________________ November 6, 1997 ________________ GSBCA 13815-RELO In the Matter of PAUL W. JOHNSON Paul W. Johnson, Huntsville, AL, Claimant. John H. Beall, Deputy Chief Financial Officer for Finance, Lyndon B. Johnson Space Center, Houston, TX, appearing for National Aeronautics and Space Administration. NEILL, Board Judge. Claimant in this case, Paul W. Johnson, is an employee of the National Aeronautics and Space Administration (NASA). He asks that we review NASA's ruling on his requests for various relocation costs said to have been incurred in conjunction with his transfer back to the United States from a NASA duty station in Moscow, Russia. We dismiss a portion of the claim and grant in part the remaining portion of it. Background On July 27, 1994, claimant was authorized a permanent change of station move from Huntsville, Alabama to NASA's Space Station Program in Moscow, Russia. Mr. Johnson states that on March 15, 1995, shortly before his scheduled departure from Moscow for his wedding in the United States, he was told for the first time that the agency had decided to transfer him to a new permanent work station in the United States. On March 17, 1995, Mr. Johnson was married in Huntsville, Alabama. He contends that shortly thereafter, on March 19, he telephoned his NASA office in Moscow and received confirmation of his transfer. The record is unclear concerning the reason for the apparently abrupt transfer of Mr. Johnson. The travel orders in the agency report for this case indicate that much of the paperwork concerning the transfer was not completed until after Mr. Johnson's arrival in Huntsville on March 16. Both his service agreement and official travel orders bear the date of March 21. The travel orders state that Mr. Johnson was on approved leave in Huntsville when informed that a permanent change of station (PCS) to Huntsville had been authorized. They further state that, for the convenience of the Government, the employee is not to return to his old duty station. The orders authorize shipment of household goods and temporary quarters for sixty days. Mr. Johnson states he was not given a copy of his travel orders until they were sent to him by telefacsimile (faxed) on May 31, 1995. Nevertheless, an official from the NASA Human Resources Department assigned to assist Mr. Johnson in his transfer has provided for the record an affidavit in which she states that she had several conversations with him upon his return from Moscow concerning his entitlements in conjunction with his PCS move. She states that she advised him that he could be reimbursed for his airfare from Moscow as long as he could present his used ticket as proof of his costs. She also states that he was told that temporary quarters could be authorized for sixty days but that to get reimbursement he would have to present receipts for lodging, laundry expenses, and food or other items costing more than $25. In his comments on the agency's report, Mr. Johnson writes that he informed this same NASA official that before he and his wife moved into a hotel he first needed to see his travel orders. He states that previous experience with this individual and her office had led him to conclude that her advice could not be trusted. Rather than proceed on this individual's oral representations and risk not being reimbursed for lodging expenses at a hotel, Mr. Johnson and his wife, on March 20, took temporary lodging at the house owned by him and in which his wife had been residing while he was in Moscow. Mr. Johnson, on the assumption that his new wife would be returning with him to Moscow, had previously arranged to lease this house to a new tenant beginning March 31. On his return, however, he was apparently able to change this arrangement. On March 22, he entered a new lease which required him to make the house available to the new tenant commencing May 1. By letter dated March 29, the tenant of another house in Huntsville, also owned by Mr. Johnson, served notice that, under the lease's cancellation provision, he planned to cancel his present lease and vacate no later than April 30. The building in question was a former duplex. On April 17, Mr. Johnson and his wife left the house which they had agreed to lease to a new tenant beginning May 1 and took possession instead of two bedrooms and one half-bath on the first level of the other house owned by Mr. Johnson, which was to be vacated no later than April 30. He then proceeded to award a contract for the addition of a kitchen to this small "apartment" thus making the house once more a duplex residence. The remodeling work was completed in early summer of 1995. Mr. Johnson and his wife have continued to live in this section of the duplex. On November 21, 1995, they successfully leased the other unit of the duplex. There is some disagreement between the claimant and NASA officials on when Mr. Johnson first advised that he was using his own houses as temporary quarters. The official in the NASA