In the Matter of SEAN P. TWEED-KENT

July 11, 2017

CBCA 5528-RELO

In the Matter of SEAN P. TWEED-KENT

Sean P. Tweed-Kent, FPO Area Europe, Claimant.

Luisa Cibelli, Human Resources Specialist, Human Resources Office, Naval Support

Activities, Naples, Department of the Navy, FPO Area Europe, appearing for Department of

the Navy.

RUSSELL, Board Judge.

Claimant, Sean P. Tweed-Kent, an employee with the Department of the Navy,

challenges the agency’s determination denying him reimbursement for certain costs related

to his temporary quarters subsistance allowance (TQSA). For reasons stated below, we deny

Mr. Tweed-Kent’s claim for lodging and grocery expenses while on vacation, and remand

to the agency to reconsider amounts that might be owed to him for the post-vacation grocery

expense at issue.

Background

The Navy transferred Mr. Tweed-Kent from Fort Belvoir, Virginia, to Naples, Italy.

Pursuant to the Navy’s provision of a TQSA, he and his family occupied temporary quarters

at his new duty station from July 12 to September 8, 2016. Just before vacating temporary

quarters, during the Labor Day weekend from September 2 through September 4, 2016,

Mr. Tweed-Kent and his family took a trip to Siena, Italy, 365 kilometers (or 227 miles) from

Naples. He subsequently requested reimbursement for lodging and meal expenses incurred

during the trip to Siena. However, upon learning that lodging expenses while in Siena were

non-reimbursable as outside of post, he modified his request seeking instead reimbursement

for his Naples lodging, which he had not vacated during the Labor Day weekend period.

CBCA 5528-RELO

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Mr. Tweed-Kent also requested reimbursement for grocery expenses in the amount of

$334.89 incurred on September 6, 2016.1

The Navy denied Mr. Tweed-Kent’s request for reimbursement for the Naples lodging

because he was not occupying the lodging during the period at issue (as he and his family

were in Siena), and he was not in a temporary duty status away from post. Similarly, the

Navy denied his request for reimbursement of meal expenses related to his Siena trip as those

expenses were incurred while on vacation. The Navy approved reimbursement of only $150

of the $334.89 requested by Mr. Tweed-Kent for the September 6, 2016, grocery expense.

In response to a request by the Board, the Navy provided a methodology showing how

it determined that $150 was an appropriate reimbursement for the grocery expense at issue.

The Navy noted that Mr. Tweed-Kent received TQSA for approximately two monthly

periods, the first from July 12 to August 10, 2016, and the second from August 11 to

September 8, 2016. For the first period of TQSA, Mr. Tweed-Kent claimed grocery

expenses of $391.75 and €823.18, and for the second, he claimed grocery expenses of

$2128.78 and €951.14. The Navy determined that $150 was an appropriate reimbursement

amount by using a methodology based on what the agency considered weighted averaging

of daily grocery expenses incurred by Mr. Tweed-Kent, exclusively in dollars, during his

second period in temporary quarters.2 The Navy did not explain why it did not include those

grocery expenses that Mr. Tweed-Kent incurred in euros in its methodology.

1

The grocery expenses incurred on that day actually totaled $526.08 but

Mr. Tweed-Kent is seeking only $334.89 of this amount, based on deducting certain

expenses for goods he identifies as “non consumables,” e.g., cleaning supplies, storage bags,

and paper towels.

2

In dollars, Mr. Tweed-Kent incurred $2128.78 in grocery expenses during his

second period of TQSA consisting of twenty-nine days. During the last three of those

twenty-nine days, he incurred expenses of $708.56, specifically, $526.08 (on September 5,

2016), $32.18 (on September 7, 2016), and $150.30 (on September 8, 2016). The agency

explained its methodology as follows:

The methodology we used to determine the amount of Mr. Tweed-Kent’s

grocery claim was based on an average between the 29 days daily amount

($2,128.78/29 days = $73.40) and the last three days daily amount ($708.56/3

days = $236.18) of the grocery amount Mr. Tweed-Kent was requesting as

summarized in the following calculation:

$73.40 + $236.18 = $309.58/2 = $154.79, which was rounded to $150.00.

CBCA 5528-RELO

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In assessing the amount for reimbursement, the Navy stated that it considered, and

was concerned by, the substantial increase in Mr. Tweed-Kent’s grocery expenses from the

first period of TQSA to the second period. The Navy particularly focused on those amounts

of grocery expenses that Mr. Tweed-Kent incurred during his final eleven days in temporary

housing, stating,

Upon receipt of [Mr. Tweed-Kent’s] second TQSA claim, the last 11 days (of

which almost 4 days the employee and family were away from post) of the

claim were questioned. Mr. Tweed-Kent was due to move into his permanent

quarters on 9 September 2016. On 29 August 2016, he had a grocery expense

of $408.95, and on 1 Sep 2016 he had another grocery expense of $174.88,

in addition the employee had consumed meals at the restaurant for lunch and

dinner plus other minor grocery expenses. On 2 September 2016, Mr. TweedKent left to go to Siena, Italy with his family for three days (2-4 September

2016) to return the evening of the 5th of September. From 6 September

through 8 September 2016, Mr. Tweed-Kent submitted a grocery expense for

the amount of [$]526.08[3] (three days before moving into his permanent

quarters) and another grocery expense on the last day for the amount of

$150.30, in addition to other minor grocery expenses and meals at the

restaurant.[4]

Discussion

“TQSA is intended to pay for reasonable subsistence expenses of an employee and

immediate family members while occupying temporary quarters when relocating to or from

an overseas location.” Nhia Xiong, CBCA 5464-RELO, 17-1 BCA ¶ 36,644, at 178,462.

