B-174986, JUL 14, 1972
Highlights
WAS FAMILIAR WITH. THE PRIOR DECISION IS AFFIRMED. WE ARE WITHOUT AUTHORITY TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY. THE AUTHORIZATION OF A TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE IS A TEMPORARY EXPEDIENT AND SHOULD BE GEARED TO THE TIME NECESSARY FOR AN EMPLOYEE TO COMPLETE ARRANGEMENTS FOR PERMANENT QUARTERS. THE PARTICULAR CIRCUMSTANCES OF THE EMPLOYEE INVOLVED ARE TO BE CONSIDERED. SUBPARAGRAPH C 8251 OF JTR PROVIDES IN PART AS FOLLOWS: "*** THESE TIME LIMITS ARE MAXIMUM PERIODS. THE TEMPORARY QUARTERS WITH SUBSISTENCE EXPENSES SHOULD BE AUTHORIZED ONLY AS AN EXPEDIENT AND ONLY FOR THE PERIOD OF TIME THAT OCCUPANCY OF TEMPORARY QUARTERS IS CONSIDERED NECESSARY. THE TRAVEL APPROVING OFFICIAL OF THE DEPARTMENT OF DEFENSE COMPONENT CONCERNED WILL INSURE THAT THE NECESSITY AND LENGTH OF TIME FOR WHICH TEMPORARY QUARTERS SUBSISTENCE EXPENSES ARE AUTHORIZED ARE JUSTIFIED.".
B-174986, JUL 14, 1972
CIVILIAN EMPLOYEE - TEMPORARY QUARTERS - AUTHORIZATION DENIAL OF REQUEST BY FRED FEWELL FOR A REVIEW OF DECISION, B-174986, MAY 11, 1972, INSOFAR AS IT RELATES TO HIS ENTITLEMENT TO TEMPORARY QUARTERS SUBSISTENCE EXPENSES IN ADDITION TO THE 30 DAYS AUTHORIZED AND APPROVED IN CONNECTION WITH A PERMANENT CHANGE OF STATION FROM HONOLULU, HI., TO PINE BLUFF, ARK. IT CANNOT BE SAID THAT THE DEPARTMENT OF THE ARMY ACTED ARBITRARILY IN DENYING THE REQUEST FOR EXTENSION OF THE PERIOD OF TEMPORARY QUARTERS SUBSISTENCE SINCE MR. FEWELL DID OWN A RESIDENCE IN LITTLE ROCK, ARK., AND WAS FAMILIAR WITH, AND HAD LIVED IN, THE PINE BLUFF AREA ITSELF. ACCORDINGLY, THE PRIOR DECISION IS AFFIRMED.
TO MR. FRED FEWELL:
WE REFER TO YOUR LETTER OF MAY 15, 1972, REQUESTING A REVIEW OF OUR DECISION B-174986, MAY 11, 1972, INSOFAR AS IT RELATES TO YOUR ENTITLEMENT TO TEMPORARY QUARTERS SUBSISTENCE EXPENSES IN ADDITION TO THE 30 DAYS AUTHORIZED AND APPROVED IN CONNECTION WITH YOUR PERMANENT CHANGE OF STATION FROM HONOLULU, HAWAII, TO PINE BLUFF, ARKANSAS.
WE POINTED OUT IN THAT DECISION THAT THE PERTINENT PROVISION OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, GIVES THE EMPLOYING AGENCY DISCRETION TO AUTHORIZE AN ADDITIONAL PERIOD OF TEMPORARY QUARTERS SUBSISTENCE AND, ASSUMING THE PROPER EXERCISE OF THAT DISCRETION, WE ARE WITHOUT AUTHORITY TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY.
YOU NOW ASK US TO SUBSTITUTE OUR JUDGMENT FOR THAT OF YOUR AGENCY, AS, IN YOUR OPINION, THE AGENCY ACTED ARBITRARILY AND CAPRICIOUSLY WITHOUT JUSTIFICATION.
