In the Matter of THADDEUS L. KONTEK

January 6, 2016

CBCA 4943-RELO

In the Matter of THADDEUS L. KONTEK

Thaddeus L. Kontek, Washington, DC, Claimant.

Robert T. Macdonald, Managing Director, Financial Reporting and Analysis,

Department of State, Washington, DC, appearing for Department of State.

LESTER, Board Judge.

Claimant, Thaddeus L. Kontek, challenges the Department of State’s decision to

reimburse his temporary quarters subsistence expenses (TQSE) based upon the standard

continental United States (CONUS) per diem rate, rather than upon the locality per diem rate

for the Washington, D.C., area applicable to temporary duty (TDY) travel. For the reasons

discussed below, we have no choice but to deny his claim.

Background

Mr. Kontek is a Foreign Service officer with the Department of State (DOS). In early

2015, he was notified of his impending transfer from a post at the United States Embassy in

Antananarivo, Madagascar, to a post in Washington, D.C. A proposed travel itinerary, dated

February 20, 2015, indicated that, as part of his transfer, he would receive a home service

transfer allowance (HSTA), which would include reimbursement of TQSE and miscellaneous

expenses. His subsequent travel orders, which were issued on March 16, 2015, authorized

the HSTA, including reimbursement of TQSE on an actual expense basis for the first sixty

days of Mr. Kontek’s residency in Washington, D.C. DOS estimated that the total TQSE

over the course of those sixty days would be $11,610, although the final amount would be

based upon actual expenses not in excess of the permissible per diem. The travel orders

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further indicated that the reimbursable TQSE would be calculated “based on the Standard

CONUS per diem rate, which may be substantially less than the locality per diem rate” and

that “the second 30 days are at a lower rate for all travelers.”

On April 2, 2015, Mr. Kontek sent an email message to another DOS employee –

apparently, the general services officer (GSO) at his embassy – stating that he was “confused

on the TQSE allowance for housing” and asking whether he would receive “the DC rate at

100% for [himself] and 75% for [his] wife.” In a responsive email message, the GSO

indicated as follows: “For the TQSE – you are right – 100% for you, 75% for your wife.

The lodging portion can only be reimbursed with receipts but the [meals and incidental

expenses (M&IE)] portion can be reimbursed just by documenting your expenses on the form

– no receipts needed.” After this representation, the GSO copied and included in her email

message a block quote from section 252.3(a)(1) of the Department of State Standardized

Regulations (DSSR), which indicated that reimbursement of the TQSE portion of the HSTA

would be calculated based upon, and could not exceed, “the standard CONUS (per diem)

rate.”

Mr. Kontek and his wife subsequently traveled to Washington, D.C., and, for the

sixty-day period beginning April 18, 2015, incurred lodging and M&IE costs in that

metropolitan area. At the conclusion of the sixty-day period, Mr. Kontek requested TQSE

reimbursement of approximately $22,000, but DOS paid him less than half the requested

amount. On June 23, 2015, Mr. Kontek questioned the reduction, complaining that the

standard CONUS per diem rate of $129 per day that DOS had used to calculate his

reimbursement was far below the locality per diem rates (with lodging and M&IE of up to

$300 per day) that employees traveling to Washington, D.C., on TDY would have received.

He asserted that his GSO told him “that [he] would get DC per-diem rates and booked

temporary lodging accordingly.” After a DOS claims representative informed him that TQSE

reimbursement is limited to the standard CONUS per diem rate, he complained that “[i]t is

impossible to find lodging in DC” at such a rate and that, in light of the hotel accommodation

prices in Washington, D.C., the amount paid was “grossly unfair” to employees, who should

not have to bear “[t]he costs of transfer back to DC.”

After DOS denied his claim, Mr. Kontek sought the Board’s review.

Discussion

“Section 901 of the Foreign Service Act of 1980, which is codified at 22 U.S.C.

