______________________ January 14, 1998 ______________________ GSBCA 14294-RELO In the Matter of BARON L. HUDSON Baron L. Hudson, Richmond, VA, Claimant. G. Edward Hafling, Office of Counsel, Naval Ordnance Station, Department of the Navy, Louisville, KY, appearing for Department of the Navy. HYATT, Board Judge. Claimant, Baron L. Hudson, a civilian employee of the Defense Logistics Agency (DLA), was transferred from Louisville, Kentucky, to Richmond, Virginia. He appeals DLA's denial of his request for an extension of temporary quarters subsistence expenses (TQSE). Claimant contends that he experienced compelling and unanticipated problems obtaining a new residence because he was unable to sell his house in Louisville and, as a result, he could not afford to buy a house or arrange for other permanent quarters in Richmond. DLA denied the request for an extension of TQSE, reasoning that this is not the type of circumstance identified by applicable regulations as justifying such an extension. We conclude that DLA did not improperly deny claimant's request. Background Claimant transferred from Louisville, Kentucky, to Richmond, Virginia in May 1997. In conjunction with this relocation, claimant was authorized sixty days of TQSE. On August 13, 1997, approximately one week before the expiration of his authorized TQSE, Mr. Hudson wrote to the commanding officer at DLA in Louisville to request a thirty-day extension of TQSE. He stated in this letter that his house in Louisville was on the market but had not been sold because of the inability of prospective buyers to close. He further explained that he is financially unable to purchase a home in Richmond prior to selling the house in Kentucky. The situation had also been exacerbated by his spouse's inability to find employment in Richmond. The bottom line, according to claimant, was that without additional TQSE he could not carry the financial burden of a mortgage in Louisville plus the cost of housing in Richmond. The command responded by letter dated August 14, 1997, advising that the request for an extension of TQSE had been denied based on Joint Travel Regulations (JTR) paragraph C13004- A.2. This provision of the JTR sets forth guidelines for when the agency may extend TQSE.[foot #] 1 DLA noted that the inability to sell a house at the old duty station is not among the factors, or types of factors, that would justify an extension of TQSE. Discussion Employees who are "transferred in the interest of the Government from one official station or agency to another for permanent duty" are to be reimbursed for certain expenses incident to the transfer. These expenses include "[s]ubsistence expenses of the employee and his immediate family for a period of sixty days while occupying temporary quarters when the new official station is located within the United States." Reimbursement of TQSE may be extended for an additional sixty days if the head of the agency concerned or his designee determines that there are compelling reasons for the continued occupancy of temporary quarters. 5 U.S.C. 5724a(a)(3) (1994). The payment of expenses of relocation is also subject to the provisions of the Federal Travel Regulation (FTR), which implements the provisions of the statute. With respect to extensions of TQSE, the applicable FTR provisions in effect at the time of claimant's relocation provide as follows: [The] agency may authorize [the relocating employee] to claim actual TQSE in 30-day increments, not to exceed 60 consecutive days. However, if [the] agency determines that there is a compelling reason for [the employee] to continue occupying temporary quarters after 60 consecutive days, it may authorize an extension of up to 60 additional consecutive days. Under no circumstances may [the relocating employee] be authorized to claim actual TQSE reimbursement for more than a total of 120 consecutive days. 41 CFR 302-5.104 (1997). ----------- FOOTNOTE BEGINS --------- [foot #] 1 By directive dated January 5, 1998, chapter 13 of the JTR was revised, generally to take effect on December 17, 1997. The referenced guidelines now appear as paragraph C13115.B. ----------- FOOTNOTE ENDS ----------- A "compelling reason" is an event that is beyond [the relocating employee's] control and is acceptable to [the] agency. Examples i n c l u d e , b u t a r e n o t l i m i t e d t o : (a) Delivery of [the employee's] household goods to [the] new residence is delayed due to strikes, customs clearance, hazardous weather, fires, floods or other acts of God, or similar events. (b) [The employee] cannot occupy the new permanent residence because of unanticipated problems (e.g., delay in settlement on the new residence, or short-term delay in construction of the residence). [The employee is] unable to locate a permanent residence which is adequate for [his/her] family's needs because of housing conditions at [the] new official station. (d) Sudden illness, injury or death of employee or immediate family member. 41 CFR 302-5.105.[foot #] 2 Under the statute as implemented by regulation, the decision to grant an extension of TQSE is committed to the discretion of the agency within the stated limitations set forth. Here, claimant's principal reason for seeking an extension of TQSE is his inability to sell the home at the prior residence, which poses a financial hardship for his family and has prevented him from obtaining a mortgage on a home in the Richmond area. The examples set forth in the regulation involve events over which the employee had no say and which either were catastrophic or essentially affected the physical availability of permanent housing at the new PDS. In a recent decision, the Board, discussing rulings issued by the General Accounting Office (GAO), specifically noted that the fact that an employee cannot obtain a mortgage at the new duty station prior to selling the house at the former duty station was, by itself, not regarded by GAO to be the type of "compelling circumstance" contemplated by the regulation and the examples therein. Roland J. Landis, GSBCA 13690-RELO, 97-2 BCA 29,157; Blanch Brown, B-260580 (Nov. 13, ----------- FOOTNOTE BEGINS --------- [foot #] 2 The pertinent provisions of the JTR, which are applicable to civilian employees of the Department of Defense, essentially restate the FTR. ----------- FOOTNOTE ENDS ----------- 1995); Michael F. Locke, B-221751 (July 11, 1986). In Landis, the claimant's wife was injured during the initial 60-day period of TQSE and claimant encountered delays in selling the house at the prior duty station; the Board concluded that the agency's denial of an extension of TQSE was not an abuse of discretion. Mr. Hudson urges that regardless of the wording and prior interpretations of the regulations, an exception should be made for his situation, in which great financial hardship is suffered by the relocating employee who has difficulty selling the house owned at the old duty station and whose spouse has had difficulty obtaining employment at the new location. As we stated above, the granting of an extension of TQSE is a decision with respect to which the agency holds considerable discretion. Although the regulation does not appear to preclude the agency from granting an extension under the circumstances described by claimant, neither does it require the agency to extend the time for TQSE. The Board has no authority to override a permissible exercise of agency discretion, particularly one that is consistent with prior precedent. Since we find that the agency permissibly exercised its discretion in determining that it would not extend the TQSE period, we deny the claim. _____________________________ CATHERINE B. HYATT Board Judge