THE AUTHORIZATION OF A TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE IS A TEMPORARY EXPEDIENT AND SHOULD BE GEARED TO THE TIME NECESSARY FOR AN EMPLOYEE TO COMPLETE ARRANGEMENTS FOR PERMANENT QUARTERS. THE REGULATION MAKES CLEAR THAT IN DETERMINING THE PERIOD OF TEMPORARY QUARTERS SUBSISTENCE, THE PARTICULAR CIRCUMSTANCES OF THE EMPLOYEE INVOLVED ARE TO BE CONSIDERED. FOR INSTANCE, WHERE AN EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO LOOK FOR QUARTERS BEFORE THE TRANSFER, OR WHERE HE HAS BEEN ON TEMPORARY DUTY AT THE NEW STATION PRIOR TO THE TRANSFER, THE PERIOD OF TEMPORARY QUARTERS MAY BE REDUCED OR AVOIDED ALTOGETHER. SUBPARAGRAPH C 8251 OF JTR PROVIDES IN PART AS FOLLOWS:
"*** THESE TIME LIMITS ARE MAXIMUM PERIODS. THE NORMAL LENGTH OF NECESSARY OCCUPANCY OF TEMPORARY QUARTERS SHOULD AVERAGE MUCH LESS THAN THE MAXIMUM PERIODS. CONSEQUENTLY, THE TEMPORARY QUARTERS WITH SUBSISTENCE EXPENSES SHOULD BE AUTHORIZED ONLY AS AN EXPEDIENT AND ONLY FOR THE PERIOD OF TIME THAT OCCUPANCY OF TEMPORARY QUARTERS IS CONSIDERED NECESSARY. AS A GENERAL POLICY, THE PERIOD FOR TEMPORARY QUARTERS SHOULD BE REDUCED OR AVOIDED IF A ROUND TRIP TO SEEK PERMANENT RESIDENCE QUARTERS HAS BEEN MADE OR IF, AS A RESULT OF EXTENDED TEMPORARY DUTY AT THE NEW DUTY STATION OR OTHER CIRCUMSTANCES (FOR EXAMPLE IF THE FAMILY DOES NOT EXPECT TO MOVE UNTIL SOME TIME AFTER THE EMPLOYEE'S TRANSFER) THE EMPLOYEE HAS HAD ADEQUATE OPPORTUNITY TO COMPLETE ARRANGEMENTS FOR PERMANENT QUARTERS. THE TRAVEL APPROVING OFFICIAL OF THE DEPARTMENT OF DEFENSE COMPONENT CONCERNED WILL INSURE THAT THE NECESSITY AND LENGTH OF TIME FOR WHICH TEMPORARY QUARTERS SUBSISTENCE EXPENSES ARE AUTHORIZED ARE JUSTIFIED."
THE DEPARTMENT OF THE ARMY HAS STATED THAT SINCE YOU OWNED A HOME IN LITTLE ROCK, IT WAS CONSIDERED FEASIBLE FOR YOU TO MAKE ARRANGEMENTS PRIOR TO YOUR RETURN TO OCCUPY THAT HOME AND THAT IN ANY EVENT 30 DAYS WAS CONSIDERED SUFFICIENT FOR YOU AND YOUR FAMILY TO MOVE INTO PERMANENT QUARTERS.
WE DO NOT VIEW THIS DETERMINATION AS ARBITRARY OR CAPRICIOUS. THE FACT THAT YOU OWN A HOME IN THE AREA, OCCUPANCY OF WHICH, IF PRUDENT, YOU SHOULD HAVE BEEN ABLE TO ARRANGE, IS CERTAINLY A FACTOR WHICH MIGHT PROPERLY HAVE BEEN TAKEN INTO CONSIDERATION IN DETERMINING THE PERIOD OF TEMPORARY QUARTERS SUBSISTENCE, NOTWITHSTANDING THAT FOR REASONS OF YOUR OWN YOU UNDERTOOK TO PURCHASE ANOTHER HOME IN THE AREA. THIS ASIDE, THE FACT THAT YOU HAD LIVED IN AND WERE FAMILIAR WITH THE PINE BLUFF AREA WOULD IN ITSELF PROVIDE SUFFICIENT BASIS FOR THE AGENCY'S REFUSAL TO AUTHORIZE OR APPROVE A PERIOD IN ADDITION TO THE 30 DAYS TEMPORARY QUARTERS SUBSISTENCE YOU WERE AUTHORIZED.
OUR DECISION OF MAY 11, 1972, IS THEREFORE AFFIRMED.