B-168914, MAR. 18, 1970
Highlights
DISALLOWANCE OF CLAIM FOR REAL ESTATE EXPENSES IS SUSTAINED SINCE OF ENGINEERS' METHOD OF AQUIRING REAL PROPERTY. PRIOR CORRESPONDENCE FROM YOU IN EFFECT REQUEST A REVIEW OF YOUR CLAIM FOR THE SUM OF $415.88 WHICH WAS DISALLOWED IN OUR SETTLEMENT DATED OCTOBER 7. YOUR CLAIM WAS. YOU WERE ADVISED THAT CIRCULAR NO. A-56 WAS ISSUED PURSUANT TO LAW AND ITSELF HAS THE FORCE AND EFFECT OF LAW AND THAT NEITHER THE ADMINISTRATIVE OFFICE NOR THIS OFFICE HAS AUTHORITY TO MAKE EXCEPTIONS TO ITS PROVISIONS. YOU SUGGEST THAT THE DELAY IN COMPLETING THE SALE OF YOUR OLD AND THE PURCHASE OF YOUR NEW RESIDENCES WAS DUE TO DEPRESSED MARKET CONDITIONS IN AMARILLO AND TO ACTIONS OF THE CORPS OF ENGINEERS.
B-168914, MAR. 18, 1970
OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--"SETTLEMENT DATE" LIMITATION ON PROPERTY TRANSACTIONS--DEPRESSED REAL ESTATE MARKET SUBSEQUENT TO PERMANENT CHANGE OF STATION FROM AMARILLO, TEX; TO AURORA, COLO. ON 8/7/67, WHERE EMPLOYEE SOLD FORMER AMARILLO RESIDENCE, 9/30/68, AND PURCHASED AURORA RESIDENCE, 11/20/68, DISALLOWANCE OF CLAIM FOR REAL ESTATE EXPENSES IS SUSTAINED SINCE OF ENGINEERS' METHOD OF AQUIRING REAL PROPERTY, DEMONSTRATION CITIES AND METROPOLITAN DEVELOPMENT ACT, 42 U.S.C. 3374 (F), VESTS EXCLUSIVE JURISDICTION IN SEC. OF DEFENSE.
TO MR. OLNEY H. JEROME:
YOUR LETTERS OF FEBRUARY 27, 1970, DECEMBER 29, 1969, AND PRIOR CORRESPONDENCE FROM YOU IN EFFECT REQUEST A REVIEW OF YOUR CLAIM FOR THE SUM OF $415.88 WHICH WAS DISALLOWED IN OUR SETTLEMENT DATED OCTOBER 7, 1969.
THE SUM CLAIMED REPRESENTS THE REAL ESTATE EXPENSES INCURRED BY YOU ON SEPTEMBER 30, 1968, IN SELLING YOUR FORMER RESIDENCE AT AMARILLO, TEXAS, AND ON NOVEMBER 20, 1968, IN PURCHASING A RESIDENCE AT AURORA, COLORADO, INCIDENT TO THE PERMANENT CHANGE OF YOUR STATION FROM AMARILLO AIR FORCE BASE, TEXAS, TO LOWRY AIR FORCE BASE, COLORADO, UNDER SPECIAL ORDER NO. AA -1087 DATED JUNE 29, 1967. THE SALE AND PURCHASE TRANSACTIONS OCCURRED MORE THAN ONE YEAR AFTER YOU REPORTED TO DUTY AT YOUR NEW STATION ON AUGUST 7, 1967. YOUR CLAIM WAS, THEREFORE, DISALLOWED ON THE BASIS OF SECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED (1966), WHICH ESTABLISHES AS A REQUISITE TO ENTITLEMENT TO EXPENSES OF SALE AND PURCHASE OF RESIDENCES THAT THE TRANSACTIONS BE COMPLETED WITHIN ONE YEAR OF EMPLOYEE'S ARRIVAL FOR DUTY AT HIS NEW STATION. YOU WERE ADVISED THAT CIRCULAR NO. A-56 WAS ISSUED PURSUANT TO LAW AND ITSELF HAS THE FORCE AND EFFECT OF LAW AND THAT NEITHER THE ADMINISTRATIVE OFFICE NOR THIS OFFICE HAS AUTHORITY TO MAKE EXCEPTIONS TO ITS PROVISIONS.