Human Resources Department, who was attempting to advise him after his return to Huntsville, has stated in her affidavit that, when she learned he was residing on his own property, she "cautioned" Mr. Johnson that one's own residence did not meet the definition of temporary quarters because no lodging expense is incurred for staying in one's own residence. She has further stated that she discussed this matter with the chief of the center's travel office and that this individual "echoed" her concern over the possibility of reimbursing a claimant in this type of situation. Mr. Johnson denies that he was ever "cautioned" in this regard, but he does admit that the NASA Human Resources Department official with whom he spoke indicated "she did not have the 'authorization' to confirm payment and that someone above her would have to say it was OK." One factor relied on by Mr. Johnson in claiming that he was in temporary quarters during the period following his return from Moscow on March 16 is the apparent uncertainty of just where he would be working. The record confirms that Mr. Johnson, while working in Huntsville prior to his transfer to NASA's liaison office in Moscow, was associated with the Johnson Space Center (JSC) in Houston, Texas. It was the JSC Human Resources Department which provided support to him for his transfer to Moscow and likewise for his return to Huntsville. On return from Moscow, Mr. Johnson was detailed to a JSC residence office at the Boeing Company plant at Huntsville. Mr. Johnson states that when he returned to Huntsville, an official at the JSC Human Resources Department advised him not to make any arrangements to work at NASA's principal center at Huntsville, namely, the Marshall Space Flight Center (MSFC), because he was to be assigned to another NASA center once matters were worked out. According to Mr. Johnson, on May 8, this same official advised him by telephone that he could proceed to find an assignment at MSFC if he wished. Mr. Johnson quickly found a position and began working at MSFC on May 15, 1995. He contends that he did not begin to search seriously for permanent quarters in the Huntsville area until after he was advised that he could remain at MSFC. Mr. Johnson states that in late May and again in June he made a bid on a possible home. The agency report for this case states that, although Mr. Johnson requested an extension of the original temporary quarters authorization of sixty days, it was not granted. In an affidavit provided for the record, an official of the NASA Payroll, Labor, and Travel Accounting Branch assisting Mr. Johnson has declared that she discussed his request with him. She has further stated that she explained to Mr. Johnson that the Human Resources Department would take no action on his request until the voucher for his first sixty days of temporary quarters was finalized. Mr. Johnson does not challenge these statements. On June 26, 1995, Mr. Johnson submitted a claim for temporary quarters entitlements, for reimbursement of the travel expenses for his return from Moscow, and for loss of and damages to his personal effects shipped back to him from his apartment in Moscow. The claim sought temporary quarters subsistence expenses (TQSE) for a full 120 days through July 17, 1995. The itemization sheets submitted in support of Mr. Johnson's TQSE claim show no daily cost for lodging or meals but simply a daily total for himself and one dependent. This total for the first thirty days is $100 per day. For the remaining ninety days the total is reduced to $82.50 per day. Mr. Johnson states that, upon submitting his claim, he was informed by the Human Resources Department that the supporting itemization sheets for his TQSE claim had been incorrectly filled out. By letter dated August 29, 1995, Mr. Johnson submitted revised itemization sheets, along with receipts for his airline ticket and for some meals, food, and laundry expenses. In addition, he furnished a specific list of household items damaged or lost during shipment from Moscow. The revised claim totaled $15,785.20. From this amount claimant subtracted $6785. This deduction represents an amount advanced to him on the occasion of his leaving for Moscow the year before. NASA, as of May 9, 1995, had been seeking a return of the original advance given to him for this trip after learning that an itemized voucher for travel and relocation expenses filed by Mr. Johnson after arrival in Moscow had already been paid to him. Given Mr. Johnson's willingness to offset this agency claim against his own relocation claim, we conclude that the agency's claim is not in dispute. Mr. Johnson's revised itemization sheets provided considerably more detail than the sheets originally submitted. For himself and his dependent, he listed a total lodging cost of $58 per day. For breakfast he claimed a total of $10 per day. For lunch he claimed a total of $15 per day. With a limited number of exceptions, he claimed a total of $24 for