B-185696, MAY 28, 1976

B-185696, MAY 28, 1976

1. EMPLOYEE MAY NOT BE REIMBURSED FOR TEMPORARY QUARTERS OF WIFE WHERE SHE REMAINS AT NEW DUTY STATION ONLY ONE WEEK AND RETURNS TO AND OCCUPIES FORMER RESIDENCE. ALTHOUGH WIFE'S RETURN MAY HAVE BEEN DUE TO UNAVAILABILITY OF TEMPORARY QUARTERS IN PIERRE, SOUTH DAKOTA, RECORD DOES NOT PROVIDE OBJECTIVE EVIDENCE OF INTENT TO VACATE FORMER RESIDENCE SO AS TO ENTITLE EMPLOYEE TO TEMPORARY QUARTERS UNDER FTR PARA. 2-5.2C. 2. FTR PARA. 2-5.2C REQUIRES THAT FORMER RESIDENCE BE VACATED AS CONDITION OF ENTITLEMENT TO TEMPORARY QUARTERS. DECISIONS OF THIS OFFICE HAVE CONSIDERED VACATE TO MEAN THE TERMINATION OF OCCUPANCY AS THE CUSTOMARY AND USUAL PLACE OF ABODE, E.G., DEPARTURE WITH THE INTENT OF TERMINATING OCCUPANCY. ABSENT EVIDENCE OF INTENT, CLAIM FOR TEMPORARY QUARTERS MAY NOT BE AUTHORIZED FOR PAYMENT. 3. CLAIM OF EMPLOYEE FOR REIMBURSEMENT FOR RENT OF FORMER RESIDENCE AS TEMPORARY STORAGE OF HOUSEHOLD GOODS MAY NOT BE AUTHORIZED FOR PAYMENT WHERE EMPLOYEE'S WIFE RETURNS TO AND OCCUPIES RESIDENCE AFTER ONE WEEK AT NEW DUTY STATION. RETENTION OF HOUSEHOLD GOODS IN FORMER RESIDENCE IN THESE CIRCUMSTANCES IS NOT STORAGE INCIDENT TO TRANSPORTATION AT GOVERNMENT EXPENSE AS REQUIRED BY PARA. 2-8.5 OF FTR.

CHARLES C. WERNER - WHAT CONSTITUTES "TEMPORARY QUARTERS":

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM A CERTIFYING OFFICER OF THE DEPARTMENT OF THE INTERIOR, REGARDING THE PROPRIETY OF PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE DEPENDENT WIFE OF CHARLES C. WERNER, AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, INCIDENT TO A TRANSFER OF STATION.

THE RECORD SHOWS THAT A TRAVEL AUTHORIZATION WAS ISSUED ON MARCH 11, 1974, AUTHORIZING THE TRANSFER OF CHARLES C. WERNER FROM GARRISON, NORTH DAKOTA, TO PIERRE, SOUTH DAKOTA. MR. WERNER AND HIS WIFE ARRIVED AT THE NEW DUTY STATION ON MARCH 18, 1974. MRS. WERNER RETURNED TO THEIR FORMER RESIDENCE IN RIVERDALE, NORTH DAKOTA, ON MARCH 26, 1974, WHERE SHE REMAINED UNTIL APRIL 6, 1974, WHEN SHE AGAIN TRAVELED TO PIERRE, RETURNING AGAIN TO RIVERDALE ON APRIL 7, 1974. MRS. WERNER RETURNED TO THE NEW DUTY STATION ON MAY 22, 1974, WHEN MR. WERNER OBTAINED SUITABLE PERMANENT QUARTERS.

MR. WERNER ORIGINALLY CLAIMED AND WAS PAID $126.04 AS REIMBURSEMENT FOR THE TEMPORARY QUARTERS SUBSISTENCE EXPENSES OF MRS. WERNER WHILE SHE WAS IN PIERRE ON MARCH 18-26 AND APRIL 5-7, 1974. HOWEVER, THE AGENCY REQUESTED AND RECEIVED REPAYMENT OF THIS AMOUNT SINCE HIS WIFE HAD NOT "VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED," AS REQUIRED BY PARA. 2-5.2C OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, AS A CONDITION OF ENTITLEMENT TO REIMBURSEMENT FOR TEMPORARY QUARTERS.

IN EXPLANATION OF HIS WIFE'S RETURN TO THEIR FORMER RESIDENCE ON MARCH 26, 1974, MR. WERNER STATES THAT AT THE TIME OF THEIR INITIAL DEPARTURE TO PIERRE THEIR INTENT WAS TO RETURN ONLY TO MOVE THEIR HOUSEHOLD GOODS, WHICH WERE ALREADY PACKED, AFTER FINDING PERMANENT QUARTERS. BY MARCH 26, 1974, HOWEVER, THEY HAD NOT OBTAINED PERMANENT LODGING AND WERE UNABLE TO ARRANGE FOR ADDITIONAL SUITABLE TEMPORARY QUARTERS BECAUSE THE STATE LEGISLATURE WAS IN SESSION IN PIERRE, AND ALL SUITABLE LODGINGS WERE RESERVED.

