Matter of: Stephen P. Szarka TQSE Extension File: B-247426 Date: June 4, 1992

B-247426: Jun 4, 1992

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The agency's denial of those days was not arbitrary or an abuse of discretion. While on a househunting trip before reporting to his new duty station signed a contract on October 10 to purchase a house that was to be constructed within 120 days. The Bureau authorized an initial 30-day period of TQSE while the house was under construction. This initial period was extended to 60 days and then extended again to 90 days because of short term delays in construction of a new residence. That the denial was based upon a thorough housing market analysis which showed "a whole gamut of houses in any price range and location" to choose from. That the denial was based upon the prior granting of a househunting trip and 90 days of TQSE which was "reasonable and equitable.

Matter of: Stephen P. Szarka TQSE Extension File: B-247426 Date: June 4, 1992

CIVILIAN PERSONNEL Relocation Temporary quarters Actual subsistence expenses Eligibility Extension An employee requested an extension of eligibility for temporary quarters subsistence expenses of 60 days beyond the initial 60-day period authorized by the agency. The agency allowed an additional 30 days but denied the remaining 30 days. In light of the agency's discretion to extend the initial 60-day period, the employee has no entitlement to the final 30 days of possible eligibility, and the agency's denial of those days was not arbitrary or an abuse of discretion.

DECISION Mr. Stephen P. Szarka, an employee of the Bureau of Indian Affairs, Department of the Interior, has appealed our Claims Group's settlement which denied his claim for an additional 30 days of eligibility for temporary quarters subsistence expenses (TQSE). For the reasons discussed below we sustain the Claims Group's denial.

BACKGROUND

Mr. Szarka transferred to Coolidge, Arizona, effective October 23, 1990, and while on a househunting trip before reporting to his new duty station signed a contract on October 10 to purchase a house that was to be
constructed within 120 days. His family joined him at his new duty station
on November 30, 1990, and the Bureau authorized an initial 30-day period
of TQSE while the house was under construction. This initial period was
extended to 60 days and then extended again to 90 days because of short
term delays in construction of a new residence. However, the Acting Area
Office Director in Phoenix did not agree with Mr. Szarka's project
director's recommendation in Coolidge to extend eligibility for the last
30 days and denied the requested extension because "adequate time has been
extended for temporary subsistence in this case."

Mr. Szarka twice asked the Bureau to review the denial, and the Area
Director in the Phoenix office assured him that the Acting Area Director
at the time had the delegated authority to make the denial, that the
denial was based upon a thorough housing market analysis which showed "a
whole gamut of houses in any price range and location" to choose from, and
that the denial was based upon the prior granting of a househunting trip
and 90 days of TQSE which was "reasonable and equitable, and demonstrates
a prudent use of Bureau funds."

After the Claims Group affirmed the Bureau's discretion to deny the final
30 days of TQSE, Mr. Szarka had the following objections to the denial:
(1) no basis has been provided for the Acting Area Director to overturn
the immediate project director's recommendation that the last 30-day
extension of TQSE be granted; (2) no reasons were given why it was not
arbitrary to accept short term construction delays for two extensions of
TQSE but not for the last extension when the same need for temporary
housing still existed; and (3) different reasons were given at different
times by the Bureau for denial, and no basis was given for the inference
that an existing house, rather than one to be constructed, should have
been purchased.

OPINION

Regarding the payment of TQSE, the Federal Travel Regulations (FTR)
provide: "As a general policy, the period for temporary quarters shall be
reduced or avoided if a round trip to seek permanent residence quarters
has been made . . . ." 41 C.F.R. Sec. 302-5.1. 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. Mark A. Wohlander, B-238300, Oct. 4, 1990.

Mr. Szarka's first objection to the agency denial of the last 30-day
extension might be valid if his project director had the authority to
grant the last extension. However, the Bureau has informally informed us
that its policy states that only area directors and above have the
authority to grant a final 30-day extension of TQSE. Thus, the project
director's recommendation could not bind the Bureau.

Mr. Szarka's second objection to the denial is that it was arbitrary to
accept a short term construction delay as a valid reason for two
extensions but not the third when the need still existed for temporary
housing. Essentially the same question arose in Robert R. Hollister,
B-238601, Oct. 4, 1990. In that case the employee, without taking a
househunting trip, transferred to New York City effective January 4, 1988,
but, after diligent searching, was not able to contract to purchase an
existing residence until January 14 that had a settlement date of April
25, 1988. Although the agency granted the initial 60 days of TQSE and an
extension of 30 days because of the difficulty in finding housing at
reasonable prices in the New York area, and because of the delay in
settlement, it denied the last extension even though the need for
temporary quarters still existed. We concluded that in light of the
discretion granted to agencies to limit the period of TQSE, the denial of
the last extension was not arbitrary, capricious, or an abuse of
discretion. That conclusion controls Mr. Szarka's case.

Regarding Mr. Szarka's third objection, we view the Bureau's different
reasons given for denial as merely different aspects of the agency's
inherent discretion to limit the period for TQSE. While there is no
regulatory preference for an existing house over a house yet to be
constructed (particularly when the yet to be constructed house is finished
within the initial 60-day period for TQSE), there is a regulatory command
to limit TQSE as much as possible. A relevant factor in the exercise of an
agency's discretion to limit TQSE is the number of available houses. The
Bureau legitimately considered this factor in exercising its discretion.

Accordingly, the Claims Group's denial of an additional 30-day extension
of TQSE is affirmed.

To: Director, Claims Group GGD From: James F. Hinchman General Counsel
Subject: Stephen P. Szarka Temporary quarters extension--B-247426-O.M.

We are returning file Z-2867473, along with a copy of our decision of
today, B-247426, which sustains your denial of the claim for extension of
the last 30-day period for temporary quarters subsistence expenses.