Board of Contract Appeals General Services Administration Washington, D.C. 20405 March 25, 1998 GSBCA 14483-RELO In the Matter of PATRICIA A. TOBIN Patricia A. Tobin, Chesapeake, VA, Claimant. Judy Hughes, Travel Policy, Defense Finance and Accounting Service, Columbus Center, Columbus, OH, appearing for Department of Defense. DANIELS, Board Judge (Chairman). The Department of the Navy transferred civilian employee Patricia A. Tobin from Philadelphia, Pennsylvania to Portsmouth, Virginia in July 1996. Before Ms. Tobin moved to Virginia, she received an offer to purchase her house in the Philadelphia area, contingent on the sale occurring prior to July 1. Agency employees advised her that if she accepted this offer and rented the house from the new owners for the few weeks before moving to Virginia, the agency would reimburse her for the temporary quarters subsistence expenses (TQSE) she and her family incurred during that time. She relied on this advice, selling the home and renting it back for the last twenty-eight days she resided in Pennsylvania. Subsequently, the Defense Finance and Accounting Service determined that this payment was impermissible under the Federal Travel Regulation (FTR). Ms. Tobin has asked that we decide whether she is entitled to receive the TQSE she was promised. The law is clear. TQSE may be paid only for days during which a transferred employee is "occupying temporary quarters." 5 U.S.C. 5724a(a)(3) (1994).[foot #] 1 At the time of Ms. Tobin's move, the regulation which implements this statute, the FTR, provided that "the term temporary quarters ----------- FOOTNOTE BEGINS --------- [foot #] 1 This 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 restriction in question now appears at 5 U.S.C.A. 5724a(c)(1)(A) (West Supp. 1997). ----------- FOOTNOTE ENDS ----------- refers to lodging obtained from private or commercial sources for the purpose of temporary occupancy after vacating the residence occupied when the transfer was authorized." 41 CFR 302-5.2(c) (1996) (emphasis added). Because, prior to the time Ms. Tobin and her family left the Philadelphia area, they did not vacate the residence they occupied when her transfer was authorized, the agency may not pay Ms. Tobin TQSE for that period of time. Randall L. Thurman, GSBCA 14067-RELO, 97-2 BCA 29,160; Karl A. Hoglund, GSBCA 13716-RELO, 97-1 BCA 28,716 (1996). That Navy Department personnel advised Ms. Tobin to the contrary, and that she relied on their representations, are facts which are of no legal significance. The courts have consistently held that the Government may not spend money in violation of statute or regulation. Kevin S. Foster, GSBCA 13639-RELO, 97-1 BCA 28,688 (citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)). Thus, although in one sense the result of this case may seem inequitable -- the claimant may not be paid money which agency employees assured her would be forthcoming -- in another sense it is not -- the taxpayers' interest in having only lawful disbursements made from their funds is protected.[foot #] 2 _________________________ STEPHEN M. DANIELS Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 We note that since Ms. Tobin moved to Virginia, the portion of the FTR dealing with TQSE has been completely rewritten, for application to employees whose effective date of transfer is on or after March 22, 1997. 62 Fed. Reg. 13,756-60 (1997). The term "temporary quarters" now means simply "lodging obtained for the purpose of temporary occupancy from a private or commercial source." 41 CFR 302-5.1 (1997). The portion of the former definition limiting such quarters to those occupied "after vacating the residence occupied when the transfer was authorized" has been eliminated. The Joint Travel Regulations, which supplement the FTR with application to civilian employees of the Department of Defense, have been similarly modified. Compare JTR _______ C13000 (Mar. 1, 1996) with JTR C13100 (Mar. 1, 1998). The ____ authors of these regulations have provided no explanation of why they have modified the definition of "temporary quarters." Is this modification a substantive change, making an employee who transfers today eligible for TQSE if he sells his residence and rents back the house from the new owner during his last days at his old duty station instead of staying at a hotel? The answer is beyond the scope of this case. It will have to await either a case posing this question or an explanatory statement (or supplemental modification to the regulation) by the regulation writers.