B-235329, Aug 25, 1989

B-235329: Aug 25, 1989

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CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility DIGEST: A transferred employee's claim for temporary quarters subsistence expenses is denied for the period when he continued to occupy his residence at the old duty station after residence had been sold. Perry - Temporary Quarters Subsistence Expenses: This decision is in response to an appeal from our Claims Group settlement Z-2865903. Perry's claim for temporary quarters subsistence expenses is for the rent and other subsistence costs incurred between August 1 and August 27. OPINION The reimbursement of subsistence expenses while occupying temporary quarters incident to a permanent change of station is governed by the Federal Travel Regulations (FTR).

B-235329, Aug 25, 1989

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility DIGEST: A transferred employee's claim for temporary quarters subsistence expenses is denied for the period when he continued to occupy his residence at the old duty station after residence had been sold.

Drew A. Perry - Temporary Quarters Subsistence Expenses:

This decision is in response to an appeal from our Claims Group settlement Z-2865903, Nov. 30, 1988, which denied an employee's claim for temporary quarters subsistence expenses incurred incident to a transfer. For the following reasons, we sustain the denial of this claim.

BACKGROUND

Mr. Drew A. Perry, an employee of the U.S. Army Corps of Engineers, received transfer orders on February 2, 1987, to report to his new station at Sacramento, California, on July 15, 1987. Pursuant to these orders, Mr. Perry sold his old home in Salinas, California, on May 20, 1987, but agreed with the buyers to rent his old residence until August 1, 1987. Mr. Perry also signed a purchase contract for a new residence in Sacramento which would not be completed until August 28, 1987.

Because of an unforeseen medical emergency involving his child, Mr. Perry did not vacate his old house by August 1 as planned. Instead, with the consent of the buyers, Mr. Perry remained in his old residence in Salinas until August 27, and paid rent to the buyers for the period between August 1 and August 27 totalling $1,350.

Mr. Perry's claim for temporary quarters subsistence expenses is for the rent and other subsistence costs incurred between August 1 and August 27. Both the Corps of Engineers and our Claims Group denied his claim, citing previous decisions by our Office that generally deny reimbursement of such expenses incurred by employees who continue to occupy their own residences.

Mr. Perry argues that he intended to vacate his old residence on August 1, 1987, but that the emotional trauma of his child's illness made a relocation to temporary quarters at Sacramento too trying for the family to undertake. Mr. Perry also argues that the sales contract and lease for his old residence, as well as his travel orders, provided clear objective evidence of his intent at the time of the sale of his old residence to vacate that residence by August 1.

OPINION

The reimbursement of subsistence expenses while occupying temporary quarters incident to a permanent change of station is governed by the Federal Travel Regulations (FTR), chapter 2, part 5, which state, in paragraph 2-5.2(c), that "temporary quarters refers to lodging obtained from private or commercial sources for the purpose of temporary occupancy after vacating the residence occupied when the transfer was authorized." /1/ Our decisions have held that an employee vacates a residence if the employee ceases to occupy it for the purposes intended. Patsy S. Ricard, 67 Comp.Gen. 285 (1988); George L. Daves, 65 Comp.Gen. 342 (1986). If the employee continues to occupy a residence as the customary or usual place of abode, the employee has not vacated the residence. Charles C. Werner, B-185696, May 28, 1976.

In certain circumstances, however, we have allowed temporary quarters reimbursement for periods during which the employee continued to reside in the residence that the employee had occupied when the transfer was authorized. For example, we have allowed reimbursement where an employee was unable to obtain temporary housing at either the old or new duty station and therefore was forced to rent his former residence from the purchaser. Herbert Dodd, Jr., B-177965, Mar. 27, 1973. We have also held that an employee who packed all of his household goods but was forced to remain at his old residence 5 additional days because the moving van broke down had constructively vacated his former residence and could be reimbursed for the period he rented his former residence. Beverly L. Driver, B-181032, Aug. 19, 1974. See also Quinea D. Minton, B-218886, Mar. 24, 1986.

In other decisions, we have permitted reimbursement where the employee and the family left but then subsequently returned to the old residence. Our focus in these cases has been on the presence of objective evidence that the employee intended to vacate the old residence and that the employee's return to the old residence was unanticipated. Daves, supra; Patrick T. Schluck, B-202243, Aug. 14, 1981; Werner, supra.

The case before us does not fall within the exceptions cited above. Obviously, the family medical emergency was a serious and unanticipated event which made the employee's transfer to a new duty station much more difficult, but it fails to meet the criterion that the employee must have actually or constructively vacated the residence in order to qualify for temporary quarters reimbursement. See Werner, supra.

Accordingly, we conclude that the employee may not be reimbursed for temporary quarters subsistence expenses for the period he continued to occupy his residence at his old duty station.

/1/ FTR, para. 2-5.2(c) (Supp. 4, Aug. 23, 1982), incorp. by ref. 41 C.F.R. Sec. 101-7.003 (1987).