B-160195, OCT. 27, 1966

B-160195, OCT. 27, 1966

TO MISS MARGE E. RYLAND:

THIS IS IN REPLY TO YOUR LETTER OF SEPTEMBER 21, 1966, APPEALING FROM OUR OFFICE SETTLEMENT NO. Z-2315193 OF JUNE 21, 1966, DENYING YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE (TLA) AS AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) IN SANTO DOMINGO.

IN YOUR INITIAL LETTER OF OCTOBER 22, 1965, YOU INDICATED THAT YOU ARRIVED IN SANTO DOMINGO ON AUGUST 24, 1965. FOLLOWING YOUR ARRIVAL YOU WERE PLACED IN ROOM NO. 649 IN THE EL EMBAJADOR HOTEL BY EMBASSY ARRANGEMENT, AND PAID TLA OF $8.25 PER DAY.

YOU STATE THAT THE GOVERNMENT AT THIS TIME HAD LEASED 32 ROOMS ON THE FOURTH FLOOR OF THE SAME HOTEL. ON SEPTEMBER 24, 1965, YOU WERE ADVISED THAT YOU WOULD HAVE TO MOVE INTO A GOVERNMENT-LEASED ROOM ON THE FOURTH FLOOR OR LOSE YOUR TLA. YOU INDICATED THAT IT WAS INCONVENIENT, THAT YOU EXPECTED TO MOVE INTO PERMANENT QUARTERS SHORTLY AND SO YOU DID NOT MOVE. YOUR ALLOWANCE WAS TERMINATED ON SEPTEMBER 24, 1965.

OUR OFFICE WROTE YOU INFORMALLY ON NOVEMBER 1, 1965, ADVISING YOU THAT YOUR ENTITLEMENT TO TLA WAS DOUBTFUL AND THAT YOU SHOULD FIRST PRESENT YOUR CLAIM TO THE AGENCY. IN THE EVENT THE STATE DEPARTMENT DID NOT SUBMIT IT AS A DOUBTFUL CLAIM YOU WERE INFORMED THAT YOU COULD FORWARD IT TO OUR OFFICE FOR DIRECT SETTLEMENT.

IN YOUR CLAIM LETTER OF FEBRUARY 23, 1966, YOU ADVISED OUR OFFICE THAT YOU WERE UNABLE TO OBTAIN A DECISION FROM AID AND WERE REQUESTING REIMBURSEMENT OF $643.50 FOR 78 DAYS TLA AT $8.25 PER DAY FOR THE PERIOD FROM SEPTEMBER 24 TO DECEMBER 10, 1965, THE DATE YOU MOVED INTO PERMANENT QUARTERS. THE AGENCY REPORTS THAT ON OCTOBER 5, 1965, YOU APPLIED FOR A GOVERNMENT-LEASED ROOM AND NONE WAS AVAILABLE, BUT THAT ONE WAS MADE AVAILABLE TO YOU ON OCTOBER 9 WHICH YOU DID NOT ACCEPT. YOU SAY THAT A GOVERNMENT-LEASED ROOM WAS NOT OFFERED YOU ON OCTOBER 9. YOU ALSO STATE THAT ANOTHER SECRETARY, FRANCES PLUMMER, ALTHOUGH SHE TOO REFUSED TO MOVE INTO GOVERNMENT-LEASED QUARTERS, CONTINUED TO RECEIVE TLA. OUR OFFICE WILL TAKE STEPS TO OBTAIN THE FACTS OF HER CASE AND WILL TAKE APPROPRIATE ACTION. IN ANY EVENT, HOWEVER, YOUR CASE IS FOR DETERMINATION ON ITS FACTS AND THE APPLICABLE STATUTE AND REGULATIONS.

WITH RESPECT TO QUARTERS ALLOWANCE, SECTION 211 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCE ACT, PUB.L. 86-707, APPROVED SEPTEMBER 6, 1960, 74 STAT. 793, 5 U.S.C. 3036 (NOW 5923), PROVIDES IN PERTINENT PART AS FOLLOWS:

"WHENEVER GOVERNMENT-OWNED OR GOVERNMENT-RENTED QUARTERS ARE NOT PROVIDED WITHOUT CHARGE FOR AN EMPLOYEE IN A FOREIGN AREA, ONE OR MORE OF THE FOLLOWING QUARTERS ALLOWANCES MAY BE GRANTED TO SUCH EMPLOYEE WHERE APPLICABLE:

"/1) A TEMPORARY LODGING ALLOWANCE FOR THE REASONABLE COST OF TEMPORARY QUARTERS INCURRED BY THE EMPLOYEE AND HIS FAMILY (A) FOR A PERIOD NOT IN EXCESS OF THREE MONTHS AFTER FIRST ARRIVAL AT A NEW POST OF ASSIGNMENT IN A FOREIGN AREA OR A PERIOD ENDING WITH THE OCCUPATION OF RESIDENCE QUARTERS, WHICHEVER SHALL BE SHORTER * * *.'

