B-202004.OM, OCT 14, 1981

B-202004.OM, OCT 14, 1981

SUBJECT: MYRNA J. (MERWIN) MCCOY - REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES B-202004-O.M. DIGEST: EMPLOYEE WHO, INCIDENT TO PERMANENT CHANGE OF STATION FROM FRESNO TO SAN FRANCISCO, CALIFORNIA, RENTED AN UNFURNISHED EFFICIENCY APARTMENT IS ENTITLED TO REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES. EVEN THOUGH THE EMPLOYEE REMAINED IN THE APARTMENT FOR 9 MONTHS, THE EMPLOYEE'S INTENT AT THE TIME SHE MOVED INTO THE APARTMENT WAS NOT TO MAKE IT A PERMANENT RESIDENCE. THAT INTENT IS SUBSTANTIATED BY SEVERAL CONSIDERATIONS, INCLUDING A LETTER FROM THE RESIDENT MANAGER STATING THAT THE EMPLOYEE HAD REQUESTED THE NEXT AVAILABLE ONE BEDROOM APARTMENT.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

THE SUBJECT FILE Z-2827930 IS RETURNED HEREWITH. THE CLAIM FOR REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES (TQSE) SHOULD BE ALLOWED. MS. MCCOY HAS SATISFACTORILY PROVEN THAT AT THE TIME SHE RENTED THE QUARTERS IN QUESTION, HER INTENT WAS TO REMAIN ON A TEMPORARY BASIS.

THE RECORD DISCLOSES THAT ON OCTOBER 1, 1979, MS. MCCOY TRANSFERRED FROM HER POSITION WITH THE DEPARTMENT OF THE TREASURY IN FRESNO, CALIFORNIA, TO A NEW POSITION IN SAN FRANCISCO. MS. MCCOY MOVED INTO A STUDIO APARTMENT IN THE DOWNTOWN AREA LOCATED CONVENIENTLY NEAR HER PLACE OF WORK AND REMAINED IN THOSE QUARTERS FOR A PERIOD OF 9 MONTHS. THE DEPARTMENT OF THE TREASURY QUESTIONED THE VOUCHER SUBMITTED BY MS. MCCOY CLAIMING $507.42 FOR SUBSISTENCE EXPENSES FOR TEMPORARY QUARTERS FROM OCTOBER 1 TO OCTOBER 30, 1979, AND SUBMITTED THE VOUCHER TO THIS OFFICE FOR A DECISION AS TO THE PROPRIETY OF REIMBURSEMENT. IN A SETTLEMENT DATED JANUARY 6, 1981, THE CLAIMS GROUP DENIED THE CLAIM ON THE BASIS THAT THERE WAS NO INDICATION THAT SHE INTENDED TO USE THE APARTMENT FOR ANYTHING OTHER THAN A PERMANENT RESIDENCE. IT WAS NOTED IN THE SETTLEMENT THAT HOUSEHOLD GOODS WERE MOVED INTO THE APARTMENT, AND THAT THERE WAS NO DOCUMENTARY EVIDENCE THAT MS. MCCOY SOUGHT ANOTHER PLACE TO LIVE.

THE AUTHORITY FOR THE PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS IS CONTAINED IN 5 U.S.C. SEC. 5724A(3) AND THE IMPLEMENTING REGULATIONS, FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7) (MAY 1973). PARAGRAPH 2-5.2C OF THE FTR PROVIDES:

"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."

WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE TYPE OF RESIDENCE OCCUPIED (I.E., PERMANENT OR TEMPORARY) IS BASED UPON THE INTENT OF THE EMPLOYEE AT THE TIME SHE MOVES INTO THE QUARTERS. SEE DOUGLAS D. MASON, B-196284, AUGUST 14, 1980, AND CASES CITED THEREIN. SUCH A DETERMINATION SHOULD BE MADE IN CONSIDERATION OF THE FOLLOWING FACTORS: DURATION OF THE LEASE, MOVEMENT OF HOUSEHOLD EFFECTS INTO THE QUARTERS, TYPE OF QUARTERS, EXPRESSIONS OF INTENT, ATTEMPTS TO SECURE A PERMANENT DWELLING, AND THE LENGTH OF TIME THE EMPLOYEE OCCUPIES THE QUARTERS. SEE HARRISON J. LANE, B-183829, JANUARY 2, 1976, AND CASES CITED THEREIN.

