Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________ August 30, 1999 ________________________________ GSBCA 14887-RELO In the Matter of FRANCES E. AUSTIN Frances E. Austin, Fayetteville, NC, Claimant. Sara L. Morgan, Director of Civilian Personnel, Civilian Personnel Advisory Center, Department of the Army, Fort Bragg, NC, appearing for Department of the Army. WILLIAMS, Board Judge. Claimant, Frances E. Austin, a civilian employee of the Department of the Army (Army), seeks a sixty-day extension of her temporary quarters subsistence expense (TQSE) allowance in conjunction with her permanent change of station from Fort Clayton, Panama, to Fort Bragg, North Carolina. Claimant requested an extension of the TQSE period because of the unavailability of suitable housing in the Fayetteville area (where Fort Bragg is located) and the delay in receiving her personal belongings and household goods. The agency denied the request on the ground that it is not required to extend claimant s TQSE period, citing downsizing and budgetary constraints. We conclude that the agency permissibly denied claimant s request. Background On October 15, 1998, claimant, an employee relations specialist, was authorized to relocate to Fort Bragg, North Carolina, from Fort Clayton, Panama. Claimant was notified that her TQSE was approved for a sixty-day time period, expiring at midnight, December 27, 1998. On December 18, 1998, claimant requested a thirty-day extension of her TQSE because she had problems locating permanent quarters in Fayetteville, North Carolina, that would meet her family's needs. Claimant explained that she is the only income- producing member of a family with four children, one of whom is handicapped and cannot share a bedroom. Claimant finally located a suitable home, but due to the timing of the negotiations, did not expect to close on the property until after the initial sixty-day extension period had expired. On December 22, 1998, claimant s request for an extension of her TQSE was denied, and on January 7, 1999, claimant requested reconsideration. Claimant explained that her personal belongings and household goods had been scheduled to arrive in Charleston, South Carolina, on December 21, 1998, but she had not received them. On January 11, 1999, claimant and her family moved into a rental unit that accommodated their needs, and they received their household goods on January 19, 1999. The agency denied claimant s request for an extension of TQSE, reasoning: Although the JTR [Joint Travel Regulations] does allow an agency to extend TQSE in circumstances considered beyond the employee s control, it does not mandate that the agency do so. In this time of downsizing and leaner budgets there is simply no room for allowances beyond those mandated by law. Discussion Statute provides that when an employee is transferred in the interest of the Government from one official station to another for permanent duty, the Government may reimburse the employee for certain expenses, including: actual subsistence expenses of the employee and the employee's immediate family for a period of up to 60 days while the employee or family is occupying temporary quarters when the new official station is located within the United States." 5 U.S.C. 5724a(c)(1)(A). (Supp. III 1997). Federal Travel Regulation (FTR) 302-5.6 states: Must my agency authorize payment of a TQSE allowance? No, your agency determines whether it is in the Government's interest to pay TQSE. 41 CFR 302-5.6 (1998). Similarly, the FTR allows, but does not require, an agency to extend the TQSE allowance. Thus, both an initial grant of TQSE allowance and any extension of that allowance are left to the agency's discretion. FTR 302-5.104 provides, in pertinent part: "If your agency determines that there is a compelling reason for you to continue occupying temporary quarters after sixty consecutive days, it may authorize an extension of up to sixty additional consecutive days." Id. 302-5.104 (emphasis added). This regulation requires an agency to identify a compelling reason which meets the regulatory definitions in FTR 302-5.105 in order to authorize an extension of TQSE.[foot #] 1 However, even if the agency accepts an articulated reason as compelling, the regulation still entrusts the head of the agency with the discretion to decline to extend the TQSE allowance. As we have consistently recognized, the agency has "broad discretion" in determining whether an extension of TQSE allowance is appropriate. We will not overturn an agency's determination as to such an extension unless we find it to have been arbitrary, capricious, or contrary to law. E.g., Riffat A. Ajjuri, GSBCA 14506-RELO, 98-2 BCA 29,788 (citations omitted); Luis Flores, GSBCA 13977-RELO, 97-1 BCA 28,928 (citing Blanch Brown, B-260580 (Nov. 13, 1995); Connie Tharp Holmquist, B-255603 (Feb. 10, 1994)); see also Baron L. Hudson, GSBCA 14294-RELO (Jan. 14, 1998) ("The granting of an extension of TQSE is a decision with respect to which the agency holds considerable discretion."); Larry E. Olinger, GSBCA 14566-RELO, 98-2 BCA 29,877 ("Although we might not have made the same decision the agency made regarding [claimant's] request, we cannot say that the agency's choices were arbitrary, capricious or clearly erroneous."). Here, the agency did not dispute that claimant's situation may have presented a compelling reason to continue the TQSE allowance. Rather, the agency declined to extend TQSE because of fiscal difficulties due to downsizing. We cannot conclude that the agency's failure to authorize such an extension was arbitrary, capricious, or an abuse of discretion. Cf. Holly Rowe, GSBCA 14037-RELO, 97-1 BCA 28,934 (reversing agency decision based on an erroneous legal conclusion that the claimant's one-year verbal lease was not binding due to the statute of frauds). Nothing in the applicable regulations precludes the denial of an extension based on legitimate business concerns such as downsizing and related budgetary constraints. The agency s decision is not arbitrary, capricious, or contrary to law. Decision Claimant s request for an extension of her TQSE period is denied. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Section 302-5.105 of the FTR defines a "compelling reason" as an event that is beyond the employee's control and is acceptable to the agency, and it provides examples of compelling reasons that would warrant an extension of an employee s TQSE period. 41 CFR 302-5.105. Examples include, but are not limited to: You (the employee) are unable to locate a permanent residence which is adequate for your family s needs because of housing conditions at your new official station. ----------- FOOTNOTE ENDS ----------- ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge