltzer commuted to and
from the reservation nor did he occupy that residence at the time he received
notice of his transfer.
Background
For some time
prior to October 2005, Dr. Meltzer worked
as a podiatrist at Fort Hood, Texas, pursuant to a contract with the
Department of the Army. He lived with
his disabled wife in a residence in nearby in Harker Heights, Texas. In October 2005, Dr. Meltzer accepted a
position as a new appointee with HHS to work for the Indian Health Service on
the 1.5 million acre Blackfeet Reservation in northwestern Montana. He signed a twelve-month service agreement
and was authorized to receive reimbursement of certain relocation
expenses. The authorization did not
provide for reimbursement of real estate transaction expenses.
One of the
requirements of Dr. Meltzer=s position at the reservation was that he live within
thirty minutes from his duty station.
Because Dr. Meltzer is not a Native American, he was not permitted to
purchase a home on the reservation. Consequently, he resided in rented
Government quarters on the hospital grounds.
Further, because Dr. Meltzer=s
wife is not a Native American, the
medical care she requires was not available to her on the reservation. The nearest locations off the reservation
where care was available was in cities over 100 miles away, a two-hour drive --
if the roads were open. Therefore, to be
near to required medical services, Mrs. Meltzer continued to reside in their
Texas residence while Dr. Meltzer worked in Montana.
After two years on the
Blackfeet Reservation, Dr. Meltzer accepted his current position with the VA in
order that he and his wife could reside together in a community with medical
resources nearby. He was authorized
$21,250 for reimbursement of real estate transaction expenses in connection
with the purchase of a home in Mississippi, but he was not authorized any
reimbursement of expenses in connection with the sale of a residence. As he had unsuccessfully attempted to sell
the Texas residence, Dr. Meltzer asked the VA to allow him to participate in
the guaranteed home sale aspect of the VA=s
relocation services program.
The VA denied Dr. Meltzer=s
request because he did not regularly commute from the Texas home to his duty
station in Montana and he did not occupy that home when he was notified of his
transfer from Montana to his new duty station in Mississippi.
Discussion
By statute,
when an employee is transferred in the interest of the Government, an agency is
required to pay the employee the expenses of the sale of his or her residence
at the old official duty station. 5
U.S.C. ' 5724a(d)(1). Pursuant to the Federal Travel Regulation
(FTR), which implements this statute, to be reimbursed for such real estate
transactions an employee must occupy the residence when he or she is notified
of the transfer. 41 CFR 302-11.5. In addition,
regulation requires that this be the residence from which the employee commutes
to and from work on a daily basis. 41 CFR 302-11.100; Charles
T. Oliver, GSBCA 16346-RELO, 04-1 BCA
& 32,614.
Dr. Meltzer does not dispute that his Texas
residence does not meet these eligibility requirements. His claim is that the VA should waive those
requirements pursuant to FTR 302-2.106.
That provision authorizes an agency head or designee to waive any statutory
or regulatory limitations for employees relocating from remote or isolated
locations when failure to do so would cause undue hardship on the
employee. Id. Dr.
Meltzer states that he will experience financial hardship if he is not allowed
to participate in the program because it will be difficult to support the
expense of a home in the Jackson, Mississippi, area if he cannot sell his home
in Texas.
The record
does not establish that a VA official with authority to waive the requirements
in question considered Dr. Meltzer=s request. According
to an e-mail message written by the VA=s deciding official, the waiver could only be granted by
the head of the agency (the Secretary) or his designee (the Assistant Secretary
for Management). There is no indication
in the record that the VA forwarded Dr. Meltzer=s request for a waiver to either of
those officials. In fact, e-mail
correspondence in the record indicates that a Aconsultant@ made the determination that Dr.
Meltzer could not participate in the guaranteed home sale program. Neither the VA=s e-mail message denying Dr.
Meltzer=s request nor the VA=s report to the Board addressed the
request for a waiver.
Dr. Meltzer
is entitled to have his request decided by the proper agency official. Accordingly, this matter is returned to the
agency for consideration by an authorized official of claimant=s request for a waiver. Robert G. Carrell II, GSBCA
16113-RELO, 03-2 BCA & 32,358.
_______________________________
EILEEN P. FENNESSY
Board Judge
The
guaranteed home sale program is authorized by statute and regulation.
5 U.S.C. ' 5724c (2000); 41 CFR 302-12.100 (2006). The policies for the VA=s guaranteed home sale program are set forth in VA OF
Bulletin 01GC3.01.
