B-244197, May 12, 1992, 71 Comp.Gen. 389

B-244197: May 12, 1992

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Employee has burden of providing evidence of such intent which is satisfactory to agency. Agency's determination that evidence is insufficient will not be overturned unless it lacks any reasonable basis in the record and thus constitutes an abuse of discretion. Agency's determination in this case that employee failed to provide satisfactory evidence of intent to occupy permanent-type quarters only temporarily is not without basis in the record. Is affirmed. Temporary Quarters Subsistence Expenses: This decision is in response to a request from the Comptroller. We conclude the employee is not entitled to reimbursement. Was transferred to Miami. He and his family were initially authorized 60 days of temporary quarters occupancy.

B-244197, May 12, 1992, 71 Comp.Gen. 389

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility Federal Travel Regulations governing reimbursement of temporary quarters subsistence expenses (TQSE) grant agencies discretion to determine whether transferred employee who obtains permanent-type quarters at new duty station intends to occupy those quarters only on a temporary basis, so as to qualify for TQSE. Employee has burden of providing evidence of such intent which is satisfactory to agency. Agency's determination that evidence is insufficient will not be overturned unless it lacks any reasonable basis in the record and thus constitutes an abuse of discretion. Agency's determination in this case that employee failed to provide satisfactory evidence of intent to occupy permanent-type quarters only temporarily is not without basis in the record, and, therefore, is affirmed.

Richard A. Alschuler-- Temporary Quarters Subsistence Expenses:

This decision is in response to a request from the Comptroller, U.S. Customs Service, Department of the Treasury. /1/ It concerns the entitlement of an employee to be reimbursed additional temporary quarters subsistence expenses (TQSE) incident to a permanent change of station in December 1988. We conclude the employee is not entitled to reimbursement.

BACKGROUND

Mr. Richard A. Alschuler, an employee of the Customs Service, was transferred to Miami, Florida, with a reporting date of December 4, 1988. He and his family were initially authorized 60 days of temporary quarters occupancy, but because he and his wife had taken a 7-day house hunting trip in October 1988, his initial TQSE period was limited to 53 days. was later granted a 60-day extension by the Regional Director, Internal Affairs.

On October 15, 1988, Mr. Alschuler executed a 1-year lease on an unfurnished two-bedroom single family residence in the Miami area, with the lease period to commence on November 15, 1988. In a collateral document executed the same day, the lessor agreed to permit Mr. Alschuler to terminate the lease any time after 6 months (May 15, 1989), upon 60 days advance written notice.

Mr. Alschuler and his family arrived in Miami on December 1, 1988, and began temporary quarters occupancy in a motel. They did not move into their previously rented unfurnished residence until December 4, because their household goods were still in transit.

By travel orders dated January 26, 1989, Mr. Alschuler was required to perform temporary duty travel to Washington, D.C., beginning January 29, 1989, while his family remained in the rented quarters in Miami. The period of temporary duty was initially scheduled to extend to May 26, 1989, but he completed his assignment on March 19, 1989. In late March, shortly after his return from temporary duty, Mr. and Mrs. Alschuler executed a contract to purchase a residence in the Miami area. In June 1989 they went to settlement and moved into that residence.

Mr. Alschuler made a claim for subsistence expenses incident to temporary quarters for the period December 1, 1988, to March 23, 1989. The agency allowed the period December 1-3, 1988, and disallowed the remaining period. The reasons for that disallowance were: (1) Mr. Alschuler executed a 1-year lease on the residence claimed to be his temporary quarters; (2) he had his household goods delivered to the rented residence; (3) he and his family continued to occupy those quarters until June 1989; and (4) although he claimed to have actively sought permanent housing during the initial temporary quarters period, he did not make any offers to purchase contingent on the sale of his former residence nor did he provide any evidence to substantiate his house hunting efforts.

Mr. Alschuler contends that the residence his family moved into on December 4 was not adequate for permanent occupancy because it only had two bedrooms as compared to their 3-bedroom residence at their old station and was intended to be temporary until they could find other housing. Further, he states that the only reason he moved his household goods into the temporary residence was to establish a sense of stability and continuity for his family. He adds that only a small portion of the household goods were actually unpacked. He also contends that their search efforts were frustrated because they could not sell their old residence quickly due to the depressed housing market at his old station and because he had to perform a lengthy period of temporary duty away from the Miami area.

OPINION

At the time in question, the payment of subsistence expenses incident to temporary quarters occupancy was governed by 5 U.S.C. Sec. 5724a(a)(3) (1988) and the implementing regulations contained in chapter 2, part 5, of the Federal Travel Regulations (FTR). /2/ Paragraph 2-5.2c of the FTR explains what constitutes "temporary quarters" as follows:

"Generally, the term `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. However, occupancy of temporary quarters that eventually become the employee's permanent residence shall not prevent payment of the temporary quarters allowance if, in the agency's judgment, the employee shows satisfactorily that the quarters occupied were intended initially to be only temporary. In making this determination the agency should consider factors such as: the 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."

By its terms, the FTR commits to the agency's judgment determinations of whether an employee has provided satisfactory evidence of intent to occupy quarters only on a temporary basis. Therefore, we will defer to the agency's judgment unless that judgment has no support in the record and, as a result, must be considered an abuse of discretion.

When reviewing agency determinations, we have looked to the factors listed in FTR paragraph 2-5.2c in considering whether an employee who occupies permanent-type quarters intends to do so only temporarily, recognizing that the employee has the burden of providing convincing evidence of such intent. See, e.g., Myroslaw J. Yuschishin, B-194073, June 18, 1979, and decisions cited. We also have recognized that a determination as to what constitutes temporary quarters must be based upon the particular facts and circumstances in each case. See, e.g., Carl A. Zulick, 67 Comp.Gen. 585 (1988), and decisions cited.

In Mr. Alschuler's case, it is clear that the agency performed the analysis required by FTR paragraph 2-5.2c, supra, and applied the factors set forth in that paragraph. The agency's determination that, on balance, Mr. Alschuler failed to provide satisfactory evidence of intent to occupy the residence only on a temporary basis is plausible under the record before us.

Mr. Alschuler notes that he did reserve the right to terminate his 1 year lease after only 6 months upon giving notice to the owner of the residence. Nevertheless, this indicates that at the time he moved into the residence Mr. Alschuler intended to remain there with his family for at least 6 months, and possibly longer. Mr. Alschuler also moved his household goods into the residence, and presumably used them, although he suggests that he did so primarily to establish a sense of stability and continuity for his family.

Further, there is no objective evidence that Mr. Alschuler "made intensive, definite, and substantial efforts" to secure new quarters and thereby "clearly manifested" an intent to occupy his initial quarters only on a temporary basis. Compare Carl A. Zulick, supra, 67 Comp.Gen. at 588. Mr. Alschuler cites his temporary duty assignment on January 29, 1989, as a reason why he did not find permanent quarters sooner. However, as the agency points out, that assignment did not begin until almost 2 full months after Mr. Alschuler arrived at his new duty station. Another reason appears to have been his inability to sell his former residence; but we agree with the agency that this reason does not excuse Mr. Alschuler's failure to attempt to secure permanent quarters.

As noted above, the determination of what constitutes temporary quarters must be based on the particular facts and circumstances of each case, and the agency's determination is entitled to deference unless it is wholly unsupported by the record. The record in this case, while not definitive, does provide support for the agency's determination. Accordingly, we sustain the agency's action and deny Mr. Alschuler's claim.

/1/ Mr. Frank Palmer, Ref: FIS-8-01: OM:C:N:A:T: LLL.

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