YOUR LETTER OF DECEMBER 29 INDICATES THAT YOU WOULD NOT CONTEST THE FORCE AND EFFECT OF SECTION 4.1D OF CIRCULAR NO. A-56 "IF ALL FACTORS INVOLVED HAD BEEN NORMAL." YOU SUGGEST THAT THE DELAY IN COMPLETING THE SALE OF YOUR OLD AND THE PURCHASE OF YOUR NEW RESIDENCES WAS DUE TO DEPRESSED MARKET CONDITIONS IN AMARILLO AND TO ACTIONS OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, AND OTHER OFFICES UNDER THE REGULATIONS AND PROCEDURES PRESCRIBED FOR THE HOMEOWNERS ASSISTANCE PROGRAM PURSUANT TO SECTION 1013 OF THE DEMONSTRATION CITIES AND METROPOLITAN DEVELOPMENT ACT OF 1966, 42 U.S.C. 3374. UNFORTUNATELY THE DELAY OCCASIONED IN THE SALE OF YOUR RESIDENCE DOES NOT AFFORD ANY BASIS FOR MAKING AN EXCEPTION TO THE CITED REGULATORY REQUIREMENT, DESPITE THE FACT THAT SUCH DELAY MAY HAVE BEEN BEYOND YOUR CONTROL. IN CONNECTION WITH THE DIFFICULTIES YOU ENCOUNTERED IN DISPOSING OF YOUR RESIDENCE WE WOULD POINT OUT THAT SECTION 5724A OF TITLE 5, U.S.C. SPECIFICALLY PROVIDES IN SUBSECTION (4) THAT "REIMBURSEMENT MAY NOT BE MADE FOR LOSSES ON THE SALE OF THE RESIDENCE" AT THE OLD STATION AND THAT SUBSECTION 4.2E OF CIRCULAR NO. A-56, REVISED (1966), PROVIDES AS FOLLOWS:
"E. LOSSES DUE TO PRICES OR MARKET CONDITIONS AT THE OLD AND NEW POSTS OF DUTY. LOSSES DUE TO FAILURE TO SELL A RESIDENCE AT THE OLD OFFICIAL STATION AT THE PRICE ASKED, OR AT ITS CURRENT APPRAISED VALUE, OR AT ITS ORIGINAL COST, OR DUE TO FAILURE TO BUY A DWELLING AT THE NEW OFFICIAL STATION AT A PRICE COMPARABLE TO THE SELLING PRICE OF THE RESIDENCE AT THE OLD OFFICIAL STATION, AND ANY SIMILAR LOSSES, ARE NOT REIMBURSABLE."
AS TO YOUR STATEMENTS ABOUT THE DEPARTMENT OF THE ARMY DETERMINATION TO BUY YOUR AMARILLO RESIDENCE AND THE ESTABLISHMENT OF ITS "FAIR MARKET VALUE," WE DIRECT YOUR ATTENTION TO SUBSECTION 1013 (F) OF THE DEMONSTRATION CITIES AND METROPOLITAN DEVELOPMENT ACT, REFERRED TO, WHICH PROVIDES AS FOLLOWS:
"(F) THE TITLE TO ANY PROPERTY ACQUIRED UNDER THIS SECTION, THE ELIGIBILITY FOR, AND THE AMOUNTS OF, CASH PAYABLE, AND THE ADMINISTRATION OF THE PRECEDING PROVISIONS OF THIS SECTION, SHALL CONFORM TO SUCH REQUIREMENTS, AND SHALL BE ADMINISTERED UNDER SUCH CONDITIONS AND REGULATIONS, AS THE SECRETARY OF DEFENSE MAY PRESCRIBE. SUCH REGULATIONS SHALL ALSO PRESCRIBE THE TERMS AND CONDITIONS UNDER WHICH PAYMENTS MAY BE MADE AND INSTRUMENTS ACCEPTED UNDER THIS SECTION, AND ALL THE DETERMINATIONS AND DECISIONS MADE PURSUANT TO SUCH REGULATIONS BY THE SECRETARY OF DEFENSE REGARDING SUCH PAYMENTS AND CONVEYANCES AND THE TERMS AND CONDITIONS UNDER WHICH THEY ARE APPROVED OR DISAPPROVED, SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO JUDICIAL REVIEW."
IN VIEW OF THE EXCLUSIVE JURISDICTION VESTED IN THE SECRETARY OF DEFENSE, WE ARE NOT IN A POSITION TO COMMENT ON THE METHOD USED BY THE CORPS OF ENGINEERS IN YOUR CASE. HOWEVER, DETERMINATIONS UNDER SECTION 1013 IN NO WAY AFFECT THE RIGHTS TO REIMBURSEMENT OF REAL ESTATE EXPENSES OTHERWISE COVERED OR EXCLUDED UNDER THE PROVISIONS OF 5 U.S.C. 5724A.
IN VIEW OF THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF OCTOBER 7, 1969, IS SUSTAINED.