§ 4081 (2012), ‘grants the Secretary of State the authority to pay the travel-related expenses

of members of the Foreign Service and their families.’” Brian D. Crawford, CBCA

4880-RELO, 15-1 BCA ¶ 36,162, at 176,472 (quoting Raymond Daniel Toma, Jr., CBCA

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1499-RELO, 09-2 BCA ¶ 34,152, at 168,822). Implementing that statutory authority,

volume 3 of the Foreign Affairs Manual (FAM) authorizes HSTA for Foreign Service

employees transferring from a foreign post to a post within the United States, an allowance

which is designed to cover “extraordinary necessary and reasonable expenses, not otherwise

compensated for, incurred by an employee incident to establishing him/herself at a post of

assignment in the U.S.” 3 FAM Exhibit 3210; see Andrew G. Chritton, CBCA 3080-TRAV,

13 BCA ¶ 35,229, at 172,839 (FAM implements 22 U.S.C. § 4081).

The FAM directs that HSTA is to be granted “as specified by Department of State

Standardized Regulations (DSSR) 250.” 3 FAM 3231.2(b)(1).1 Under DSSR 250, HSTA

is divided into four elements, one of which is an “actual subsistence expense” allowance.

DSSR 251.2(c). That allowance is “designed to help offset costs of meals, laundry and dry

cleaning of clothes and lodging in a hotel, pension, or other transient-type quarters, including

obligatory service charges.” Id. As DOS indicated in Mr. Kontek’s travel orders, the “actual

subsistence expense” allowance is the same as TQSE, which “is intended to reimburse [a

transferred] employee reasonably and equitably for subsistence expenses incurred when it

is necessary to occupy temporary quarters.” Melinda Slaughter, CBCA 754-RELO, 07-2

BCA ¶ 33,633, at 166,579 (quoting the Federal Travel Regulation, 41 CFR 302-6.3 (2006)).

DOS can authorize payment of the employee’s actual subsistence expenses (for up to

sixty days, with the possibility of an extension of up to an additional sixty days) or, in the

alterative, a fixed amount to cover subsistence expenses (not to exceed thirty days). DSSR

251.2(c). The DSSR provides that, if the agency chooses to authorize reimbursement of

actual expenses, the amount authorized to be paid is defined in DSSR 252.3:

The amount paid under the actual subsistence expense portion is either the

employee’s daily expenses for allowable items or the maximum prescribed rate

(Section 252.3), whichever is less.

1

The definitions of HSTA in DSSR 250 and in volume 3 of the FAM are virtually

identical. However, the DSSR, in defining HSTA, adds a reference to 5 U.S.C. § 5924(2)

(section 5924(2)) and identifies it as the statutory basis of DOS’s authority to grant HSTA.

DSSR 251.1(a). Because section 5924(2) defines “transfer allowance” in a manner

consistent with the DSSR and the FAM, we need not consider whether it is section 5924(2)

or, instead, 22 U.S.C. § 4081 that provides the primary source of DOS’s authority to grant

HSTA. See 5 U.S.C. § 5924(2) (agencies may grant employees transferred from a foreign

post to a domestic post a “transfer allowance for extraordinary, necessary, and reasonable

subsistence and other relocation expenses (including unavoidable lease penalties), not

otherwise compensated for,” that they incur in establishing themselves at the domestic post).

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DSSR 251.2(c). Pursuant to DSSR 252.3(a), the employee is entitled to incur reimbursable

expenses for the first thirty days at “a daily rate not in excess of the standard CONUS (per

diem) rate,” DSSR 252.3(a)(1)a, and for the second thirty days at “75% of the applicable per

diem rate established in 252.3a(1)a.” DSSR 252.3(a)(2)d. In addition, if a family member

above the age of twelve is traveling with the employee, the agency will add an additional

payment of “75% of the daily rate established in 252.3a(1)a” to cover the first thirty days of

the family member’s expenses and “50% of the applicable rate established in 252.3a(1)a” for

the second thirty-day period. DSSR 252.3(a)(1)b, (a)(2)b.

