B-234451, May 10, 1989, 68 Comp.Gen. 419
B-234451: May 10, 1989
The decision to grant an extension is at the discretion of the agency and the agency acted correctly in denying an extension when it found that the employee's request for an extension did not demonstrate compelling reasons beyond his control. The determination to grant an extension is for the agency. Our Office would not object to such determination unless it is found to be arbitrary or capricious. Meyer - Extension of Period for Temporary Quarters and Residence Transaction: This matter is before us as a request for a decision submitted by Gary B. There are two questions for our opinion: 1) whether the agency correctly denied a 1-year extension of the initial 2-year period which Mr. Meyer was transferred from Tallahassee.
B-234451, May 10, 1989, 68 Comp.Gen. 419
Civilian Personnel - Relocation 813 MS 156 - Temporary quarters - Actual subsistence expenses - Eligibility - Extension To justify an extension of temporary quarters subsistence expenses, there must be a need for an extension due to the circumstances beyond the employee's control and occurring within the first 60 days of temporary quarters. The decision to grant an extension is at the discretion of the agency and the agency acted correctly in denying an extension when it found that the employee's request for an extension did not demonstrate compelling reasons beyond his control. Civilian Personnel - Relocation - Temporary quarters - Actual subsistence expenses - Eligibility - Extension An agency properly exercised its discretion by denying a request for a 1- year extension of the 2-year period in which an employee must complete his real estate transaction for purposes of relocation expense reimbursement. The determination to grant an extension is for the agency, and our Office would not object to such determination unless it is found to be arbitrary or capricious.
Robert H. Meyer - Extension of Period for Temporary Quarters and Residence Transaction:
This matter is before us as a request for a decision submitted by Gary B. Logsdon, Director, Division of Finance, Region IX, Department of Health and Human Services (HHS), concerning the relocation expense claims of Robert H. Meyer, an HHS employee. There are two questions for our opinion: 1) whether the agency correctly denied a 1-year extension of the initial 2-year period which Mr. Meyer has to sell his house at his old station and purchase one at his new station; and 2) whether the agency correctly denied to Mr. Meyer an extension of the period for temporary quarters subsistence expenses. We find that the agency has broad discretion under the applicable regulations to deny both an extension of the residence transaction period and an extension of the period for temporary quarters, and we find no fault with the agency's actions in this case.
Mr. Robert H. Meyer was transferred from Tallahassee, Florida, to Honolulu, Hawaii, and he reported to the Honolulu station on January 5, 1988. His wife remained in Florida to sell their home, and she did not arrive in Honolulu until May 16, 1988. Mr. Meyer delayed the beginning of his temporary quarters until June 1, 1988, and he claimed 60 days through July 30, 1988.
Mr. Meyer requested an extension of the period of temporary quarters, but the agency denied the request and stated that Mr. Meyer had sufficient time in which to locate a permanent residence and that his circumstances did not satisfy the regulatory requirements for an extension of time. October 1988, Mr. Meyer requested a 1-year extension to the 2-year period in which to claim real estate expenses reimbursement. The agency denied this request, stating that Mr. Meyer had at that time more than a year left to arrange for his new home and that a request for an extension was premature. Mr. Meyer subsequently retired on December 31, 1988, and this was later cited by the agency as additional evidence to support its contention that Mr. Meyer now has more time to resolve his permanent residence situation.
Mr. Meyer states that he and his wife intend their new house in Honolulu to be their retirement home and, therefore, the site selection and construction processes are necessarily more time-consuming since they want to ensure complete satisfaction with the result. Consequently, according to Mr. Meyer, completion of this "dream" home might not occur until after January 5, 1990, the end of the original 2 year residence transaction period.
The first issue is whether the agency acted correctly in denying an extension of temporary quarters. The regulations governing temporary quarters are contained in the Federal Travel Regulations (FTR) (Supp. 10, March 13, 1983), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1987).
Under FTR, para. 2-5.2a(2), an agency may authorize payment for an additional period of up to 60 days if the appropriate agency official determines that there are compelling reasons for the continued occupancy of temporary quarters and there is a demonstrated need for the continued occupancy of temporary quarters due to circumstances beyond the employee's control which have occurred during the initial 60 day period. Examples of compelling reasons provided in the FTR include delay of delivery of household goods due to strikes, weather and acts of God, inability to occupy a new residence due to unanticipated problems such as delays in settlement of a new residence, or sudden illness or death of the employee or a family member.
In the present case, the agency acted within its discretion when it found that no circumstances beyond Mr. Meyer's control occurred during the initial period of temporary quarters to justify an extension of the period. Mr. Meyer has failed to provide any evidence of events beyond his control which would cause us to find that the agency's decision was unfounded. On the contrary, his reasons for requesting an extension are based upon circumstances entirely within his own control. These reasons can be summarized as a lack of time to plan and construct what the Meyers consider their "dream" retirement home.
The second issue we must decide is whether the agency correctly denied Mr. Meyer's request for a 1-year extension of the initial 2-year residence transaction period. The reasons cited by Mr. Meyer for this extension are the same as those he has cited above for the extension of the period of temporary quarters. The agency believes that Mr. Meyer's request for an extension is premature since, at the time of the request, he had approximately 1 year and 3 months left in the original 2-year period in which to complete construction of his home.
An agency may grant a 1-year extension of the period in which an employee must complete his residence transaction for purposes of reimbursement of related expenses if the agency makes:
"... a determination that extenuating circumstances, acceptable to the agency concerned, have prevented the employee from completing the sale and purchase or lease termination transactions in the initial time frame and that the residence transactions are reasonably related to the transfer of official station. FTR, para. 2-6.1e(2)(c) (Supp. 4, Aug. 23, 1982).
We have consistently held that the determination by an agency to grant an extension in accordance with this provision will not be disturbed unless found to be arbitrary or capricious. See Simon Mouer, B-195264, Feb. 12, 1980, and Ronald F. Houska, B-191087, Mar. 14, 1978, which interpreted an earlier version of this regulation.
We cannot say that the agency's action in this case was arbitrary or capricious. At the time Mr. Meyer requested a 1-year extension, he had approximately 1 year and 3 months left in the original 2-year period. Nothing in the record indicates that there are circumstances which warrant a 1-year extension. Moreover, the agency does not seem to rule out the possibility that a more timely request by Mr. Meyer based upon discrete extenuating circumstances might be granted.
Accordingly, we sustain the agency's determinations to deny an extension of the period of temporary quarters and an extension of the period to complete the real estate settlement.