__________________ November 19, 1997 __________________ GSBCA 13927-RELO In the Matter of WILLIAM A. McIVER William A. McIver, Williston, VT, Claimant. Myra Hays, Accounting Officer, Administrative Center, Office of Finance, Immigration & Naturalization Service, Dallas, TX, appearing for Department of Justice. HYATT, Board Judge. Claimant, William A. McIver, an employee of the Immigration and Naturalization Service (INS), seeks reimbursement of amounts spent for meals purchased while occupying temporary quarters incident to his permanent change of station (PCS) transfer from St. Croix, United States Virgin Islands to St. Albans, Vermont. INS has denied Mr. McIver's claim for the cost of meals in its entirety because he did not keep receipts for meals. Mr. McIver has requested our review of the agency's action. For the reasons explained below, we return this matter to INS for an evaluation of the reasonableness of Mr. McIver's claimed meal expenses and for further action consistent with this decision. Background The travel authorization for Mr. McIver's transfer from St. Croix to Vermont was signed on September 30, 1995. Mr. McIver and his spouse entered into temporary quarters in Burlington, Vermont on October 20, 1995 and remained in temporary quarters through December 17, 1995. Mr. McIver states that prior to his transfer he received from INS an instruction manual dated July 1995, which he reviewed in connection with the move. A copy of this instruction manual has been submitted with the claim. Nowhere in the manual received by claimant does it state that receipts for meals claimed as temporary quarters subsistence expenses (TQSE) would be required as a condition of reimbursement. The manual included copies of forms to be submitted for reimbursement of relocation expenses, including a travel voucher form AD-616, to be accompanied by an "Expense Record for Temporary Quarters." The instructions for completing this form state that the employee should: Record actual subsistence expenses on a daily basis for (1) lodging, (2) meals, and (3) all other items of subsistence expenses. Receipts must be obtained to support lodging, laundry and cleaning expenses (except when coin-operated facilities are used). Mr. McIver reviewed the manual prior to his move. In accordance with the instructions for completing his expense record, he tracked his costs on a daily basis, but did not keep receipts for meals. On November 21, 1995, Mr. McIver filed a travel voucher, using the forms provided in the relocation package, requesting reimbursement of expenses incurred during the initial thirty-day TQSE period from October 20 to November 18, 1995. In a notice dated December 13, 1995, the INS Administrative Center in Dallas informed claimant that he would not be reimbursed for the costs of meals because of the failure to provide receipts. Attached to the INS response to claimant's travel voucher was a copy of a Department of Justice supplement to the Federal Travel Regulation (FTR) applicable to TQSE. This supplement stated that receipts would be required for all expenses claimed under TQSE, including meals. According to Mr. McIver, this was the first communication from the agency alerting him to any requirement regarding the submission of meal receipts. As a result of the timing of INS's response, claimant was not in a position to provide receipts for meals for the second TQSE period either. Accordingly, the meal expenses documented on the second voucher, for November 21 through December 17, 1995, were also suspended by INS. Ultimately, INS denied Mr. McIver's claim for meal expenses in its entirety for failure to submit receipts. Mr. McIver seeks reimbursement of a total amount of $1,711.42 in TQSE meal expenses. Although INS concedes that the meal receipts requirement was not explicitly specified in the manual provided to Mr. McIver in connection with this transfer, it takes the position that a standard cover letter was customarily provided with the package. The cover letter states that: This memo and the PCS package attached are as important as the PCS travel orders you have received. . . . You are required to submit receipts with your voucher. Receipts are required for meals, laundry, and lodging. Without these receipts, your voucher will be greatly delayed, and some costs not reimbursed. Mr. McIver states that he did not receive a copy of the referenced cover memorandum in his PCS package. Mr. McIver provided the Board a copy of the materials he received in attachments submitted with his initial claim filed with the Board prior to the agency's response. The memorandum is not included with the materials he submitted in his claim. Discussion When an agency transfers an employee from one permanent duty station to another in the interest of the Government, it shall reimburse the employee for the subsistence expenses incurred by the employee and his family while they occupy temporary quarters. 5 U.S.C. 5724a(a)(3) (1994). The Federal Travel Regulation (FTR), which implements this statutory provision, provides that agencies shall reimburse transferred employees "only for actual subsistence expenses incurred provided these are . . . reasonable in amount." Employees are required to itemize their actual expenses in a manner that permits the agency to review the amounts spent daily for lodging and meals. Although the FTR does not require employees to submit receipts for meals, the FTR permits agencies to prescribe the manner in which employees must itemize actual expenses. 