THERE IS NO PRECISE DEFINITION OF THE WORD "VACATE" IN THE TRAVEL REGULATIONS. HOWEVER, WE HAVE STATED PREVIOUSLY THAT EACH CASE MUST BE EVALUATED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED. SEE 47 COMP. GEN. 84 (1967); B-181032, AUGUST 19, 1974. VACATE HAS BEEN DEFINED AS "TO MOVE OUT; TO MAKE VACANT OR EMPTY; TO LEAVE; ESPECIALLY, TO SURRENDER POSSESSION BY REMOVAL; TO CEASE FROM OCCUPANCY." BLACK'S LAW DICTIONARY 1717 (REV. 4TH ED. 1968). JUDICIAL INTERPRETATIONS SUGGEST TWO PRINCIPLE DEFINITIONS FOCUSED ON THE UNDERLYING CONCEPTS OF VACANCY AND OCCUPANCY. VACANT HAS BEEN INTERPRETED TO DENOTE ENTIRE ABANDONMENT, DEPRIVED OF CONTENTS, EMPTY. PHOENIX ASSUR. CO., LTD., OF LONDON V. SHEPARD, 137 S.W. 2D 996, 997 (1940); RAINWATER V. MARYLAND CASUALTY CO. OF BALTIMORE, 166 S.E. 2D 546 (1969). IT CONNOTES AN ABSENCE OF INANIMATE OBJECTS AND IMPLIES NONOCCUPANCY FOR ANY PURPOSE. BLEDSOE V. FARM BUREAU MUTUAL INS. CO., 341 S.W. 2D 626, 630 (1970). HOWEVER, THIS DEFINITION MOST FREQUENTLY OCCURS IN THE CONTEXT OF A CONTEST INVOLVING THE FORFEITURE CLAUSE IN A FIRE OR OTHER PROPERTY INSURANCE POLICY SUBJECT TO A STRICT CONSTRUCTION BY THE COURTS. SEE DRUMMOND V. HARTFORD FIRE INS. CO., 343 S.W. 2D 84, 85 (1960); BLEDSOE V. FARM BUREAU MUTUAL INS. CO., SUPRA. IT IS INAPPOSITE HERE. THE MORE APPROPRIATE DEFINITION IN THIS CONTEXT IS THAT BASED ON THE CONCEPT OF OCCUPANCY. IN GENERAL, OCCUPANCY REFERS TO THE USE OF THE PROPERTY AS THE CUSTOMARY AND USUAL PLACE OF ABODE. BLEDSOE V. FARM BUREAU MUTUAL INS. CO., SUPRA; DRUMMOND V. HARTFORD FIRE INS. CO., SUPRA. PREMISES ARE VACATED WHEN ONE CEASES TO OCCUPY THEM FOR THE PURPOSES INTENDED. SEE OCEAN FIFTH REALTY CORP. V. STERN, 109 N.Y.S. 2D 92, 94 (1951).

THE DECISIONS OF THIS OFFICE HAVE REGULARLY APPLIED THE LATTER INTERPRETATION IN DETERMINING WHETHER AN EMPLOYEE HAS VACATED HIS PERMANENT RESIDENCE WITHIN THE MEANING OF THE CITED REGULATIONS. CONSIDERING SUCH CASES, WE HAVE CONSISTENTLY GIVEN SUBSTANTIAL WEIGHT TO THE INTENT OF THE EMPLOYEE WITH RESPECT TO THE LOCATION OF PERMANENT RESIDENCE AND THE OCCUPANCY OF TEMPORARY QUARTERS. THE INQUIRY GENERALLY HAS BEEN WHETHER THE EMPLOYEE, IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES, HAS MANIFESTED BY OBJECTIVE EVIDENCE THE INTENT TO VACATE THE FORMER RESIDENCE. IN APPLYING THIS STANDARD WE HAVE HELD THAT AN EMPLOYEE COULD BE REIMBURSED SUBSISTENCE EXPENSES UNDER PARA. 2 5.2C OF THE FTR WHERE THE EMPLOYEE'S INTENDED DEPARTURE ON THE DATE OF SETTLEMENT WAS DELAYED BY THE BREAKDOWN OF THE MOVING VAN AND THE EMPLOYEE REMAINED IN HIS FORMER RESIDENCE FOR SIX DAYS WITH THE SPECIAL PERMISSION OF THE NEW OWNER. B-181032, SUPRA. SIMILARLY, WE HAVE HELD AN EMPLOYEE ENTITLED TO A TEMPORARY QUARTERS ALLOWANCE WHERE THE EMPLOYEE, AFTER SALE OF HIS RESIDENCE, WAS FORCED TO RENT HIS FORMER RESIDENCE FROM THE NEW OWNER BECAUSE HE WAS UNABLE TO LOCATE SUITABLE TEMPORARY QUARTERS AT EITHER THE OLD OR THE NEW DUTY STATION. B-177965, MARCH 27, 1973. WE HAVE ALSO AUTHORIZED PAYMENT WHERE THE EMPLOYEE'S RETURN TO HIS FORMER RESIDENCE WAS NECESSITATED BY HIS MOTHER'S ILLNESS IN THAT LOCALE, HIS ALREADY OBTAINED PERMANENT QUARTERS AT THE NEW DUTY STATION WERE NOT IMMEDIATELY AVAILABLE, AND HE SPENT THE MAJORITY OF THE PERIOD AT HIS PARENTS' RESIDENCE. B-183617, FEBRUARY 4, 1975. IN EACH OF THESE CASES THERE IS EVIDENCE OF ACTIONS TAKEN BY THE EMPLOYEE PRIOR TO AND/OR AFTER DEPARTURE FROM THE FORMER RESIDENCE WHICH SUPPORTS AN INFERENCE THAT THE EMPLOYEE INTENDED TO CEASE OCCUPANCY OF THAT RESIDENCE. CONVERSELY, WHERE SUCH EVIDENCE IS LACKING, WE HAVE NOT AUTHORIZED THE PAYMENT OF A TEMPORARY QUARTERS ALLOWANCE. B-162680, NOVEMBER 3, 1967; B-173217, JULY 13, 1971.