IN THE PRESENT CASE, THE FACTS INDICATE THAT, AT THE TIME MS. MCCOY MOVED INTO THE APARTMENT, SHE INTENDED TO OCCUPY IT ONLY UNTIL MORE SUITABLE QUARTERS COULD BE ARRANGED. THE RECORD SATISFACTORILY EXPLAINS THE CIRCUMSTANCES THAT RESULTED IN HER SUBSEQUENT DECISION TO REMAIN IN THE STUDIO APARTMENT PENDING HER RE-TRANSFER TO FRESNO. FIRST, MS. MCCOY HAS STATED THAT WHEN SHE TOOK THE APARTMENT HER INTENT WAS TO USE IT AS A BASE FROM WHICH TO LOOK FOR PERMANENT QUARTERS. THAT STATEMENT IS CORROBORATED BY THE STATEMENT OF AN EMPLOYEE OF THE FRESNO OFFICE WHO ASSISTED MS. MCCOY IN HER SEARCH FOR QUARTERS IN SAN FRANCISCO, AND BY THE FACT THAT THE LEASE WAS ON A MONTH-TO-MONTH BASIS. SECONDLY, THE ONLY HOUSEHOLD GOODS MOVED INTO THE APARTMENT WERE: A BED, CHAIR, SEWING MACHINE, CHEST OF DRAWERS, CORNER CABINET, AND DINETTE SET; A SHIPMENT OF LESS THAN 500 POUNDS. WE DO NOT BELIEVE THAT MOVEMENT OF THESE MINIMAL FURNISHINGS INTO AN UNFURNISHED EFFICIENCY APARTMENT IS NECESSARILY EVIDENCE OF AN INTENT TO ESTABLISH PERMANENT RESIDENCY. THIRDLY, AND MOST IMPORTANTLY, A STATEMENT SIGNED BY THE RESIDENT MANAGER OF THE APARTMENT BUILDING INDICATES THAT SHORTLY AFTER HER ARRIVAL MS. MCCOY REQUESTED THAT SHE BE GIVEN THE NEXT ONE-BEDROOM APARTMENT AVAILABLE. SEE ROBERT L. DONELSON, B-183239, JUNE 25, 1975, WHERE IT WAS HELD THAT LETTERS FROM THE EMPLOYEE'S LANDLADY AND REALTOR SHOWING THAT THE DWELLING WAS RENTED ON A TEMPORARY BASIS WERE SUFFICIENT EVIDENCE OF AN INTENT NOT TO OCCUPY THE RENTED QUARTERS ON A PERMANENT BASIS. THUS, EVEN THOUGH THE ARRANGEMENT NEVER CAME TO FRUITION, MS. MCCOY HAD CLEARLY INDICATED HER DESIRE TO MOVE INTO MORE SUITABLE LIVING QUARTERS WHEN SUCH QUARTERS BECAME AVAILABLE. THUS, EVEN THOUGH SUBSEQUENT EVENTS MAY HAVE FRUSTRATED HER INTENT TO FIND OTHER QUARTERS, THE RECORD SATISFACTORILY ESTABLISHES THAT SHE INTENDED TO OCCUPY THE STUDIO APARTMENT ON A TEMPORARY BASIS.

IN LIGHT OF THE FOREGOING CIRCUMSTANCES, WE CONCLUDE THAT MS. MCCOY HAS ESTABLISHED HER CLAIM FOR REIMBURSEMENT OF TQSE.