dinner each day. The revised itemization list also included eight claims for laundry and dry cleaning. In his cover letter of August 29, 1995, with which he submitted a revised and supplemented claim, Mr. Johnson explained that the claim of $58 per day for lodging was an estimate. He stated that amount was the "going rate" for a hotel in Huntsville where JSC personnel stay while on temporary duty (TDY) from Houston. He likewise explained that the charges noted for the cost of meals were also estimated and below the $25 level for which a receipt would be required. Mr. Johnson summarized his claim as follows: Temporary Quarters: 1st 30 Days $ 3418.97 2nd 30 Days 3338.24 3rd 30 Days 3247.85 4th 30 Days 3210.00 Travel Expenses 95.00 Miscellaneous Expenses 700.00 Airline Ticket 1338.81 Damages/Missing 436.33 TOTAL: $15,785.20 Current due JSC: -6,785.00 TOTAL DUE: 9,000.20 After review of Mr. Johnson's revised claim, NASA, by letter dated May 22, 1996, advised him that it was allowing a total of $2,070.81 of his claim. The amounts allowed and disallowed were stated as follows: Description Claimed Allowed En Route Travel from Moscow to Huntsville 1,433.81 1,370.81 Miscellaneous Allowance 700.00 700.00 Temporary Quarters 13,215.06 0.00 Damages During Shipping 436.33 0.00 TOTAL $15,785.20 $2,070.81 The agency further advised Mr. Johnson that it had allowed per diem for one day of air travel but in doing so had omitted from the allowance the component normally applied for lodging. The claim for damages was disallowed on the ground that the first avenue for reimbursement for damages of this nature is with the vendor who performed the services. Finally, TQSE was disallowed in its entirety on the ground that the amounts sought did not represent actual expenses but rather estimates. The agency's letter also reminded Mr. Johnson that the advance for his trip to Moscow was still outstanding but would now be reduced to $4,739.30 to reflect the amounts found due to him on this relocation claim. By letter dated August 19, 1996, Mr. Johnson appealed to this Board the agency's ruling on his claim. Discussion A basic issue in this case to be resolved at the outset is whether Mr. Johnson and his wife can be considered to have been living in temporary quarters during the period for which it was authorized. The Federal Travel Regulation (FTR) explains: Generally, the term temporary quarters 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) (1995)(FTR 302-5.2(c)). The facts in this case indicate that while on leave in Huntsville, Alabama, Mr. Johnson was advised that he was being transferred back to that city from Moscow. He was also advised that temporary quarters were authorized for sixty days. Based on the record before us, we find that the quarters he and his wife occupied during the sixty days in question were, in fact, temporary quarters. We are not particularly troubled by the fact that the houses used were privately owned by Mr. Johnson himself. While this fact may have an effect upon the amount of TQSE to which he is entitled, we do not see it as necessarily negating the fact that he and his wife were in temporary quarters. The FTR indicates that the determination of whether an employee is in temporary or permanent quarters should turn on such factors as the duration of any lease the employee enters, the movement of household effects into the quarters, the type of quarters, the expressions of intent, the attempts to secure a permanent dwelling and the length of time the employee occupies the quarters. FTR 302-5.2(c). NASA contends that, based upon considerations such as these, it reasonably concluded that Mr. Johnson and his wife were not in temporary quarters in either of the two residence occupied by them. We disagree. From the record of this case it is clear that the situation Mr. Johnson found himself in when he moved into the residence previously occupied by his wife prior to their marriage was far from a stable one. The house had previously been scheduled for leasing. Within days of his moving into this house, Mr. Johnson arranged for a change in the lease to provide for possession commencing May 1. It may well be that, as the agency points out, the Johnsons had their household goods delivered to this house. Nevertheless, it is equally clear that they were obliged to leave it prior to May 1. For this reason we conclude that it was unreasonable on the part of the agency to consider the Johnsons to be in permanent quarters prior to that date. The situation with the second location is similar. Mr. Johnson contends that he was advised by the JSC Human Resources Department that he was to be assigned to another NASA center once matters were worked out. The agency does not deny this fact. Although his travel orders indicate Huntsville as his new duty station, Mr. Johnson states, without contradiction, that he did not receive a copy of these orders until May 31. This lack of certainty as to whether he would remain at Huntsville