WE ARE OF THE OPINION THAT MR. WERNER'S CLAIM FALLS WITHIN THE LATTER CATEGORY OF CASES. WHILE IT MAY BE TRUE THAT THE AVAILABILITY OF TEMPORARY QUARTERS AT THE EMPLOYEE'S NEW DUTY STATION WAS SEVERELY LIMITED, THE RECORD AFFORDS US NOT BASIS FROM WHICH WE MIGHT CONCLUDE THAT MRS. WERNER WOULD NOT HAVE RETURNED TO THEIR FORMER RESIDENCE IN ANY EVENT. MERE STATEMENTS OF AN EMPLOYEE'S PROFESSED INTENT ARE NOT SUFFICIENT BY THEMSELVES TO ESTABLISH ENTITLEMENT TO A TEMPORARY QUARTERS ALLOWANCE AND THE RECORD HERE DOES NOT PROVIDE THE OBJECTIVE EVIDENCE NECESSARY TO SUPPORT AN INFERENCE OF THE REQUISITE INTENT. IN THESE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT MRS. WERNER IN FACT VACATED THEIR FORMER RESIDENCE ON MARCH 18, 1974.

IT ALSO HAS BEEN REQUESTED THAT IF WE DO NOT AUTHORIZE PAYMENT OF MR. WERNER'S CLAIM FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES, WE CONSIDER IN THE ALTERNATIVE WHETHER MR. WERNER MAY BE REIMBURSED THE RENTAL EXPENSE OF HIS FORMER RESIDENCE FOR THE TEMPORARY STORAGE OF HIS HOUSEHOLD GOODS. BEFORE PROCEEDING ON THIS QUESTION, HOWEVER, WE NOTE THAT ENTITLEMENT TO TEMPORARY STORAGE OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IS NOT AN ALTERNATIVE TO A TEMPORARY QUARTERS ALLOWANCE BUT, TO THE EXTENT AUTHORIZED, IS CUMULATIVE.

PARAGRAPH 2-8.5, FTR, PROVIDES FOR THE REIMBURSEMENT TO AN EMPLOYEE OF THE EXPENSE OF TEMPORARY STORAGE OF THE EMPLOYEE'S HOUSEHOLD GOODS INCIDENT TO THEIR TRANSPORTATION AT GOVERNMENT EXPENSE. IT IS APPARENT HERE, HOWEVER, THAT THE HOUSEHOLD GOODS REMAINED IN THE RESIDENCE WHICH THE EMPLOYEE WAS OCCUPYING AT THE TIME OF HIS TRANSFER WHILE THAT RESIDENCE WAS STILL OCCUPIES BY THE EMPLOYEE'S WIFE. IN THESE CIRCUMSTANCES, THE RETENTION OF THE HOUSEHOLD GOODS AT THE FORMER RESIDENCE CANNOT BE SAID TO BE INCIDENT TO THEIR TRANSPORTATION AT GOVERNMENT EXPENSE SO AS TO ENTITLE MR. WERNER TO REIMBURSEMENT FOR TEMPORARY STORAGE.

IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT NO PART OF MR. WERNER'S CLAIM FOR REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES OR TEMPORARY STORAGE OF HOUSEHOLD GOODS MAY BE AUTHORIZED FOR PAYMENT.