B-181022, NOV 4, 1974

B-181022, NOV 4, 1974

WHEN CLAIMANT, FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS, SIGNS A 1-YEAR APARTMENT LEASE AT HIS NEW DUTY STATION AND EXPRESSES ONLY INDEFINITE AND GENERAL INTENT TO MOVE TO OTHER QUARTERS, TEMPORARY QUARTERS ALLOWANCE IS NOT JUSTIFIED, EVEN THOUGH EMPLOYEE MAY HAVE LIVED IN SCANTILY FURNISHED ROOM, AND AWAY FROM HIS FAMILY FOR A PERIOD OF TIME.

STATION FROM MONMOUTH, NEW JERSEY TO ARLINGTON, VIRGINIA.

IT APPEARS THAT MR. BENNER AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION (GSA) SPLIT HIS WORK WEEK BETWEEN THE STATIONS IN NEW JERSEY AND VIRGINIA FOR APPROXIMATELY FIVE WEEKS PRIOR TO HIS OFFICIAL STARTING DATE AT HIS NEW STATION, OCTOBER 15, 1973. DURING THAT TIME HE WAS UNABLE TO SELL HIS HOME IN NEW JERSEY, BUT WAS ABLE TO LOCATE A TOWNHOUSE IN SPRINGFIELD, VIRGINIA, WHICH HE RENTED FOR A ONE YEAR PERIOD BEGINNING OCTOBER 15, 1973. THIS APPARENTLY WAS DONE ON THE ADVICE OF OFFICIALS WITHIN HIS AGENCY, WHO FELT THAT THIS ARRANGEMENT WOULD QUALIFY AS TEMPORARY QUARTERS UNTIL MR. BENNER WAS ABLE TO FIND A SUITABLE RESIDENCE TO PURCHASE.

MR. BENNER MOVED INTO THE TOWNHOUSE ON OCTOBER 15, 1973, FURNISHING ONLY ONE BEDROOM WITH NEWLY ACQUIRED FURNISHINGS. HIS FAMILY AND FURNITURE REMAINED IN NEW JERSEY, WHERE HIS FAMILY ATTEMPTED TO SELL THEIR OLD RESIDENCE. ON NOVEMBER 9, 1973, THE OLD RESIDENCE WAS SOLD, AND ON NOVEMBER 12, 1973, MR. BENNER'S FAMILY JOINED HIM IN VIRGINIA. THEIR FURNISHINGS WERE TRANSPORTED TO THE NEW RESIDENCE ON NOVEMBER 13, 1973, WHERE THE BENNERS PRESENTLY RESIDE.

SECTION 2-5.2E OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) MAY 1973, AUTHORIZES REIMBURSEMENT FOR SUBSISTENCE EXPENSES INCURRED BY EMPLOYEE'S FAMILY AT THE OLD OFFICIAL DUTY STATION FOR LODGING OBTAINED TEMPORARILY AFTER THEY HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME OF THE EMPLOYEE'S TRANSFER. SINCE THE RECORD INDICATES THAT THE EMPLOYEE'S FAMILY DID NOT VACATE THE RESIDENCE AT THE OLD OFFICIAL DUTY STATION UNTIL APPROXIMATELY NOVEMBER 12, 1973, UNDER THE ABOVE CITED REGULATION THE EMPLOYEE WOULD BE PRECLUDED FROM BEING REIMBURSED FOR SUBSISTENCE EXPENSES OF HIS FAMILY. B-162802, MARCH 24, 1969.

IN A LETTER OF MARCH 18, 1973, MR. BENNER EXPLAINED:

"*** THE TOWNHOUSE WAS LOOKED UPON, BY MY WIFE AND I, AS TEMPORARY. NOTHING MORE THAN THAT. WE REALLY WANTED TO BY, BUT TIME NOR CIRCUMSTANCES DID NOT PERMIT IT."

