B-233653, Nov 20, 1989

B-233653, Nov 20, 1989

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Eligibility - Extension DIGEST: Where the record supports an agency's explanation that an employee's claim for an additional period of temporary quarters was denied on the basis of the employee's circumstances, and the Federal Travel Regulations provide for a reduction or denial of temporary quarters under such circumstances, this Office will not disturb the agency's action. However, an agency policy limiting temporary quarters to 30 days for all transferred employees who elect relocation services is contrary to the Federal Travel Regulations and should not be enforced.

William H. Beavers - Relocation Services - Extension of Temporary Quarters Subsistence Expenses:

This is in response to a request from the Department of the Interior for a decision regarding Mr. William H. Beavers's claim for an additional 30 days of temporary quarters subsistence expenses (TQSE). While we will not disturb the agency's disallowance of Mr. Beavers's claim based on his individual circumstances, we find that the agency's policy of limiting TQSE to 30 days for all transferred employees who elect relocation services is arbitrary and contrary to the Federal Travel Regulations and should no longer be enforced.

BACKGROUND

Mr. Beavers, a former employee of the Bureau of Reclamation, Department of the Interior, transferred from Boulder City, Nevada, to Rolla, Missouri, for employment with the United States Geological Survey (USGS) on March 13, 1988. USGS authorized 30 days TQSE, which was reduced by 4 days because of an authorized househunting trip. In connection with this change of station, Mr. Beavers elected to use the guaranteed home sale service portion of the agency's relocation service contract.

Mr. Beavers occupied temporary quarters at his new station beginning on March 17, 1988. On April 4, 1988, when he realized that his new permanent residence might not be available for occupancy until May 9, he requested an additional 30 days of TQSE, since the initial 30-day period would expire on April 12. USGS initially denied the request based on agency policy published in USGS Instructional Memorandum No. BFM-86-005, September 25, 1986, which at paragraph 4d provides that "an employee who elects to use the guaranteed home sale portion of the contract (for relocation services) will be limited to a maximum of 30 days temporary quarters."

The Department of the Interior's Financial Management Office sustained the disallowance by letter of September 7, 1988. The Office identified paragraph 2-5.1 of the Federal Travel Regulations (FTR) (Supp. 10, Mar. 13, 1983), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1987), rather than BFM-86-005 as the basis for supporting the denial of Mr. Beavers's claim. Paragraph 2-5.1 of the FTR states that, as a general policy, if an employee makes a househunting trip or if the family does not move until some time after the employee's transfer, TQSE shall be reduced or avoided. The regulation further requires that the administrative determination as to whether the occupancy of temporary quarters is necessary and the length of time allowed be made on an individual-case basis. The Office explained that the denial resulted from consideration of Mr. Beavers's individual circumstances.

OPINION

It is within an agency's discretion to determine whether to authorize temporary quarters and for what length of time. See 5 U.S.C. Sec. 5724a(a)(3) (Supp. IV 1986); Meryl Bullard, B-221978, Apr. 2, 1986. This Office will not challenge an agency's exercise of this discretion unless its determination is arbitrary, capricious, or contrary to law. Alexander Bell, B-201382, Aug. 26, 1981.

Here, the Office of Financial Management explained that the TQSE denial was the result of determinations reflecting consideration of the employee's individual circumstances in accordance with FTR, para. 2 5.1. The circumstances included an authorized househunting trip, and Mr. Beavers's intention to delay relocation of his family for several months until his children finished the school year. Since the regulation expressly provides that under those circumstances the period of temporary quarters shall be reduced or avoided, the agency correctly denied Mr. Beavers's request for an additional 30 days of TQSE. Accordingly, we find no basis to reverse the agency's denial of this claim.

However, we note that the policy stated in the USGS Instructional Memorandum No. BFM-86-005 limiting temporary quarters to a maximum of 30 days for all employees who elect relocation services appears to conflict with FTR, para. 2-5.1, which requires determinations of TQSE necessity and duration to be made on an individual-case basis. The USGS limit is a blanket restriction which applies to all employees who elect to use the guaranteed home sale service. Thus, in practice, allowances are not made as the result of determinations of necessity derived from consideration of the circumstances relating to individual employees who are transferred.

Further, we know of no provision in FTR, chapter 2, part 12 (Supp. 11, July 25, 1984), regarding the use of relocation service companies, which would authorize such a restrictive TQSE policy for employees using relocation services. It is our view that while the use of relocation services may be a factor to be taken into consideration in determining an employee's need for and duration of TQSE, since use of the services may generally be easier and faster than private residence sale, an individual employee's situation may involve other factors demonstrating a need for an extended use of temporary quarters. Therefore, there is no reasonable basis upon which to place a flat limit on TQSE when employees elect to use the relocation service.

Accordingly, we believe that the USGS policy limiting TQSE to 30 days for all employees electing to use relocation services is contrary to the FTR provision requiring that TQSE allowance should be determined on an individual-case basis, and should not be enforced. See Rosemary A. Smith, B-235787, 69 Comp.Gen. *** decided today. See also William D. Dudley, 67 Comp.Gen. 310 (1988).