Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ October 29, 1999 _______________________________________________ GSBCA 15029-RELO In the Matter of STEPHEN A. MONKS Stephen A. Monks, Springfield, VA, Claimant. Edgardo Aviles, Travel Team Leader, United States Customs Service, Department of the Treasury, Indianapolis, IN, appearing for Department of the Treasury. GOODMAN, Board Judge. Claimant, Stephen A. Monks, is an employee of the United States Customs Services. He has requested review of the agency s denial of his claim for temporary quarters subsistence expenses (TQSE) arising from his permanent change of station (PCS). Factual Background Claimant was authorized a transfer from San Antonio, Texas to Washington, D.C. in April 1998. He received a travel advance of $5400. On August 3, 1998, claimant signed a one-year lease for a rental townhouse at his new duty station and moved his household goods (HHG) into the townhouse. At present he still occupies that townhouse but is attempting to purchase a new home. Claimant submitted a travel voucher claiming $5503 for TQSE. On March 31, 1999, the agency issued a memorandum which read in pertinent part: Your claim for Temporary Quarters has been denied. Based on your actions of signing a one-year lease, moving your household goods into your residence, and an unclear attempt to obtain other quarters in an immediate time frame, no Temporary Quarters is reimbursable. The agency therefore directed claimant to return the $5400 travel advance. Claimant then requested this Board to review the agency s denial of his claim. The agency responded to claimant s request for review as follows: Customs disallowed Mr. Monks claim because the non- temporary character of his occupancy was contrary to the conditions and requirements established under the Federal Travel Regulation (FTR). . . . The FTR allows the reimbursement of TQSE based on factors such as the duration of the lease, movement of household effects into the quarters, the type of quarters, the employee s expressions of intent and attempts to secure a permanent dwelling (FTR 302-5.305). Additionally, these FTR criteria have been consistently applied in previous decisions from the Comptroller General. (See: Johnny M. Jones, 63 Comp. Gen. 531 (1984)). Mr. Monks stated that his wife s pregnancy and continued related illness caused him to curtail his house-hunting trip and move into a small townhouse temporarily, pending the birth of the baby. However, Mr. Monks execution of the 1 year lease and his intent to purchase a home at some time in the future did not change the non-temporary nature of his occupancy so as to permit reimbursement under the rule stated in the FTR. Claimant states that despite the fact that he signed a one- year lease for the townhouse, it was his expressed intent at the time of his transfer that the townhouse would be temporary and that he was searching for a larger home. He described his situation as follows. At the time of his transfer, his wife was three weeks pregnant with their second child and suffering from morning sickness. They planned a ten-day house hunting trip to the Washington area and arranged for their three-year-old daughter to stay with relatives. His wife was ill during the plane ride, and remained ill during the house hunting, which had been prearranged with a realtor. After four days of house hunting, claimant and his wife decided to return home, as she was unable to look for a house. The realtor suggested moving into a townhouse temporarily, and they reluctantly agreed. The townhouse they rented was approximately half the size of their previous home at the old duty station. When the HHG arrived, the couple stored them in every conceivable spare space. Claimant has supplied pictures to show the cramped quarters. Claimant and his wife continued to be in contact with the realtor with the intent of finding a permanent home of a size similar to the one that they had at the old duty station. Because of the difficulty of his wife s pregnancy, they could not consider moving until the baby was born. They are now actively seeking to buy a home. They seek the costs incurred only during the original 120 days authorized for TQSE. They are reluctant to commit to the purchase of a home until a determination is made as to his claim for TQSE. Discussion The payment to a transferred employee of subsistence expenses while occupying temporary quarters is authorized by 5 U.S.C. 5724(a)(3) (Supp. III 1997). Section 302-5.1 of the Federal Travel Regulation provides that the term "temporary quarters" refers to lodging obtained from private or commercial sources for the purpose of occupying it temporarily. A determination as to what constitutes temporary quarters is not susceptible of any precise definition, and that the determination must be based upon the facts and circumstances involved in each case. The determination as to whether the quarters were initially temporary in nature is based on the intent of the employee at the time he moves into the dwelling. Kim R. Klotz, GSBCA 13648-RELO, 97-1 BCA 28,789. Factors to be considered in determining that intent include the duration of the lease, movement of household effects into the quarters, the type of quarters, the employee's expressions of intent, attempts to secure a permanent dwelling, and the length of time the employee occupies the quarters. 41 CFR 302-5.305. Generally, the execution of a one-year lease for a dwelling by an employee at his new duty station is a clear indication that the employee intends to occupy the rented quarters on other than a temporary basis. However, it is necessary to examine the remaining factors in order to ascertain the intent of the employee at the time he initially occupied the quarters. Thus, the one-year lease does not necessarily disqualify claimant from reimbursement of TQSE. Paul E. Dyer, 13802-RELO, 97-1 BCA 28,936. In this case, while claimant leased an apartment for one year, he did so because it was the only available housing that he could find, given the short time for the house hunting trip, as the result of his wife s pregnancy and resulting illness. With regard to the nature of the dwelling, the townhouse that was leased was only half as large as the house he had vacated at his old duty station, and was not the type of dwelling that he expressed an interest in purchasing on his house hunting trip. It is clear from claimant s submission that his expressed intent at the time of moving into the townhouse was to occupy it temporarily. As his wife was pregnant, and an additional family member was expected, the townhouse was not of sufficient size. Also, the movement of HHG into a dwelling is not by itself determinative, but is only one of the factors to be considered. Claimant states that the HHG were stored in every conceivable space of the cramped quarters. The pictures he has supplied graphically demonstrate the temporary nature of the storage of the HHG. In Carl J. Zulick, 67 Comp. Gen. 585 (1988), where the employee moved his household goods into a residence but never unpacked most of them, the Comptroller General held that fact did not warrant a conclusion of intent to occupy permanently. We believe that conclusion applies equally well to claimant in this case. See also Michael P. Callahan, B-246279 (June 9, 1992). The fact that claimant remains in the townhouse is also not persuasive, as claimant has stated that he requires a determination as to whether he must reimburse the Government for his relocation advance before he can commit to a down payment on a new home. Thus, despite the one-year lease, we are persuaded that claimant intended the townhouse to be only a temporary residence until he could find a suitable house for his family. Decision Claimant s claim is granted. He is entitled to reimbursement of TQSE expenses for the time period authorized in his travel orders. The agency should review the travel voucher and reimburse such costs as are permissible under statute and regulation. ________________________ ALLAN H. GOODMAN Board Judge