Board of Contract Appeals General Services Administration Washington, D.C. 20405 May 27, 1998 GSBCA 14506-RELO In the Matter of RIFAT A. AJJURI Rifat A. Ajjuri, Madison, AL, Claimant. Robert H. Garfield, Chief, General Law Division, United States Army Aviation and Missile Command, Redstone Arsenal, AL, appearing for Department of the Army. DANIELS, Board Judge (Chairman). Effective July 1, 1997, the United States Army Aviation and Troop Command (ATCOM) transferred Rifat A. Ajjuri, a civilian employee of the command, from St. Louis, Missouri, to Huntsville, Alabama. Mr. Ajjuri was assigned to the Army's newly-established Aviation and Missile Command (AMCOM). The orders authorized him to receive, in connection with this move, temporary quarters subsistence expenses (TQSE) for up to sixty days. The employee later asked that he be allowed an additional sixty days of TQSE. The agency denied his request, and he asked us to review this determination. Because the approval of TQSE beyond the initial sixty-day period is within the discretion of the agency, and the Army's determination was not arbitrary, capricious, or contrary to law, we do not disturb the decision. Background The Army issued permanent change of station orders for this reassignment to Mr. Ajjuri on March 6, 1997. The orders allowed the employee to make a househunting trip of as many as ten days to Huntsville, at the Government's expense, in advance of the move. For two reasons, Mr. Ajjuri chose not to make such a trip. First, he taught at a college to supplement his income, and he was not able to cancel his classes so as to allow time for a visit to Huntsville. Second, he did not want to take his four children out of school, and he was unable to find a person he considered reliable to care for them while he was gone. Instead of traveling to Alabama himself, he engaged a real estate agent there to search for a home that he could afford and which would meet his family's needs. The agent looked, and reported regularly on her progress, but was unable to find an appropriate house. Once in Huntsville, Mr. Ajjuri and his wife spent two weeks "vigorously" looking for an existing home. They could not find one they considered acceptable. Consequently, they entered into a contract for the construction of a new house, at a cost of nearly $160,000. The house was completed, and the family moved into it, in November. Mr. Ajjuri asked the Army to increase the authorized period of TQSE from sixty to 120 days, so that he could continue to receive benefits throughout most of the time his family was living in temporary quarters. The agency denied the request, and upon his appeal, the commanding general confirmed the denial. Discussion Statute prescribes that when an agency transfers an employee from one permanent duty station to another in the interest of the Government, the agency must pay to or on behalf of the employee subsistence expenses the employee and his immediate family incur while occupying temporary quarters, for a period of up to sixty days. (Alternatively, but not of relevance here, the agency may pay a fixed daily amount for subsistence expenses.) 5 U.S.C. 5724a(c)(1) (West Supp. 1997). The sixty-day period "may be extended for up to an additional 60 days if the head of the agency concerned or the designee of such head of the agency determines that there are compelling reasons for the continued occupancy of temporary quarters." Id. 5724a(c)(2). The regulation which implements this statute, the Federal Travel Regulation (FTR), explains that "[a] 'compelling reason' is an event that is beyond [the employee's] control and is acceptable to [his] agency." 41 CFR 302-5.105 (1997). The Joint Travel Regulations (JTR), which supplement the FTR with applicability to civilian employees of the Department of Defense, are to like effect. JTR C13004A.2 (Aug. 1, 1995). Because statute and regulation make the grant of additional time in which an employee may receive TQSE contingent on the existence of "compelling reasons" for the continued occupancy of temporary quarters, and afford an agency broad discretion in deciding whether such reasons are present, we will not overturn an agency's determination as to an extension of the period unless we find it to have been arbitrary, capricious, or contrary to law. Daniel A. Rishe, GSBCA 14444-RELO (Mar. 24, 1998) (and cases cited therein); Baron L. Hudson, GSBCA 14284-RELO, 98-1 BCA 29,527. The FTR gives four examples of events which are beyond an employee's control and may be acceptable to an agency as a compelling reason for extending the TQSE period. One of the events is "[the employee is] unable to locate a permanent residence which is adequate for [his] family's needs because of housing conditions at [his] new official station." 41 CFR 302-5.105. Mr. Ajjuri asserts that he should have been authorized to receive TQSE for more than sixty days because he was forced to remain in temporary quarters because of this precise circumstance. As supporting evidence, he cites the unsuccessful efforts of his real estate agent, and later his wife and himself, to locate an existing residence which he considered adequate for his family's needs. The agency initially rejected Mr. Ajjuri's request because the Ajjuris' "home was not guaranteed to be completed within the initial allotment of TQSE." We can appreciate the claimant's frustration upon reading this decision; the basis is completely unrelated to the justification he had presented. On review, however, the commanding general of AMCOM has developed a thoughtful rationale for the denial. The general explains that ATCOM issued reassignment orders several months in advance of this transfer (and others) to allow employees plenty of time to find appropriate housing before they moved, and thereby to limit time in temporary quarters and concomitant TQSE. Had the claimant taken advantage of the offer of a househunting trip, he might have been able to make a housing decision earlier. Mr. Ajjuri's choice not to take such a trip was understandable, but had consequences of the claimant's own making. Further, according to the general's staff, AMCOM commissioned a study of the housing market in the Huntsville area, and the study showed that while a shortage of available apartments existed, and a shortage of recently-constructed houses priced at no more than $120,000 may have as well, there was no shortage of more expensive houses, such as the one the Ajjuris contracted to have built for them. The statements of the commanding general and his staff provide a rational basis for the agency's determination that permanent residences which were adequate for the needs of Mr. Ajjuri's family existed in Huntsville at the time of his transfer. See Luis Flores, GSBCA 13977-RELO, 97-1 BCA 28,928. Although the facts as presented by the claimant could have justified a contrary conclusion, they could as reasonably (when combined with the agency's study) support a finding that Mr. Ajjuri's real estate agent and the Ajjuris themselves simply were unable to find the sort of housing for which they were searching, or that their view of "adequate" might be seen by another observer as "superior." Further, even if we accept Mr. Ajjuri's assertion as to the lack of adequate housing, the agency's suggestion that he could have remedied the problem by making an early househunting trip and arranged at that time for the construction of a new home is creditable. In a situation like this one, where the agency rationally could have either approved or denied a request for an extension of TQSE benefits, we accede to the agency's determination. Decision We consequently deny the claim. _________________________ STEPHEN M. DANIELS Board Judge