June 19, 2007
CBCA 695-RELO
In the Matter of
DONALD L. SCHAFFER
Donald L. Schaffer, Delanco, NJ, Claimant.
Judy Hughes, Defense Finance and Accounting Service,
Columbus, OH, appearing for the Department of Defense.
FENNESSY, Board Judge.
Background
Claimant, Donald L. Schaffer, is a civilian employee
of the Defense Logistics Agency (DLA).
On August 30, 2006, DLA authorized a permanent change of station (PCS)
for Mr. Schaffer from Pearl Harbor, Hawaii, to Philadelphia, Pennsylvania. DLA=s
orders, as amended, authorized reimbursement to Mr. Schaffer of actually
incurred temporary quarters subsistence
expenses (TQSE) for himself and his wife for a total of sixty-six days. Claimant and his wife occupied temporary
quarters in Hawaii from September 26 to October 1, and began the occupancy of
temporary quarters in the Philadelphia area on October 2, 2006. From the record, it appears that this claim
involves only the time spent in temporary quarters in the Philadelphia area.
The Defense Finance and Accounting Service (DFAS)
calculated claimant=s reimbursement for TQSE in the Philadelphia area
based upon the standard per diem rate for locations within the continental
United States (CONUS) of $99 pursuant to the Federal Travel Regulation (FTR)
302-6, subpart B. Claimant believes that
he should be reimbursed at the higher per diem rate for New Jersey, where he
occupied temporary quarters based upon FTR 301-11.303, which provides that the
maximum amount an employee on temporary duty (TDY) may be reimbursed under the
actual expense method of reimbursement is limited to 300% of the applicable,
maximum per diem rate. DFAS declined to
reimburse Mr. Schaffer for the difference of $3615.90, noting that the
provision he referenced applied to TDY travel expenses and not to actually
incurred TQSE in connection with a PCS.
Mr. Schaffer has requested that the Board review the
agency=s determination.
He argues that, had he been in a TDY status, he could be reimbursed
actual expenses of up to 300% of the maximum allowable per diem rate pursuant
to FTR 301-11.30, -11.303, because the Government lodging rate exceeded the
allowable reimbursement. He complains
that the failure of the regulations to provide the same recourse for employees
in PCS status constitutes an unfair double standard. For the reasons discussed below the agency
properly denied the claim.
Discussion
When the Government transfers an
employee from one permanent duty station to another in the interest of the
Government, the agency has authority to pay the subsistence expenses the
employee incurs while occupying temporary quarters, provided certain
requirements are met. 5 U.S.C. ' 5724a(c) (2000). The FTR implements the statute; the Joint
Travel Regulations (JTR), applicable to civilian employees of the Department of
Defense, supplement the FTR. Donald D. Fithian, Jr., GSBCA
16712-RELO, 06-1 BCA & 33,204. The regulations in effect at the time
claimant reported to the new duty station govern the reimbursement of his
expenses. 41 CFR 302-2.3 (2006) (FTR
302-2.3); Monika Mayr, GSBCA 16685-RELO, 05-2 BCA & 33,106.
Chapter
302 of the FTR applies to relocation expenses of employees who are authorized a
PCS. It is a matter of agency discretion
whether to authorize a TQSE allowance for PCS expenses. 41 CFR
302-6.6; JTR C5362; Donald D. LaChance, GSBCA 16911-RELO, 06-2
BCA & 33,396. If a
TQSE allowance is authorized, the FTR provides that, under the actual expense
method of TQSE reimbursement, the agency will pay the actual TQSE incurred,
provided the expenses are reasonable and do not exceed the maximum allowable
amount. The maximum allowable amount is
the actual daily amount multiplied by the number of days TQSE is
authorized. The actual daily amount for
Mr. Schaffer was the applicable per diem rate and, for his wife, 75% of the
applicable per diem rate, for the first 30 days. Additional days are reimbursed at a reduced
percentage of the applicable per diem rate.