41 CFR 302-5.4 (1995). In this case, the Department of Justice (DOJ), of which the INS is a component agency, has an internal regulation, supplementary to the FTR, that provides that the employee should keep receipts for meals while eligible for TQSE. This regulation, which applied at the time of Mr. McIver's transfer,[foot #] 1 refers to a form OBD-41 (or other appropriate bureau form), to be submitted with claims for reimbursement of subsistence expenses and states that the employee shall: Complete Form OBD-41 for the itemization of subsistence expenses described in this part. The actual expenses shall be itemized in a manner that will permit a review of the amounts spent daily for (a) lodging, (b) meals, and (c) all other items of subsistence expense. Receipts shall be required for all expenses claimed. Claims for coin-operated laundry expenses may be made by written certification by the traveler. ----------- FOOTNOTE BEGINS --------- [foot #] 1 In March 1996, INS eliminated the requirement to provide meal receipts for all PCS moves, effective retroactively for all PCS orders signed on or after October 1, 1995. Since Mr. McIver's PCS orders were signed on September 30, 1995, however, INS maintains that he must submit receipts to be reimbursed. ----------- FOOTNOTE ENDS ----------- Dep t Justice Supp., ch. 302, Relocation Allowances, pt. 302- 5.4(b)(1). The DOJ regulation quoted above serves as the basis for the agency's determination that claimant should not be reimbursed for meals and other expenses for which receipts have not been provided. Thus, on the record before us, the absence of receipts is the sole justification for denying Mr. McIver's claim for meal expenses for the period from October 20 through December 17, 1995.[foot #] 2 INS has not suggested that the expenses claimed do not reflect the actual costs of the meals consumed, nor has it asserted that the itemization provided on the expense records submitted is inadequate aside from the fact that receipts are not available. Mr. McIver has explained that because he was not informed or aware that he needed to keep receipts, or otherwise document his claim other than through the daily expense record, which he maintained and provided, he cannot submit any more detailed information now. As the Board has pointed out, "the purpose of the statute is to make Government employees whole for reasonable subsistence expenses they incur while occupying temporary quarters" incident to a move that is in the interest of the Government. Kevin S. Foster, GSBCA 13739-RELO, 97-1 BCA 28,688, at 143,294 (1996). The Board has previously decided a claim involving virtually identical facts and circumstances. William M. Walker, GSBCA 13891-RELO (Oct. 31, 1997). In Walker we observed that: In reviewing this claim, our task is to interpret and apply the relevant statutory provision, the implementing regulation set forth in the FTR, and DOJ's supplementary internal provision calling for receipts. Neither the statute nor the FTR, which has the force and effect of law, mandates receipts for meal expenses incurred by an employee on TQSE. Further, the instruction sheet accompanying the expense forms provided to claimant makes no mention of a requirement for receipts. Although DOJ's internal ----------- FOOTNOTE BEGINS --------- [foot #] 2 More commonly, internal agency regulations impose a requirement to keep receipts for items of individual expense exceeding some threshold amount, such as $25. See, e.g., _________ Kevin S. Foster, GSBCA 13739-RELO, 97-1 BCA 28,688 (1996). In _______________ such cases, the recovery has been limited to that threshold where receipts have not been retained but other acceptable evidence of the incurrence of actual costs has been provided by the claimant. We are not aware of any instance, however, where no recovery at all has been permitted when the employee has failed to keep receipts because of erroneous advice provided by the agency and there is no indication of fraud or deceit with respect to amounts claimed. ----------- FOOTNOTE ENDS ----------- regulation states that receipts are required for all expenses, it should not in these circumstances be construed to suggest that recovery of actual expenses is forfeited if receipts are not available. This interpretation is further corroborated by the agency's subsequent action in eliminating altogether the requirement for keeping receipts for meals while on TQSE with respect to moves authorized after September 1995. The Board has recently had occasion to address a claim for TQSE expenses in which a claimant's failure to maintain receipts or keep contemporaneous records of expenditures was similarly due not to lack of diligence on the employee's part but to the absence of accurate guidance from the agency. There, the Board stated: [I]t would be fundamentally unfair to hold the claimant to the rigorous standard normally applied in cases such as this. Given these circumstances, we do not consider the absence of the requisite documentation to be a fatal deficiency. There are in the record other persuasive indications that the amount sought does, in fact, represent actual costs associated with the claimant's TQSE. Stanley E. Rought, GSBCA 13687-RELO, slip op. at 4 (Aug. 15, 1997) (quoted in William M. Walker, GSBCA 13891-RELO (Oct. 31, 1997)). The expense records maintained by Mr. McIver meet the requirement of the FTR to provide an adequate itemization of expenses such that, even in the absence of receipts, the agency may properly review the expenditures made to determine if the costs are properly reimbursable and reasonable. INS has not yet considered these issues with respect to meals. This review function is one that must be exercised by the agency in the first instance. This holding does not prevent the agency from requesting further information (other than receipts) or confirmation from Mr. McIver to verify that expenditures in the amounts claimed were made for meals during the periods in question. Accordingly, we return this matter to INS for the performance of such a review. Mr. McIver should be reimbursed those amounts, within limits established by regulation, which the agency finds to have been actually and reasonably incurred by claimant or his spouse while on TQSE for the period from October 20 through December 17, 1995. ____________________________ CATHERINE B. HYATT Board Judge