IN EXECUTIVE ORDER NO. 10903, ISSUED JANUARY 9, 1961, THE PRESIDENT DELEGATED TO THE SECRETARY OF STATE AUTHORITY TO PRESCRIBE REGULATIONS GOVERNING PAYMENT OF ALLOWANCES. THE SECRETARY OF STATE IN IMPLEMENTING TITLE II OF PUB.L. 86-707, ABOVE, PROVIDED IN STANDARDIZED REGULATIONS, 1961, CHAPTER 100, AS FOLLOWS:

"111. "QUARTERS ALLOWANCE" MEANS AN ALLOWANCE GRANTED PURSUANT TO TITLE II, PARTS A AND B OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT (PUBLIC LAW 86-707) AND SECTIONS 120 OR 130 OF THESE REGULATIONS.

"112. SCOPE. THE QUARTERS ALLOWANCE IS INTENDED TO REIMBURSE AN EMPLOYEE FOR SUBSTANTIALLY ALL OF HIS COSTS FOR EITHER TEMPORARY OR RESIDENCE QUARTERS WHENEVER GOVERNMENT-OWNED OR GOVERNMENT-RENTED QUARTERS ARE NOT PROVIDED TO HIM AT HIS POST WITHOUT CHARGE. * * *"

"121. "TEMPORARY LODGING ALLOWANCE" MEANS A QUARTERS ALLOWANCE GRANTED TO AN EMPLOYEE FOR THE REASONABLE COST OF TEMPORARY QUARTERS INCURRED BY THE EMPLOYEE AND HIS FAMILY FOR A PERIOD NOT IN EXCESS OF (1) THREE MONTHS AFTER FIRST ARRIVAL AT A NEW POST IN A FOREIGN AREA OR A PERIOD ENDING WITH THE OCCUPATION OF RESIDENCE (PERMANENT) QUARTERS, IF EARLIER * * *.'

UPON YOUR ARRIVAL IN SANTO DOMINGO YOU WERE PAID TLA SINCE GOVERNMENT QUARTERS WERE NOT AVAILABLE. WHEN GOVERNMENT-RENTED QUARTERS FOR TEMPORARY LODGING BECAME AVAILABLE IN YOUR HOTEL ON SEPTEMBER 24, 1965, YOU WERE ADVISED TO MOVE FROM YOUR ROOM ON THE SIXTH FLOOR TO A GOVERNMENT -LEASED ROOM ON THE FOURTH FLOOR. YOU CHOSE NOT TO DO SO ALTHOUGH ADVISED OF THE CONSEQUENCES, LOSS OF TLA. THE STATUTE AND REGULATIONS QUOTED ABOVE PREMISE THE GRANTING OF TLA UPON GOVERNMENT QUARTERS NOT BEING PROVIDED OR MADE AVAILABLE. IN THAT REGARD, WE BELIEVE THE AGENCY PROPERLY CONSIDERED THE GOVERNMENT RENTED HOTEL ROOM AS GOVERNMENT-RENTED QUARTERS.

THAT CONGRESS ALSO INTENDED THAT THE QUARTERS ALLOWANCES BE GRANTED ONLY WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE IS SHOWN BY THE COMMENT ON SECTION 211 CONTAINED ON PAGE 9 OF HOUSE REPORT NO. 902, AUGUST 14, 1959, ACCOMPANYING H.R. 7758, WHICH EVENTUALLY BECAME THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, ABOVE:

"PART B--- QUARTERS ALLOWANCES

"SECTION 211 SETS FORTH THE VARIOUS KINDS OF QUARTERS ALLOWANCES WHICH MAY BE GRANTED TO EMPLOYEES IN FOREIGN AREAS.

"THESE QUARTERS ALLOWANCES MAY BE GRANTED TO AN EMPLOYEE IN A FOREIGN AREA WHENEVER GOVERNMENT-OWNED OR GOVERNMENT-RENTED QUARTERS ARE NOT PROVIDED FOR SUCH EMPLOYEE WITHOUT CHARGE TO HIM, AS FOLLOWS:

"TEMPORARY LODGING ALLOWANCE. PARAGRAPH (1) OF SECTION 211 PROVIDES FOR A TEMPORARY LODGING ALLOWANCE FOR THE REASONABLE COST OF TEMPORARY QUARTERS WHICH IS INCURRED BY THE EMPLOYEE AND HIS FAMILY. * * *"

UNDER THE FOREGOING STATUTE, REGULATIONS, AND EXPRESSION OF CONGRESSIONAL INTENT THE PAYMENT OF ALLOWANCES FOR GOVERNMENT QUARTERS IS SPECIFICALLY PRECLUDED DURING ANY PERIOD FOR WHICH GOVERNMENT QUARTERS ARE AVAILABLE. SINCE GOVERNMENT FURNISHED QUARTERS WERE MADE AVAILABLE ON SEPTEMBER 24, 1965, AND WERE REFUSED BY YOU AT THAT TIME NO TLA MAY BE GRANTED FOR THE PERIOD CLAIMED.

THEREFORE, THE ACTION TAKEN IN OUR SETTLEMENT OF JUNE 21, 1966, IS SUSTAINED.