SINCE "TEMPORARY QUARTERS" IS NOT DEFINED EXPLICITLY EITHER IN THE APPLICABLE STATUTE 5 U.S.C. 5724AA)3 OR IMPLEMENTING REGULATIONS CONTAINED IN FPMR AS DIFFERING FACT SITUATIONS MAKE PRECISE REGULATION DIFFICULT, A CASE BY CASE DETERMINATION MUST BE MADE. 47 COMP. GEN. 84 (1967). HAVE CONSISTENTLY HELD THAT THE INTENT OF THE EMPLOYEE DURING THE PERIOD IN QUESTION IS THE PRIMARY CONSIDERATION IN DECIDING WHETHER QUARTERS OCCUPIED WERE TEMPORARY OR PERMANENT. B-162531, APRIL 27, 1970. OTHER FACTS, SUCH AS AMOUNT OF FURNISHINGS IN THE NEW HOME, TERM OF A LEASE, AND TYPE OF QUARTERS OCCUPIED MAY BE CONSIDERED IN DETERMINING THE EMPLOYEE'S INTENT. B-173326, OCTOBER 17, 1971. HOWEVER, NO SINGLE FACTOR BY ITSELF, IS NECESSARILY DETERMINATIVE.

SECTION 2-5.2 OF FPMR PROVIDES IN PERTINENT PART AS FOLLOWS:

"(C) *** THE TERM 'TEMPORARY QUARTERS' REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED.

"(D) *** TEMPORARY QUARTERS SHOULD BE REGARDED AS AN EXPEDIENT TO BE USED ONLY IF OR FOR AS LONG AS NECESSARY UNTIL THE EMPLOYEE CONCERNED CAN MOVE INTO PERMANENT RESIDENCE QUARTERS."

ACCORDING TO THE INFORMATION FURNISHED MR. BENNER WAS IN VIRGINIA PERIODICALLY FOR A FIVE WEEK PERIOD BEFORE HIS PERMANENT RELOCATION. HIS FAMILY DID NOT MOVE TO VIRGINIA UNTIL ALMOST A MONTH AFTER MR. BENNER'S MOVE. THESE CIRCUMSTANCES DEMONSTRATE AMPLE OPPORTUNITY FOR THE EMPLOYEE TO HAVE FOUND PERMANENT QUARTERS. ALSO MR. BENNER'S FAMILY MOVED INTO THE TOWNHOUSE WITH THEIR FURNITURE AFTER SELLING THEIR HOUSE IN NEW JERSEY AND ACCORDING TO THE RECORD OCCUPY THE SAME TOWNHOUSE. THE TOWNHOUSE DID NOT CONSTITUTE TRANSIENT LODGING BUT WAS HOUSING NORMALLY OCCUPIED BY INDIVIDUALS FOR AN INDEFINITE PERIOD AND ARE CONSIDERED PERMANENT TYPE QUARTERS. MOREOVER, THE FACT THAT MR. BENNER MAY HAVE INTENDED AT SOMETIME IN THE FUTURE TO PURCHASE A HOME IS TOO INDEFINITE TO SUPPORT A CONCLUSION THAT THE QUARTERS OCCUPIED WERE IN FACT TEMPORARY. B-172228, APRIL 29, 1971.

ALTHOUGH MR. BENNER CLAIMS THAT HE WAS ADVISED BY OFFICIALS OF THE GSA THAT HIS ARRANGEMENTS DID CONSTITUTE TEMPORARY QUARTERS, NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS GRANTED BY STATUTE AND REGULATION BY MISINFORMING THE INDIVIDUALS SO ENTITLED. B-175499, APRIL 21, 1972.

ON THE BASIS OF THE FACTS AS PRESENTED, WE MUST CONCLUDE THAT MR. BENNER MOVED INTO HIS RESIDENCE ON A PERMANENT BASIS BEGINNING ON OCTOBER 15, 1973, HIS OFFICIAL REPORTING DATE. THEREFORE, HIS CLAIM FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS MAY NOT BE ALLOWED.