B-244351, Nov 7, 1991

B-244351: Nov 7, 1991

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A transferred employee purchased a residence at his new duty station which was not scheduled for settlement and occupancy until 14 days beyond his authorized 40-day period for temporary quarters subsistence expenses (TQSE). We are unable to conclude that the agency acted arbitrarily or abused its discretion in denying the requested 14-day extension of TQSE. Thompson: This decision is in response to a request /1/ for a decision concerning the entitlement of Mr. He was authorized to take a 10-day househunting trip and to occupy temporary quarters for 45 days. Possession of the property was to be delivered by the seller to Mr. Thompson states that he had no control over the fact that the seller insisted on remaining in the house after settlement and that there would have been no sale had he not agreed to the delay in occupancy.

B-244351, Nov 7, 1991

DIGEST: While on a househunting trip, a transferred employee purchased a residence at his new duty station which was not scheduled for settlement and occupancy until 14 days beyond his authorized 40-day period for temporary quarters subsistence expenses (TQSE). The agency denied his request for reimbursement for the additional 14 days since the employee knew when he contracted to purchase the house that he would not go to settlement and move into the house until after his TQSE period had ended. Under the Federal Travel Regulation, an agency has broad discretion to limit or extend the period for occupancy of temporary quarters, especially where the employee has taken a househunting trip. We are unable to conclude that the agency acted arbitrarily or abused its discretion in denying the requested 14-day extension of TQSE.

Rodney A. Thompson:

This decision is in response to a request /1/ for a decision concerning the entitlement of Mr. Rodney A. Thompson, a civilian employee of the Department of the Air Force, for an additional period for occupying temporary quarters.

Mr. Thompson transferred from Hill Air Force Base, Utah, to Wright Patterson Air Force Base, Ohio, effective September 10, 1990. He was authorized to take a 10-day househunting trip and to occupy temporary quarters for 45 days. If the employee took a househunting trip, the travel days would be deducted from his temporary quarters subsistence expenses (TQSE).

On August 20, 1990, while on a 5-day househunting trip, Mr. Thompson contracted to purchase a new residence in New Carlisle, Ohio. He and his family commenced occupancy of temporary quarters on August 27, 1990, at his old duty station and continued such occupancy through August 31. performed permanent change-of-station travel for 5 days from September 1 through 5. He resumed occupancy of temporary quarters at his new duty station on September 6 and continued through October 24, 1990.

Mr. Thompson utilized financing by the Veterans Administration (VA) in purchasing his new residence. He states that market conditions at his old duty station dictated the selling price of his residence there and that the sale left him $20,000 short of the down payment required for conventional financing in Ohio. He says that, therefore, he had to use VA financing which requires additional processing time over which he had no control.

Under the terms of the purchase agreement, possession of the property was to be delivered by the seller to Mr. Thompson and his wife on October 25, 1990, 10 days after settlement which occurred on October 15, 1990. Mr. Thompson states that he had no control over the fact that the seller insisted on remaining in the house after settlement and that there would have been no sale had he not agreed to the delay in occupancy. In a letter dated February 27, 1991, the seller supports Mr. Thompson's statement.

An Air Force directive dated February 2, 1987, permits the authorization of an initial period of up to 45 days for temporary quarters occupancy when an employee uses the services of the agency relocation services contractor, as Mr. Thompson did, and allows amendment of the employee's travel orders to authorize up to an initial 60 days when justified and warranted. The directive further provides that TQSE will not be allowed in those instances where an employee provides by contract that the seller can hold over after the settlement date.

The Air Force argues that Mr. Thompson knew at the outset that settlement would not take place until after the authorized period of TQSE had expired. In addition, the Air Force states that Mr. Thompson's decision to use VA financing was a personal one. The agency concluded that these reasons are not considered to be unforeseen circumstances beyond Mr. Thompson's control warranting an extension of TQSE. The Air Force has allowed reimbursement for 40 days of TQSE, after deducting the 5 days used by Mr. Thompson for the househunting trip.

OPINION

An agency may pay a transferred employee subsistence expenses for himself and his immediate family for an initial period of not more than 60 days while occupying temporary quarters and may grant an extension, not to exceed 60 additional days, provided the agency determines that there are compelling reasons for the continued occupancy of temporary quarters, due to circumstances which have occurred during the initial 60-day period of occupancy and which are beyond the employee's control and acceptable to the agency. /2/ Agency determinations are to be made on an individual case-by-case basis. /3/

We have interpreted the temporary quarters regulations in the FTR as granting an agency broad discretion to limit the period of temporary quarters, and we will not challenge an agency's determination absent evidence that it was arbitrary, capricious, or contrary to law. /4/ Thus, in Paul E. Storer, 67 Comp.Gen. 567 (1988), we held that an extension could not be granted where the employee contracted to purchase a yet-to-be constructed house which would be completed on a certain date. In that case, the employee knew that the residence completion date and settlement were not likely to occur within his authorized 60 days of TQSE allowances. Since there were no events which occurred during the initial 60-day period which delayed permanent residence occupancy, there was no basis to allow the claim.

The facts in Storer are identical to those in the case before us. Here, Mr. Thompson knew, in advance, when he contracted to purchase the house in New Carlisle, that the settlement date and the date that he could move into the house were beyond his authorized 40-day period of TQSE, after deduction of the 5 days used for a househunting trip. The establishment of the settlement date and movement into the new residence were within his control. The Air Force directive specifically prohibits reimbursement under these circumstances.

Accordingly, the Air Force's denial of an extension of temporary quarters was consistent with the Air Force guidelines. Therefore, we are unable to conclude that such denial was arbitrary or an abuse of agency discretion.

Honorable David L. Hobson

Member, United States House of Representatives

We further refer to your letter of May 29, 1991, with enclosures, in which you request that the Comptroller General render a decision concerning the claim of Mr. Rodney A. Thompson, an employee of the Department of the Air Force, for an extension of the period of his entitlement to temporary quarters subsistence expenses (TQSE). The expenses were incurred incident to Mr. Thompson's transfer from Hill Air Force Base, Utah, to Wright-Patterson Air Force Base, Ohio, in 1990.

We are enclosing a copy of our decision of today, B-244351, in which we have held that the Department of the Air Force did not act arbitrarily in denying Mr. Thompson's request for an extension of his TQSE allowance for an additional 14 days.

We regret that we were not able to render a decision favorable to your constituent.

Enclosure

/1/ The request was submitted by the Honorable David L. Hobson, United States House of Representatives.

/2/ 5 U.S.C. Sec. 5724a(a)(3) (1988); the Federal Travel Regulation (FTR), 41 C.F.R. Sec. 302-5.2 (1990).

/3/ FTR, 41 C.F.R. Sec. 302-5.1; Rosemary A. Smith, B-235787, Nov. 20, 1989, 69 Comp.Gen. 95.

/4/ John J. Goglia, B-235177, Aug. 23, 1989, Alexander Bell, B-201382, Aug. 26, 1981.