January
16, 2008
CBCA
983-RELO
In
the Matter of JOSEPH P. LAWS
Joseph
P. Laws, Columbia, MD, Claimant.
Brenda
G. McNabb, PCS Section, Dallas Finance Center, Department of Homeland Security,
Dallas, TX, appearing for Department of Homeland Security.
GOODMAN, Board Judge.
Claimant
is an employee of the Department of Homeland Security. He has asked this Board to review the agency=s denial of reimbursement of certain expenses incurred
during his permanent change of station (PCS) transfer.
Factual Background
Claimant
was issued travel orders for a PCS transfer from Columbus, Ohio, to Baltimore,
Maryland. He was authorized thirty days
of temporary quarters subsistence expenses (TQSE) with a report date at his new
duty station in July 2007. When he
submitted his voucher for reimbursement, the agency denied reimbursement of the
amount he claimed for TQSE, stating that he had taken up permanent residence in
the quarters that he had occupied at the new duty station.
On
July 21, 2007, claimant signed a twelve-month lease for an apartment at his new
duty station while he searched to buy a home.
Claimant states that he intended at the time of entering into the lease
that he would only stay in the apartment until he purchased a home. He states further that the lease had a
twelve-month duration because the community did not offer month-to-month leases
and the landlord understood that it was actually a temporary arrangement to
allow him to continue looking for other housing options. He has submitted a letter from the property
manager of the apartment community confirming this arrangement. The rental rate on the apartment was less
expensive than a hotel.
Claimant
rented furniture for the apartment, entering into a minimum three-month
furniture lease, and before the lease expired he had his household goods (HHG)
delivered to the apartment. Claimant
states that he temporarily halted his search for a permanent residence in late
August due to time and financial constraints, and it was then that he made
arrangements to have his HHG delivered.
Claimant
maintains that he consistently stated his intent to purchase a new residence
upon arrival in Maryland. After a close
inspection of the real estate market and the time constraints imposed by his
work schedule, he temporarily suspended his house search until 2008.
The
agency denied claimant=s claim for reimbursement of thirty days of TQSE. It states that it reviewed the requirements
of Federal Travel Regulation (FTR) 302‑6.305, which provides the basis
for determining whether quarters are temporary.
The agency states further that it has taken into consideration the type
of dwelling, duration of the lease, and the movement of household effects into
the quarters. While claimant was
originally authorized temporary quarters of thirty days, the agency contends
that Athe subsequent action he took of deciding to no longer
look for permanent quarters may have caused the temporary quarters to be
permanent.@
Discussion
According
to statute, when the Government transfers an employee from one permanent duty
station to another in the interest of the Government, the agency has the
authority to pay the subsistence expenses that the employee incurs while
occupying temporary quarters, provided certain requirements are met. 5 U.S.C. '
5724a(c) (2000). The FTR in effect at
the time of claimant's transfer defined Atemporary
quarters@ for purposes of TQSE as follows: AThe term
>temporary quarters= refers
to lodging obtained for the purpose of temporary occupancy from a private or
commercial source.@ 41 CFR 302‑6.1
(2007). In determining whether quarters
are temporary, the agency is directed by the FTR to consider factors such as
the duration of the lease, movement of household effects into the quarters, the
type of quarters, the employee=s expressions of intent, attempts to secure a
permanent dwelling, and the length of time the employee occupies the
quarters. 41 CFR 302‑6.305.
Generally,
the execution of a long-term lease for a dwelling by an employee at his new
duty station is a clear indication that the employee intends to occupy the
rented quarters on other than a temporary basis. However, it is necessary to examine the
remaining factors in order to ascertain the intent of the employee at the time
he initially occupied the quarters. Thus, the twelve‑month lease executed
by claimant does not necessarily disqualify claimant from reimbursement of
TQSE. Paul E. Dyer, GSBCA 13802‑RELO,
97‑1 BCA & 28,936.
Rather, claimant
has consistently maintained since his transfer his intent to purchase a new
home at his new duty station and has made attempts to do so. The determination as to whether the quarters
were initially temporary in nature is based on the intent of the employee at
the time he moves into the dwelling. Kim
R. Klotz, GSBCA 13648‑RELO, 97‑1 BCA & 28,789.
In
Klotz, the employee similarly entered into a long-term lease for an
apartment with the intent of purchasing a home at his new duty station, only to
find his house search extended by market conditions. Like claimant in the instant case, he
therefore moved his HHG into the apartment while maintaining his desire to
purchase a home. The Board held:
The regulation[]
makes clear that the decision as to whether quarters are temporary or permanent
should revolve primarily around the employee=s
intention at the time the living arrangement was entered into. This perspective tips the balance in favor of
the factors which suggest that the apartment was originally intended to be
temporary quarters. The long duration of
his stay in the apartment is the result of his having learned . . . that he cannot
afford to move; it thus has no impact on our judgment of his intention at that
time.
97-1 BCA at 143,633.
In
the instant case, while the agency states that claimant=s actions Amay have
caused the temporary quarters to be permanent,@ we find
no reason to question the veracity of claimant=s
assertion that, from the time of his transfer, he has intended to purchase a
home at his new duty station.
Accordingly, we are persuaded that despite his twelve-month lease claimant intended the apartment to be only a
temporary residence until he could find suitable permanent quarters.
Decision
The
claim is granted. Claimant is entitled
to reimbursement of thirty days of TQSE pursuant to statute and regulation.
___________________________________
ALLAN
H. GOODMAN
Board
Judge
The regulation
to which the decision refers is the prior version of 41 CFR 302‑6.305
which contains substantially similar language.