The granting of TQSA is authorized by the Overseas Differentials and Allowances Act,

5 U.S.C. §§ 5921 et seq. (2012), and implementing regulations established by the Secretary

of State under authority delegated from the President. Nhia Xiong, 17-1 BCA at 178,463.

The Department of State Standardized Regulations (DSSR), issued by the Secretary of State,

are the rules pursuant to which federal employees receive overseas allowances, including

TQSA. Id. These rules state that “[t]he rate at which [a] temporary quarters subsistence

3

4

As noted, Mr. Tweed-Kent is only seeking $334.89 of this amount.

The other grocery expenses that Mr. Tweed-Kent incurred during his last

eleven days in temporary housing include $6.58 on August 29, 2016, $56.49 (plus €85.21)

on August 31, 2016, €28.23 on September 1, 2016, and $32.18 on September 7, 2016. Thus,

during these eleven days, Mr. Tweed-Kent incurred $1355.46 (plus €113.44) in grocery

expenses.

CBCA 5528-RELO

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allowance may be granted shall be the total amount of the reasonable and necessary expenses

for the employee and family members” and “[o]nly actual subsistence expenses incurred,

which are reasonable in amount and incident to the occupancy of temporary quarters, shall

be reimbursed.” DSSR 125. “Underlying the [legislative] authorization” for TQSA “is the

expectation that expenditures will be incurred prudently [by agency employees] and that

agencies may question claimed amounts that appear excessive or unreasonable.” Michael

J. Krell, GSBCA 13710-RELO, 98-2 BCA ¶ 30,050, at 148,661.

As has been long held, the provision of allowances under the Overseas Differentials

and Allowances Act and the DSSR is a discretionary matter. Charles E. Brookshire,

B-196,809 (May 9, 1980) (Comptroller General, who previously decided matters under the

Overseas Differentials and Allowances Act, states provision of TQSA is discretionary); see

also Michael J. Krell, 98-2 BCA at 148,661. As such, the heads of agencies have broad

discretion in the provision of TQSA within the confines of the statute and the DSSR.

Charles E. Brookshire; Lynn A. Ward, CBCA 2904-RELO, 13-1 BCA ¶ 35,276, at 173,153.

In this matter, Mr. Tweed-Kent challenges the Navy’s determination denying him lodging

and meal expenses related to his Siena trip and reducing the amount of reimbursement for

the grocery expense at issue.

As for Mr. Tweed-Kent’s claim related to his Siena trip, “[t]he DSSR does not speak

directly to the question of whether an employee is eligible for TQSA” while on vacation. See

Richard H. Whittier, GSBCA 16538-RELO, 05-1 BCA ¶ 32,926, at 163,103. However,

consistent with the Board’s practice of looking at principles governing temporary quarters

subsistence expense (TQSE) allowances to determine the appropriateness of reimbursement

for TQSA expenses, we hold that Mr. Tweed-Kent is not entitled to reimbursement for meals

and lodging for the period while he was vacationing in Siena.5 As this and our predecessor

board in considering these matters have consistently held, “[a]gencies may not reimburse

[employees for expenses] for vacation purposes or other reasons unrelated to the

[employee’s] transfer.” Steven H. Jenkins, GSBCA 15810-RELO, 02-2 BCA ¶ 31,928, at

157,744; see also Donald G. Lessner, Jr., CBCA 5288-RELO, 16-1 BCA ¶ 36,573, at

178,124 n.5; Richard H. Whittier, 05-1 BCA at 163,103. Mr. Tweed-Kent’s trip to Siena was

not taken for the purpose of transacting or conducting official business on behalf of the

Government. Thus, the agency acted appropriately in denying Mr. Tweed-Kent’s request to

be reimbursed for expenses incurred during this trip. Further, “[b]y statute, TQSA is

5

“The TQSE allowance is intended to reimburse an employee reasonably and

equitably for subsistence expenses incurred when it is necessary [for the employee] to occupy

temporary quarters,” and applies when the employee’s new official station is located in the

United States. 41 CFR 302-6.3 to -6.4. As with TQSA, agencies have discretion to decide

whether it is in the Government’s interest to pay TQSE. Id. 302-6.6.

