Board of Contract Appeals General Services Administration Washington, D.C. 20405 May 28, 1998 GSBCA 14522-RELO In the Matter of MICHAEL T. HORAN Michael T. Horan, Huntsville, 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. GOODMAN, Board Judge. Claimant, Michael T. Horan, a civilian employee of the Department of the Army, seeks reimbursement of temporary quarters subsistence expenses (TQSE) in connection with his permanent change of station (PCS) relocation. Claimant incurred the expenses after the expiration of the TQSE period authorized by his travel orders. Claimant requested an extension of the TQSE period because he was unable to sell his house at his old station before the expiration of the original sixty-day period. The agency denied the request, reasoning that claimant had not shown a compelling reason for an extension of the TQSE period. Claimant then filed a claim at this Board. We conclude the agency permissibly denied claimant's request. On April 12, 1997, claimant was issued travel orders for his PCS move from the United States Army Aviation and Troop Command (ATCOM) in St. Louis, Missouri, to the new Aviation and Missile Command (AMCOM) in Huntsville, Alabama. The agency authorized claimant fifty days of TQSE and ten days for househunting for a combined total of sixty days. 2 Claimant explains his situation as follows: After my notification of transfer I put my house on the market. On May 27, 1997 I received a contract on my home which I accepted on 29 May 1997 with closing to be on 8 July 1997. . . . I left for my house-hunting trip on 12 June 1997 for 10 days. After an extensive search I found a house in the town of Ardmore, Al. that would meet my needs and at a price I could afford. I entered into a contract on 20 June 1997 with a closing date of 5 August 1997. This was contingent on selling my house in St. Louis. This was within my 60 days of TQSE. I also made arrangements to have my household goods picked up on 25 June 1997. On 27 June 1997 I was informed that the people had lost their financing but were still trying. This finally fell through which would put me in danger of loosing [sic] the house in Ardmore. On 22 June 1997 I was in an auto accident in which the vehicle I was driving was totaled. I asked for an extension in my report date where I could stay with the same doctor. This was approved. Approvals of this also put me over my sixty days. I also received another contract on my house on 10 July 1997, which was to close on 8 August 1997. At the same time I was trying to secure financing for the house in Huntsville since my house in St Louis had not sold. An agreement between the buyer and myself could not be reached so the sale in St. Louis fell through. After two more trips to Huntsville I finally found a house that I could get into with the down payment I had. I viewed the house on or about 13 August 1997 but the owners did not sign[ ] till 15 August 1997, closing was to be on 26 August 1997, this was my report date. My furniture could not be delivered till 4 September 1997. Anticipating that he would close on the sale of his residence in St. Louis on July 8, 1997, claimant vacated his house on June 25, 1997, and began his initial TQSE period on that date. He moved to Huntsville still owning the house in St. Louis. On August 11, 1997, claimant requested an extension of TQSE. The agency's Civilian Personnel Office denied the request on September 26, 1997, citing the Department of Defense's (DoD's) Joint Travel Regulations (JTR), which are applicable to DoD civilian employees, allowing TQSE extensions only in situations where there is a demonstrated need for additional time due to circumstances beyond the employee's control occurring during the initial sixty-day period. JTR C13004-A.2. He received his 3 furniture on September 4, 1997, and requested an extension of the TQSE period when it expired at the end of August 1997. We set out the applicable law in previous decisions, including Michael E. Perez, GSBCA 14412-RELO, 98-1 BCA 29,608, and Baron L. Hudson, GSBCA 14284-RELO, 98-1 BCA 29,527. In those decisions, we explained that: 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 [up to] sixty days while occupying temporary quarters when the new official station is located within the United States." Reimbursement of TQSE may be extended for [up to] 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).[[foot #] 1] 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 This statute was amended, with applicability to transfers with effective dates on or after March 22, 1997. Pub. L. No. 104-201, 1712, 110 Stat. 2752, 2753 (1996). The provision now appears at 5 U.S.C.A. 5724a(c)(2) (West Supp. 1998). ----------- FOOTNOTE ENDS ----------- 4 A "compelling reason" is an event that is beyond [the relocating employee's] control and is acceptable to [the] agency. Examples include, but are not limited to: (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). (c) [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. 98-1 BCA 29,608, at 146,747-48; id. 29,527, at 146,415-16. The JTR is substantially similar, except that TQSE is not authorized in thirty-day increments, but initially may be authorized for a period not to exceed sixty calendar days. The JTR provide that subsistence expenses beyond the initial TQSE period "may be allowed for an additional period of time not to exceed 60 consecutive days provided the head of the DOD component concerned or his/her designee, determines there are compelling reasons for the continued occupancy of temporary quarters." JTR C13004-A.2; see Thomas Potts, GSBCA 13700-RELO, 97-1 BCA 28,938. The JTR require that the employee justification and subsequent administrative approval be in writing. "When an additional period of TQSE allowance is allowed, written justification and documentation must be provided . . . ." JTR C13004-A.2. The employee must provide the approving official with a written justification which describes circumstances demonstrating a need for additional time in temporary quarters that occurred during the initial sixty-day period of temporary quarters occupancy and that are clearly shown to be beyond the employee's control. JTR C13004-A.3. "The justification accompanied by documentation from the approving official indicating his/her reasons for approving or denying the requested 5 extension will be retained in a management file and be available for review." Id. The agency did not find compelling claimant's allegations concerning his medical condition arising from an automobile accident. Claimant alleges he was injured on either June 22 or July 22, 1997. Both dates appear in the record. He requested that his report date at the new duty station be extended from August 5 to August 26, and approval was granted. However, the accident did not prevent him from obtaining a new residence in Huntsville, as he alleges he made two more househunting trips, and further delays resulted because of his inability to sell his residence in St. Louis. In Baron L. Hudson, we concluded that the agency permissibly exercised its discretion in refusing to extend an employee's authorized TQSE period although the employee encountered difficulties in selling a residence at the old station. Similarly, in the instant matter, the agency found that claimant's inability to sell his residence at his old station was not a compelling reason and denied an extension of the TQSE period. We cannot say that the agency abused its discretion in this matter in denying the extension. ________________________ ALLAN H. GOODMAN Board Judge