41 CFR 302-6.100; Kenneth R. Wheeler, Jr., GSBCA 16630-RELO, 05-2
BCA & 33,054. The
applicable per diem rate for the time spent in New Jersey is the standard CONUS
(Continental United States) rate which, at the relevant time, was $99. 41 CFR 302-6.102; JTR C5360, C5372-A.2a. The JTR expressly state that expenses
exceeding the total authorized TQSE amount are the financial responsibility of
the employee. JTR C5370-C .
Chapter
301 of the FTR pertains to TDY travel expenses for employees traveling on
official business. 41 CFR 301-1.3. As stated above, it provides that the maximum
amount reimbursable under an actual expense reimbursement of a TDY claim is
limited to 300% of the applicable maximum per diem rate. 41 CFR 301-11.303. Claimant believes it is unfair that the more
flexible TDY rules set forth in Chapter 301 for obtaining an increase in the
amount of allowable expenses do not apply to his claim.
In
support of his position, claimant seems to suggest that, because there are
references in the relocation allowances section of the FTR to certain TDY
regulations, all of the TDY regulations should apply to his relocation
claim. Specifically, Mr. Schaffer relies
upon FTR 302-6.12, which states: AFor
actual TQSE reimbursement, you must document TQSE by itemizing each expense and
providing receipts as required by '' 301-11.25, 301-11.306 and 301- 52.4(b) of
this title.@ The referenced
sections describe the TDY expenses that must be itemized and state that
receipts must be provided for lodging and any expense over $75. Thus, the provision in Chapter 302-6 for TQSE
incurred in connection with a PCS incorporates the TDY requirements of Chapter
301 for documenting expenses. Similarly,
the drafters of the regulations incorporated the rules for TDY travel from
Chapter 301 into the provision of Chapter 302-4 concerning PCS travel
expenses. See 41 CFR
302-4.100. The drafters, however, did
not incorporate into the TQSE provisions of Chapter 302-6 the TDY provisions of
Chapter 301-11.30, -11.303 for increasing reimbursement of expenses up to 300%
of the applicable per diem. Therefore,
those TDY provisions are not applicable to Mr. Schaffer=s claim.
Although not reflected in Mr. Schaffer=s submissions, the agency report
indicates that he also asked whether he may submit a supplemental claim to
recoup lodging taxes, laundry/dry cleaning, and pressing of clothes as
miscellaneous expenses pursuant to 41 CFR
301-11.27. That provision of the
FTR states that lodging taxes are not included in the per diem rate for TDY
travel and are reimbursable as miscellaneous expenses. Laundry, dry cleaning, and pressing of
clothes are reimbursable to TDY travelers as miscellaneous expenses pursuant to
41 CFR 301-11.31. Chapter 302-6 does not
contain, or incorporate by reference, the provisions of Chapter 301 permitting
recovery of the type of miscellaneous expenses claimed by Mr. Schaffer. Consistent with the FTR, JTR C5370-B
provides that actually incurred TQSE daily allowable expenses are inclusive of
temporary lodging, including taxes; meals and/or groceries; fees and tips
incident to meals and lodging; laundry; and cleaning and pressing of
clothes. These expenses, therefore, are
not separately reimbursable.
Whether the differences between the amount of
allowable reimbursement of expenses for
TDY and PCS are unfair is a policy question which is for the
Congress and the regulation-writers to decide.
As a quasi-judicial tribunal, we are limited to interpreting and
applying the law as it exists. George Span, GSBCA 13728-RELO, 97-1 BCA & 28,859.
Decision
The agency has correctly interpreted and applied the
regulations. The claim is denied.
_____________________________
EILEEN
P. FENNESSY
Board
Judge
Mr. Schaffer=s orders authorized reimbursement of Amiscellaneous expenses@ in
connection with his PCS. However, the
miscellaneous expenses authorized by Chapter 302 are costs associated with
discontinuing a residence at the old duty station and establishing a residence
at the new duty station such as disconnecting or connecting appliances and
cutting and fitting draperies and carpets.
41 CFR 302-16.1. They are not
expenses related to TQSE. Monika Mayer, GSBCA 16685-RELO, 05-2
BCA & 33,106.
