B-177965, MAR 27, 1973

B-177965: Mar 27, 1973

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THEN HE MAY BE PAID A TEMPORARY QUARTERS ALLOWANCE EVEN THOUGH HE WAS COMPELLED TO RENT HIS FORMER RESIDENCE FROM ITS PURCHASER UNTIL HE COULD LOCATE A PERMANENT RESIDENCE AT HIS NEW DUTY STATION. JR.: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 1. DODD'S TRANSFER WAS EFFECTIVE ON FEBRUARY 15. DURING WHICH TIME HIS RESIDENCE WAS ON THE OPEN MARKET. WAS SOLD. DODD WAS UNABLE TO PURCHASE A NEW RESIDENCE IN ATLANTA UNTIL JUNE 29. BECAUSE HE WAS IN NEED OF VETERANS ADMINISTRATION FINANCING WHICH REQUIRES. IN BOTH ATLANTA AND COLUMBIA BUT WAS UNABLE TO DO SO BECAUSE OF HIS RACE. DURING THAT SAME PERIOD IT WAS NECESSARY FOR MR. PROVIDES AS FOLLOWS: (3) TEMPORARY QUARTERS REFERS TO LODGING OBTAINED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED.

B-177965, MAR 27, 1973

CIVILIAN PAY - TEMPORARY QUARTERS ALLOWANCE - RENTING OF OLD RESIDENCE FROM ITS PURCHASER DECISION ALLOWING THE CLAIM OF HERBERT DODD, JR., AN EMPLOYEE OF THE MANPOWER ADMINISTRATION, U.S. DEPT. OF LABOR, FOR TEMPORARY QUARTERS ALLOWANCE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION FROM COLUMBIA, S.C. TO ATLANTA, GA. IF AN EMPLOYEE DEMONSTRATED HIS INTENT TO VACATE HIS RESIDENCE AT HIS OLD STATION BUT FAILED TO SECURE ANY SUITABLE TEMPORARY HOUSING FOR HIS FAMILY THROUGH NO FAULT OF HIS OWN, THEN HE MAY BE PAID A TEMPORARY QUARTERS ALLOWANCE EVEN THOUGH HE WAS COMPELLED TO RENT HIS FORMER RESIDENCE FROM ITS PURCHASER UNTIL HE COULD LOCATE A PERMANENT RESIDENCE AT HIS NEW DUTY STATION. OMB CIRCULAR NO. A-56, SECTION 2.5B(3).

TO MR. WILLIAM U. NORWOOD, JR.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 1, 1973, REFERENCE 4MGS4(AS-15GEN, WITH ENCLOSURES, WHICH WE VIEW AS REQUESTING OUR DECISION AS TO WHETHER A CLAIM BY MR. HERBERT DODD, JR., AN EMPLOYEE OF YOUR AGENCY, FOR TEMPORARY QUARTERS ALLOWANCE FOR THE PERIOD OF MAY 30, 1971, TO JUNE 28, 1971, IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION FROM COLUMBIA, SOUTH CAROLINA, TO ATLANTA, GEORGIA, MAY BE CERTIFIED FOR PAYMENT.

YOU STATE THAT MR. DODD'S TRANSFER WAS EFFECTIVE ON FEBRUARY 15, 1971. HIS FAMILY, HOWEVER, REMAINED IN COLUMBIA DURING THE MONTHS OF FEBRUARY, MARCH, APRIL, AND MAY 1971, DURING WHICH TIME HIS RESIDENCE WAS ON THE OPEN MARKET. ON MAY 28, 1971, THE RESIDENCE, WHICH HAD BEEN FINANCED BY THE VETERANS ADMINISTRATION, WAS SOLD. MR. DODD WAS UNABLE TO PURCHASE A NEW RESIDENCE IN ATLANTA UNTIL JUNE 29, 1971, BECAUSE HE WAS IN NEED OF VETERANS ADMINISTRATION FINANCING WHICH REQUIRES, AMONG OTHER THINGS, THAT THE FORMER RESIDENCE BE SOLD AND THAT NEW ELIGIBILITY CERTIFICATES BE ISSUED AND SENT TO THE LENDING INSTITUTION. YOU STATE FURTHER THAT MR. DODD TRIED TO SECURE SUITABLE TEMPORARY QUARTERS FOR THE PERIOD OF MAY 30 TO JUNE 28, 1971, IN BOTH ATLANTA AND COLUMBIA BUT WAS UNABLE TO DO SO BECAUSE OF HIS RACE. CONSEQUENTLY, THE EMPLOYEE HAD TO PREVAIL UPON THE PURCHASER OF HIS FORMER RESIDENCE TO ALLOW HIS FAMILY TO OCCUPY THE HOUSE BY RENTING IT ON A MONTH-TO-MONTH BASIS. DURING THAT SAME PERIOD IT WAS NECESSARY FOR MR. DODD TO RENT A SMALL APARTMENT IN ATLANTA.

SECTION 2.5B(3) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, PROVIDES AS FOLLOWS:

(3) TEMPORARY QUARTERS REFERS TO LODGING OBTAINED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED.

WE HELD IN B-162680, NOVEMBER 3, 1967, THAT WHERE THE EMPLOYEE'S IMMEDIATE FAMILY HAD NOT VACATED THEIR RESIDENCE QUARTERS AT THE OLD DUTY STATION, THEY WERE NOT RESIDING IN TEMPORARY QUARTERS AS DEFINED BY THE REGULATION. HOWEVER, WE HAVE CONSISTENTLY GIVEN GREAT WEIGHT TO THE INTENT OF THE EMPLOYEE WHEN CONSTRUING SECTION 2.5B. B-176367, AUGUST 4, 1972; B-168649, JANUARY 20, 1970; B-162531, APRIL 27, 1970. HERE THE EMPLOYEE IN GOOD FAITH ATTEMPTED TO SECURE SUCH TEMPORARY HOUSING, BUT FAILED TO DO SO THROUGH NO FAULT OF HIS OWN AND WAS COMPELLED TO RENT HIS FORMER RESIDENCE FROM THE PURCHASER UNTIL HE COULD LOCATE A PERMANENT RESIDENCE AT HIS NEW DUTY STATION. UNDER SUCH CIRCUMSTANCES WE BELIEVE THAT THE INTENT TO VACATE SHOULD CONTROL AND THAT SUCH INTENT CONSTITUTES A CONSTRUCTIVE VACATION WITHIN THE MEANING OF SECTION 2.5B. WITHOUT A SHOWING OF THE NECESSARY INTENT, AN EMPLOYEE AND/OR HIS FAMILY WHO REMAIN IN THEIR FORMER RESIDENCE AFTER THE EMPLOYEE'S TRANSFER CANNOT BE CONSIDERED TO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED, AND CANNOT BE ALLOWED A TEMPORARY QUARTERS ALLOWANCE. B-162680, NOVEMBER 3, 1967, SUPRA.

UPON THE FACTS OF THIS CASE, OUR OPINION IS THAT THE EMPLOYEE DEMONSTRATED HIS INTENT TO VACATE HIS FORMER RESIDENCE AND THAT HIS FAMILY IS TO BE REGARDED AS LIVING IN TEMPORARY QUARTERS WITHIN THE MEANING OF THE REGULATION.

ACCORDINGLY, THE VOUCHER, WITH ACCOMPANYING PAPERS, IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE PROPER.