B-240342, Mar 1, 1991, 70 Comp.Gen. 321

B-240342: Mar 1, 1991

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Was required to perform several days temporary duty away from that station. An employee's claim which was settled prior to Thibault may not be overturned on appeal based on the new rules announced in Thibault. Billie Yardman Moxley - Temporary Quarters Subsistence Expense Allowance While Away on Temporary Duty: The principal issue in this case is whether the decision in Paul G. That settlement disallowed her claim for temporary quarters subsistence expenses for a period she was away from her new duty station and receiving temporary duty allowances. Moxley was sent away on temporary duty. She was paid per diem expenses while in this travel status. Moxley had already been paid subsistence expenses for the same days for which she was claiming temporary quarters expenses.

B-240342, Mar 1, 1991, 70 Comp.Gen. 321

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Interruption - Actual expenses - Temporary duty Paul G. Thibault, 69 Comp.Gen. 72 (1989), held that a transferred employee who, while occupying temporary quarters at his new duty station, was required to perform several days temporary duty away from that station, may be reimbursed the costs of retaining his temporary quarters during his absence in addition to per diem he received for his temporary duty if the agency determines that he acted reasonably in retaining those quarters. Thibault applies prospectively only since it represented a substantial departure from prior decisions. Therefore, an employee's claim which was settled prior to Thibault may not be overturned on appeal based on the new rules announced in Thibault.

Billie Yardman Moxley - Temporary Quarters Subsistence Expense Allowance While Away on Temporary Duty:

The principal issue in this case is whether the decision in Paul G. Thibault, 69 Comp.Gen. 72 (1989), should be applied retroactively or prospectively only. The issue arises as a result of Ms. Billie Yardman Moxley's reliance on the Thibault decision in her appeal of our Claims Group's settlement of her claim, Z-2861086, on February 2, 1988. That settlement disallowed her claim for temporary quarters subsistence expenses for a period she was away from her new duty station and receiving temporary duty allowances. For the following reasons, we sustain the Claims Group's settlement.

BACKGROUND

In October 1982, Ms. Moxley, an employee of the Immigration and Naturalization Service, transferred from Atlanta, Georgia to Dallas, Texas, where she rented temporary quarters on a weekly basis. During November 1-3, 1982, Ms. Moxley was sent away on temporary duty, and she was paid per diem expenses while in this travel status. Ms. Moxley then claimed $76.63 for the temporary quarters costs during that same period, since she had already rented the quarters before being notified of the temporary duty travel.

Both the agency and our Claims Group disallowed Ms. Moxley's claim for the temporary quarters costs on the basis that the Federal Travel Regulations (FTR) specifically prohibit allowances which duplicate, in whole or in part, payments received under other laws or regulations covering similar costs, /1/ and Ms. Moxley had already been paid subsistence expenses for the same days for which she was claiming temporary quarters expenses. The disallowance of her claim on that basis was in accord with previous decisions of our Office in similar cases.

Ms. Moxley appeals the disallowance of her claim on the basis of our decision in Paul G. Thibault, 69 Comp.Gen. 72, supra, decided November 9, 1989.

OPINION

Prior to Thibault, we had held that where an employee is reimbursed for per diem while on temporary duty away from the official duty station, the employee may not be similarly reimbursed for temporary quarters expenses at the official duty station for those same days. 47 Comp.Gen. 84 (1967); B-175499, Apr. 21, 1972; B-172739, June 14, 1971. However, in Thibault we held that if the agency concludes that the employee acted reasonably in retaining temporary quarters at the official duty station while away on temporary duty, these expenses would be reimbursable as temporary quarters expenses since the employee actually incurred separate lodging costs at both locations. We specifically overruled the prior cases holding otherwise.

Although we did not specifically address the issue in the decision, we believe that the holding in Thibault should not be applied retroactively. Our decision with respect to the payment of both allowances represented a substantial departure from a long-held position which has been justifiably relied upon by certifying and disbursing officers. Therefore, the holding will be applied prospectively only to cases pending on or arising after the date of the decision, November 9, 1989. See Prescott A. Berry, 60 Comp.Gen. 285 (1981); George W. Lay, 56 Comp.Gen. 561 (1977).

Accordingly, since Ms. Moxley's claim was settled, and therefore no longer pending at the time Thibault was decided, November 9, 1989, it may not be reopened and allowed on the basis of the new rules set forth in Thibault.

/1/ FTR, para. 2-5.2i, incorp. by ref. 41 C.F.R. Sec. 101-7.003 (1982).