B-237464, Jun 25, 1990

B-237464, Jun 25, 1990

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Determination DIGEST: A transferred employee, whose orders authorized 60 days temporary quarters subsistence expenses, moved into temporary quarters at his old duty station after receiving approval to do so from his supervisor and station manager based on leasing agent's request to vacate leased residence early and other circumstances. We find his vacating of residence and occupancy of temporary quarters was reasonably necessary and his claim for 30 days temporary quarters subsistence expenses is allowed.

Joseph A. Carter - Temporary quarters Subsistence Expenses - Necessity of Vacating Old Residence:

This decision is in response to a letter from Mr. Joseph A. Carter appealing our Claims Group settlement Z-2866182, May 16, 1989, which disallowed his claim for temporary quarters subsistence expenses incident to a transfer. The settlement is reversed for the following reasons.

BACKGROUND

Mr. Carter, an employee of the Federal Aviation Administration (FAA, San Antonio, Texas, received transfer orders dated May 13, 1987, to report to his new duty station at San Angelo, Texas, on July 20, 1987. Among other things, the orders authorized 60 days temporary quarters subsistence expenses. Agency officials informed Mr. Carter that he could not be released from his position in San Antonio before July 18, 1987.

Mr. Carter and his family occupied a residence in San Antonio under a 1- year lease covering the period through December 31, 1987. Upon receiving his orders, Mr. Carter promptly gave the leasing agent notice of his intent to vacate his residence early because of his employment transfer. The early termination provisions of his lease authorized termination of the lease for this reason provided Mr. Carter gave the landlord at least 60 days notice, which he did. After receiving Mr. Carter's notice, the leasing agent requested him to vacate by June 15, 1987, to enable the house to be marketed by July 1, 1987.

Mr. Carter states that he thereupon advised his supervisor, his station manager, and the secretary handling his travel paperwork concerning the situation and inquired whether he could move into temporary quarters in San Antonio in light of the request to vacate by June 15. Mr. Carter advised them that the leasing agent was holding his security deposit, that the property owner was in bankruptcy, and that he was on notice that the property could be sold at any time with unknown consequences to his lease agreement. Mr. Carter reports that all 3 concurred that he could use his TQSE authorization to move into temporary quarters beginning June 15, 1987. /1/ With their endorsement, he then vacated his leased residence and moved his family into temporary quarters in San Antonio for the period of June 16 to July 15, 1987. Mr. Carter also states that he asked the Supervisor, Regional Accounting Operations Section, if there was any problem with moving into temporary quarters in San Antonio, and was told that it was "no problem as long as it met the requirements."

The Regional Accounting Operations Section subsequently disallowed Mr. Carter's claim for 30 days temporary quarters, stating that there appeared to be no justifiable reason for vacating the permanent residence at the old station, and that he had already signed a purchase contract on June 15, 1987, for a house at his new duty station, with an option to lease until closing.

OPINION

The expenses of occupying temporary quarter for employees transferred in the interest of the government from one official station to another are authorized under sections 5724(a) and 5724a(a)(3) of title 5, United States Code (1988). Under the implementing regulations in chapter 2, part 5, of the Federal Travel Regulations (FTR), /2/ a transferred employee may be reimbursed subsistence expenses for an initial period of up to 60 days while occupying temporary quarters at either of the old or new duty station after vacating the old residence.

The regulations provide in FTR para. 2-5.1 (Supp. 10, March 13, 1987) that the agency heads are responsible for administering this authority "reasonably and equitably so that the necessity for allowing subsistence expenses and the amount of time an employee ... uses temporary quarters is justified in connection with the employee's transfer to a new official station." /3/ The FTR provides that the "administrative determination as to whether the occupancy of temporary quarters is necessary and the length of time for occupancy shall be made on an individual-case basis."

For reimbursement to be allowed for the expenses of occupying temporary quarters, therefore, a determination must be made on an individual basis in consideration of all the surrounding circumstances that they were necessarily occupied. William D. Dudley, 67 Comp.Gen. 310 (1988). Ordinarily this is a matter for determination by the employing agency, but our Office may make such determination predicated on the facts presented to us by the agency and the employee. William D. Dudley, supra, and cases cited therein.

In this case, the FAA did not make a final determination. Instead the FAA Manager, payroll and Travel Systems has forwarded to our Office a request from the Manager, Accounting Branch requesting a determination as to whether the temporary quarters was necessary in view of the facts presented.

We believe the local FAA officials acted reasonably under the circumstances in approving Mr. Carter's use of temporary quarters at his old duty station from June 16-July 15, 1987, and that Mr. Carter was justified in relying on that approval to incur such expenses. His travel orders authorized up to 60 days temporary quarters subsistence expenses and Mr. Carter sought and received the approval of his supervisors and local agency travel personnel before occupying temporary quarters, and he limited his occupancy to 30 days.

The Regional Accounting Operations Section's disallowance of TQSE on Mr. Carter's voucher was based on two premises. The regional office found no justifiable reasons for vacating the permanent residence, and found that Mr. Carter had already signed a purchase contract with lease option and could have moved into his new residence in time to avoid temporary quarters at his old duty station.

As to the first premise, Mr. Carter presented justifiable reasons in advance to local agency officials and to the regional supervisor of accounting operations. The local officials approved the move and the regional supervisor did not object.

As to the second premise, it is true that Mr. Carter entered into a purchase contract dated June 15, 1987. The accompanying option to lease, however, which was initially scheduled to begin July 1, 1987, had to be amended to begin July 15, 1987, because the new residence was not available until that date. Thus, he could not have moved into his new house until July 15 in any event. Further, as indicated above, Mr. Carter could not be released from his position in San Antonio before July 18, 1987, so that even if permanent quarters could have been made available before that date at the new duty station, it would have been of no relevance. The regional office ignored or was unaware of these facts in reaching its disallowance.

Therefore, based on all the facts and circumstances, we find that Mr. Carter's occupancy of temporary quarters for 30 days at his old duty station was reasonably necessary. William D. Dudley, 67 Comp.Gen. 310, at 312, supra. Neither the authorizing orders nor the prior approval by agency officials were in conflict with applicable laws, regulations, or agency policy. Mr. Carter's claim for temporary quarters subsistence expenses for that period is allowable. See Joyce M. Kingfisher, B-189580, Mar. 31, 1978.

/1/ We have informally contacted the station manager, and he has verified that he gave such advice to Mr. Carter.

/2/ Incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1988).

/3/In John E. Robbins, B-215055, Feb. 7, 1985, we stated that the FTR requires "that the employee ... occupy temporary quarters for reasons directly related to the employee's transfer." See also John D. Pearson, B-234343, Sept. 14, 1989. Although the quoted requirement is not inconsistent with the FTR, it is not in fact explicitly so stated in the FTR. Therefore, to avoid confusion as to the standard to be applied, we shall henceforth use the FTR standard and not the standard quoted from Robbins which is hereby clarified to that extent. This also requires that the following cases be clarified: John D. Pearson, B-234343, supra; Richard T. Bible, B-208302, Sept. 27, 1982; Henry J Kessler, B-185376, July 23, 1976; and B-179556, May 14, 1974.