CBCA 5528-RELO

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intended to pay for reasonable subsistence expenses of an employee and immediate family

members while occupying temporary quarters when relocating to or from an overseas

location.” Lynn A. Ward, 13-1 BCA at 173,152 (emphasis added). Mr. Tweed-Kent was not

occupying the Naples lodging during the period when he was vacationing in Siena. He also

could not have received reimbursement from the Navy for lodging expenses while in Siena

because his vacation was unrelated to the reason for his transfer to Naples. Accordingly, we

will not disturb the Navy’s decision denying reimbursement for lodging and meal expenses

during the period when Mr. Tweed-Kent was on vacation.

Turning to Mr. Tweed-Kent’s claim for the post-vacation grocery expense, the Navy

objected to paying the requested amount, reducing reimbursement to $150. The Navy noted

the substantial increase in TQSA expenses incurred by Mr. Tweed-Kent from his first period

in temporary housing to the second period, particularly focusing on the considerable

amounts incurred in grocery expenses during Mr. Tweed-Kent’s final eleven days in

temporary housing. We believe that the agency’s concern about Mr. Tweed-Kent’s grocery

expense is reasonable. Based on the expense records provided, Mr. Tweed-Kent spent

$1355.46 (plus €113.44) on groceries during the last eleven days of his second TQSA

period. This does seem excessive, particularly when compared to what he spent during the

entirety of his initial thirty days or so in temporary housing (grocery expenses of $391.75 and

€823.18). Accordingly, we take no issue with the agency’s decision to reduce the amount

requested by Mr. Tweed-Kent for the grocery expense in dispute by using a formula based

on average daily grocery costs. And here, it seems that the agency was generous in basing

its methodology solely on those costs incurred during the second period of TQSA, as

exclusion from the methodology of the costs from the first period of TQSA, during which

time Mr. Tweed-Kent’s grocery expenses were much lower, actually worked to Mr. TweedKent’s benefit.

What we do not understand, however, is the methodology used by the agency in

determining a reasonable reimbursement. Although we take no issue with the agency’s use

of weighted averaging, the agency’s methodology does not appear to be correct. The Navy

based its methodology on the average daily amount that Mr. Tweed-Kent spent on grocery

expenses on his last twenty-nine days in temporary quarters (i.e., $2128.78/29 days = $73.40)

and those on his last three days (i.e, $708.56/3 days = $236.18). The Navy added the average

daily amounts for these periods ($73.40 + $236.18), and then divided the total by two

($309.58/2), to find the figure of $154.79. The Navy then rounded this “weighted” number

down to $150, an amount that the Navy proposes is reasonable to compensate Mr. TweedKent for the grocery expense at issue. However, this methodology does not accurately reflect

weighted averaging. Applying weighted averaging to the agency’s numbers, the formula,

exclusive of the amount for the grocery expenses that Mr. Tweed-Kent incurred in euros,

should actually be: (2128.78 + 708.56)/(29 + 3) = $88.66. Although this amount is

CBCA 5528-RELO

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mathematically calculated, the Board cannot say that the number is reasonable as it does not

include Mr. Tweed-Kent’s grocery expenses incurred in euros, and the agency has not

explained why those expenses should be excluded from the calculation. We are also unclear

as to why the agency divided its weighted number by two.

An agency is certainly entitled to reject an employee’s request for reimbursement of

TQSA expenses deemed excessive. See Michael J. Krell, 98-2 BCA at 148,661 (“Expenses

in excess of what the agency determines to have been reasonably incurred are not

allowable.”). The agency must, however, have sound, evidence-based reasons for its

determination that an employee’s requested TQSA expense is excessive, and if appropriate,

use a suitable methodology, in determining what would be a reasonable reimbursement. In

short, both the agency’s decision finding an employee’s TQSA expenses as excessive and its

assessment of what is an appropriate reimbursement amount to compensate an employee for

those expenses must be rational. Nhia Xiong, 17-1 BCA at 178,463-64 (agencies have

discretion to create their own internal estimates of what is a reasonable TQSA

reimbursement, but in doing so, must show, through evidence, why an employee’s requested

reimbursement is unreasonably high) (citing Donald Mixon, GSBCA 14957-RELO, 00-1

BCA ¶ 30,606, at 151,117 (1999)). Here, the agency, relying on Mr. Tweed-Kent’s record

of expenses, presented sufficient support for its finding that Mr. Tweed-Kent’s grocery

expenses during his last eleven days were excessive. The Board will not disturb this finding.

However, the agency’s methodology for determining a reasonable amount for reimbursement

of the grocery expense at issue must be similarly reasonable and supported – specifically,

here, the formula used, and the expenses included or excluded, must be mathematically

appropriate and rational. Although the agency stated that it used weighted averaging to

calculate a reimbursable amount, its formula does not accurately reflect weighted averaging

of the incurred amounts. Additionally, as for excluding those grocery expenses incurred in

euros from the calculation, the agency may have a legitimate explanation for doing so.

However, it did not provide such an explanation in either its initial response to Mr. TweedKent’s claim or its follow-up response requested by the Board.

We conclude that the agency had legitimate reasons for rejecting Mr. Tweed-Kent’s

claim for TQSA related to his vacation. We remand to the agency to review its

reimbursement determination for the grocery expense, consistent with this decision.

__________________________

BEVERLY M. RUSSELL

Board Judge