lends considerable support to the conclusion that, at least until mid- May when, with the permission of the JSC Human Resources Department, he sought and secured a position at MSFC, the two- room apartment occupied by Mr. Johnson and his wife should likewise be considered temporary quarters. To conclude otherwise, based upon/on the evidence before us, would be unreasonable. We recognize that, once the alterations of the duplex were complete, the Johnsons did elect to remain in the modified two-room apartment as their permanent quarters. Nevertheless, on balance, given the circumstances at the time, we are satisfied that the ultimate decision to remain in this apartment indefinitely, thus rendering it their permanent quarters, was not made by the Johnsons until sometime after the expiration of the initial, authorized sixty day period for temporary quarters. Although we find that Mr. Johnson was in temporary quarters during the first sixty days following the issuance of his orders on March 21, 1995, we do not find that he was entitled to an extension of this authorization to 120 days. The FTR provides: The administrative determination as to whether the occupancy of temporary quarters is necessary and the length of time for occupancy shall be made on an individual-case basis. FTR 302-5.1. The determination as to whether the authorization of temporary quarters should be extended beyond the first sixty days is not automatic and is not made lightly. Thomas H. Potts, GSBCA 13700-RELO, 97-1 BCA  28,938; Charles M. Floyd, GSBCA 13677, 97-1 BCA  28,937. This determination is a matter left to agency discretion and is not one which we will disturb unless we find it to be arbitrary, capricious, or contrary to law. Holly Rowe, GSBCA 14037-RELO, 97-1 BCA  28,934; Luis Flores, GSBCA 13977-RELO, 97-1 BCA  28,928. In this case, the agency did not extend the initial sixty- day period for temporary quarters. Given the circumstances at the time, we consider the decision not to extend to be a reasonable one. Mr. Johnson's position in Huntsville had become clear by May 15, shortly before the expiration of the first sixty day period of temporary quarters. NASA officials, by this time, knew that he was living in a residence which he himself owned. Whether this would qualify him for TQSE was still an open question. Mr. Johnson points out that the short notice of transfer provided to him was in contravention of agency guidance. He apparently feels that this failure on the agency's part should justify a longer period of authorized temporary quarters. We are not persuaded. The agency's concerns were legitimate ones. We are not prepared to say that, under circumstances such as these, a decision not to extend the authorized period constitutes an abuse of an agency's discretion. Having determined that Mr. Johnson and his wife were living in temporary quarters during the sixty days of authorized temporary quarters and having determined that there is no basis for overturning NASA's decision not to extend this period, we now turn to the specific elements of Mr. Johnson's claim. NASA is correct in refusing to pay Mr Johnson's estimated costs for lodging during his authorized period of TQSE. The FTR provision concerning claims for temporary quarters reads: Reimbursement shall be made only for actual subsistence expenses incurred provided these are incident to occupancy of temporary quarters and are reasonable in amount. FTR 302-5.4. The critical term here is "actual." If the expense claimed has not been actually incurred, then the agency cannot reimburse the claimant. Estimated costs which bear no discernible relationship to actual costs are not reimbursable. It is precisely because of this limitation that the contemporaneous itemization of expenses is required when one has been authorized TQSE. In this regard, the FTR provides: The actual expenses shall be itemized in a manner prescribed by the head of the agency which will permit at least a review of the amounts spent daily for (1) lodging, (2) meals, and (3) other allowable items of subsistence expenses. Receipts shall be required at least for lodging and laundry and cleaning expenses (except when coin-operated facilities are used.) FTR 302-5.4(b). The NASA Form 1500 addresses this requirement of the FTR. It provides for entries on a daily basis for lodging expenses, for the costs of three separate meals, and for laundry and dry cleaning expenses. In Mr. Johnson's case, the costs listed on this form for lodging are nothing more than estimated hypothetical costs. He freely admits this fact. NASA has, therefore, correctly denied them. NASA argues that Mr. Johnson had no out-of-pocket lodging expenses while residing in his own homes because the homes were leased at the time. Agency Report at 9. This is not entirely correct. The lease on the home occupied from March 20 to April 16 did not go into effect until May 1. The lease on the home with the two-room apartment occupied from April 17 forward expired