Mr. Kontek was paid according to that formula for the first sixty days in which he was

staying in the Washington, D.C., area. He was paid 100 percent of the standard CONUS rate

of $83 a day for lodging and $46 a day for meals and incidental expenses (M&IE) for his first

thirty days in Washington, D.C., and he received a payment for his wife’s expenses at

75 percent of that amount. He also received payment of his and his wife’s subsistence

expenses for the second thirty days in Washington, D.C., in an amount equivalent to

75 percent of the standard CONUS rate (for his expenses) and 50 percent of the standard

CONUS rate (for his wife’s expenses). DOS’s payment was consistent with the requirements

of the DSSR. See Ira A.C. Peets, GSBCA 15294-RELO, 00-2 BCA ¶ 31,058, at 153,353

(approving of reimbursement of HSTA hotel expenses at standard CONUS rates).

Mr. Kontek asserts that he was misled by his GSO’s April 2, 2015, email message into

believing that his TQSE would be reimbursed at the locality per diem rate that TDY

employees receive. Although the GSO’s representation in an email message to Mr. Kontek

about his right to recover “100%” of the per diem rate might have been somewhat confusing,

the message also contains a block quote from DSSR 252.3(a)(1), which plainly states that

Mr. Kontek would receive the “standard CONUS (per diem) rate.” In addition, Mr. Kontek’s

travel authorization clearly indicates TQSE reimbursement would be at the standard CONUS

rate, which, the authorization stated, “may be substantially less than the locality per diem

rate.” To the extent that the GSO’s initial statement about the permissible reimbursable per

diem was misleading or incorrect, any misstatements cannot bind the agency or change the

outcome here because “[t]he Government is not bound by the erroneous advice of its

officials, even when the employee has relied on this advice to his detriment.” Debra K.

Armstrong, CBCA 3712-RELO, 14-1 BCA ¶ 35,676, at 174,610-11 (quoting Flordeliza

Velasco-Walden, CBCA 740-RELO, 07-2 BCA ¶ 33,634, at 166,580).

Mr. Kontek correctly asserts that it would be virtually impossible for him or any other

federal employee to find acceptable temporary commercial lodging in the Washington, D.C.,

area at a rate of only $83 per night. The record in this case shows that Mr. Kontek and his

wife stayed in reasonable, but by no means luxurious, accommodations while awaiting the

arrival of their household goods, but the daily rates that they were charged were more than

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twice the permissible standard CONUS per diem (and were closer to the $229 locality per

diem for lodging that was in place at that time for TDY travelers in the Washington, D.C.,

area). We addressed this precise dilemma in Benjamin A. Knott, CBCA 4579-RELO, 15-1

BCA ¶ 35,961, in which we acknowledged the difficulty that employees having to stay in the

Washington, D.C., area at the standard CONUS per diem rate face while recognizing our lack

of authority to overcome it:

Although it is difficult to fathom how [the claimant] could have found

acceptable temporary lodging within the standard CONUS rate in the

Washington, D.C., area, we have previously noted that “[w]hether the

differences between the amount of allowable reimbursement of expenses for

TDY and PCS are unfair is a policy question which is for the Congress and the

regulation-writers to decide. As a quasi-judicial tribunal, we are limited to

interpreting and applying the law as it exists.” Donald L. Schaffer, CBCA

695-RELO, 07-2 BCA ¶ 33,607, at 166,436. We have no authority to grant

[the claimant] any recovery beyond the standard CONUS rate.

Knott, 15-1 BCA at 175,714.

Although Mr. Kontek asserts that it is “grossly unfair” to limit reimbursement of

temporary housing in the Washington, D.C., area to the standard CONUS rate, we have no

power to change the regulations that DOS has adopted. “The Department of State

Standardized Regulations are promulgated by the Secretary of State and have the force and

effect of law. As such, the Board does not have the authority to waive or carve an exception

to the application of these regulations.” Gordon D. Giffin, GSBCA 14425-RELO, 98-2 BCA

¶ 30,100, at 148,955 (citing Robert D. Chelburg, B-158033 (Nov. 8, 1994)). To the extent

that DOS’s rules for relocation expense reimbursement are unfair to its employees, that is a

matter that only DOS can address.

Decision

For the foregoing reasons, we must deny Mr. Kontek’s claim.

______________________________

HAROLD D. LESTER, JR.

Board Judge