Board of Contract Appeals General Services Administration Washington, D.C. 20405 March 24, 1998 GSBCA 14444-RELO In the Matter of DANIEL A. RISHE Daniel A. Rishe, Winchester, VA, Claimant. Gary D. Johnson, Chief Financial Officer, Federal Emergency Management Agency, Washington, DC, appearing for Federal Emergency Management Agency. DANIELS, Board Judge (Chairman). In September 1995, the Federal Emergency Management Agency (FEMA) directed employee Daniel A. Rishe to change his permanent duty station from Colorado to Virginia. The agency authorized payment of temporary quarters subsistence expenses (TQSE) for sixty days and expenses of temporary storage of household goods for ninety days in connection with the move. Mr. Rishe later asked FEMA to double the periods of time for which reimbursement of these expenses would be allowed. The agency denied his request. The employee now asks that we review the agency's decision. All events relevant to this claim occurred in 1996. Mr. Rishe began work in Virginia early in the year. He sold his house in Colorado in September and put his household goods into storage at that time. His family moved to Virginia in October. He and his wife then searched for a permanent home; failing to find one they considered suitable, they decided to have a house built for them. The Rishes signed a contract for construction of a new home, and in December, they received "financial pre- approval." Mr. Rishe did not begin to claim TQSE until his family had arrived in Virginia. In December, he asked the agency to authorize additional time for TQSE and storage costs. We consider the two elements of this claim separately. An agency may allow a second sixty-day period of TQSE "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).1 The Federal Travel Regulation (FTR), which implements this statute, provided, "Extensions of the temporary quarters period may be authorized only in situations where there is a demonstrated need for additional time due to circumstances which have occurred during the initial 60-day period of occupancy and which are ____________________ 1This statute was amended by the Federal Employee Travel Reform Act of 1996, Pub. L. No. 104-201, 1711-12, 110 Stat. 2752, 2753 (1996). The quoted provision survives, with minor modifications, at 5 U.S.C.A. 5724a(c)(2) (West Supp. 1997). determined to be beyond the employee's control and acceptable to the agency." 41 CFR 302-5.2(b)(2) (1996).2 The regulation lists four examples of "compelling reasons." All of them pertain to unforeseeable events; one, for instance, is "New permanent residence cannot be occupied because of unanticipated problems (delays in settlement on new residence, short term delay in construction of a new residence, etc.)." Id. An agency's determination regarding extension of the TQSE period is an exercise of discretion. We will not overturn such a determination unless we find it to have been arbitrary, capricious, or contrary to law. William T. Stowers, GSBCA 14099-RELO, 97-2 BCA 29,096; Holly Rowe, GSBCA 14037-RELO, 97-1 BCA 28,934. FEMA rejected Mr. Rishe's claim for a doubling of his TQSE period on the ground that he remained in temporary housing as a consequence of circumstances within his control -- the decision to build a new home, rather than purchase an existing residence. This sort of decision is a very different circumstance from the kind of unexpected, short-term problem which the FTR identifies as justification for extension of the period. The agency's distinction of the two situations was reasonable, not arbitrary, capricious, or contrary to law. We therefore do not disturb it. Robert R. Burns, GSBCA 13848-RELO, 97-1 BCA 28,875. The time allowable for temporary storage of an employee's household goods in connection with a transfer is governed by another provision of the FTR, 41 CFR 302-8.2(d) (1996). This provision states that "upon an employee's written request, the initial 90-day period may be extended an additional period not to exceed 90 days under certain conditions if approved by the agency head or his/her designee." One of the examples given as justification for extension of this period is "[c]ompletion of residence under construction." FEMA rejected Mr. Rishe's request for ninety more days of reimbursement of storage costs on the ground that "the need for an extension on household goods storage appears to be in connection with TQSE." This linkage of the two varieties of expense reimbursement does not appear in either statute or regulation. To the contrary, by setting different time periods for TQSE and storage costs, and different tests for when those periods should be extended, the FTR appears to deny such a linkage. FEMA was not compelled to refuse additional time for storage costs simply because it declined to extend the time for TQSE. The agency should reconsider its position on Mr. Rishe's storage costs in light of the relevant regulatory provision, including the express authorization to extend the time for reimbursement of such costs due to "[c]ompletion of residence under construction." _________________________ ____________________ 2The FTR no longer requires that the "compelling reason" relate to "circumstances which have occurred during the initial 60-day period of occupancy." 41 CFR 302-5.104, -5.105 (1997). The latest version of the regulation does not apply to Mr. Rishe's claim, however, because his effective date of transfer was earlier than March 22, 1997. 62 Fed. Reg. 13,756 (1997). STEPHEN M. DANIELS Board Judge