on April 30. It is reasonable to conclude, therefore, that Mr. Johnson did encounter unreimbursed actual costs in maintaining his quarters for forty-six of the sixty days of authorized TQSE. These costs would include expenses such as financing, property tax, insurance and utilities. If the claimant can support with adequate documentation the calculation of a per day total for such actual costs, he is entitled to reimbursement for them. Cf. Donald C. Smaltz, GSBCA 14328-TRAV (Oct. 23, 1997)(similar calculation permitted for per diem lodging allowance). As for Mr. Johnson's claim for the costs of meals, we find a problem similar to that encountered in his claim for lodging expenses. The claim, for the most part, is not for actual expenses but rather for estimated costs. The same regulatory requirement that reimbursements be for actual costs applies here as well. The listing of itemized costs initially submitted by Mr. Johnson in support of his original claim was composed of estimates, pure and simple, for each day's total costs. He readily admits this and explains that, in preparing claims in the past, he was instructed to use estimates. If indeed he has been so advised in the past, the advice was clearly incorrect. With regard to the claim which is the subject of this decision, however, Mr. Johnson was advised that the itemization sheets he had submitted were unsatisfactory. His revised sheets submitted in August 1995 did provide additional detail regarding lodging and individual meals but were still, for the most part, nothing more than estimates. The figures listed for all breakfasts are the same for each day. So likewise are the amounts listed for all lunches, and for most dinners. These figures obviously, on their face, are still nothing more than estimates. In the absence of evidence to the contrary, the estimates were properly denied by NASA. An agency is not obligated to pay a claimant any amount for meal expenses, particularly when the claimant cannot establish that the expenses were either actually or reasonably incurred. Michael D. Fox, GSBCA 13712-RELO (Aug. 15, 1997); Michael L. Morgan, GSBCA 13646- RELO, 97-2 BCA  29,018; Luther R. Dixon, GSBCA 13694-RELO, 97-1 BCA  28,947. Notwithstanding Mr. Johnson's heavy reliance upon estimates in preparing his revised itemization sheets, there is a limited number of entries covering dinners and dry cleaning which he has supported with specific receipts. These have been entered on his revised itemization sheets. For the sixty-day period of authorized TQSE, there is a total of $432.71 in documented expenditures for dinners and a total of $120.50 in documented expenditures for dry cleaning. The agency, after examining these receipts, contends that the costs covered do not qualify as TQSE and were not incurred incident to the occupancy of temporary quarters. No objection, however, is raised to the reasonableness of these costs. We find the amounts in question to be reasonable, when viewed as a whole, for the period in question. Since they are not estimates but rather documented actual costs, they should be paid. Mr. Johnson has asked that we review NASA's ruling on his entire claim. In addition to his claim for TQSE, which constitutes the major portion of that claim, NASA has denied a portion of the per diem he sought for the time spent returning from Moscow to Huntsville. The agency allowed one day for per diem but deducted the component of the per diem normally applied for lodging. We find this appropriate since Mr. Johnson slept in an airplane on that day. We, therefore, affirm the agency's decision on this portion of the claim. NASA has also denied Mr. Johnson's claim of $436.33 in damages to his household goods during shipment from Moscow. This Board has been delegated authority to settle claims by federal civilian employees for relocation expenses incident to transfers of official duty station. This authority does not extend to claims for loss and damage to household goods. Settlement of these is a matter within the authority of the head of the agency in which the claimant was employed at the time of shipment. Edmund J. Wiatr, Jr., GSBCA 14130-RELO, 97-2 BCA  29,032; Gretchen F. Ridgeway, GSBCA 14074-RELO, 97-1 BCA  28,942; Charles A. Miller, GSBCA 13859-RELO, 97-1 BCA  28,865. We, therefore, dismiss this aspect of Mr. Johnson's claim and refer it back to NASA for review at an appropriate level within the agency. Summary Mr. Johnson's claim for damages to his household goods is dismissed. The agency's ruling on his per diem claim is affirmed. The agency's ruling on his claim for TQSE is likewise affirmed with the exception of $432.71 sought for dinners and $120.50 sought for laundry and dry cleaning. These are to be paid. The agency should also pay actual lodging costs for forty- six of the sixty days of authorized temporary quarters, but only when and if claimant submits a reasonably documented claim for them. _____________________ EDWIN B. NEILL Board Judge