B-113363, FEBRUARY 5, 1953, 32 COMP. GEN. 358

B-113363, FEBRUARY 5, 1953, 32 COMP. GEN. 358

CONDEMNATION PROCEEDINGS - REIMBURSEMENT OF TENANT'S MOVING EXPENSES - CLAIM FILING LIMITATIONS THE TIME LIMITATION, PROVIDED IN SECTION 501 (B), TITLE V OF THE ACT OF SEPTEMBER 28, 1951, FOR THE PAYMENT OF CLAIMS INCIDENT TO THE ACQUISITION OF PROPERTY THROUGH CONDEMNATION PROCEEDINGS BY THE GOVERNMENT, REQUIRES THAT TENANTS OF A BUILDING SO ACQUIRED SUBMIT CLAIMS WITHIN ONE YEAR FOLLOWING THE DATE OF PHYSICALLY VACATING THE PREMISES FOR REIMBURSEMENT OF EXPENSES, LOSSES AND DAMAGES INCURRED IN MOVING.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF THE ARMY, FEBRUARY 5, 1953,*

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1953, REQUESTING A DECISION AS TO WHETHER, IN VIEW OF THE PROVISIONS OF SECTION 501 (B), TITLE V OF THE ACT OF SEPTEMBER 28, 1951, 65 STAT. 336, 364, YOU ARE AUTHORIZED TO REIMBURSE A TENANT OF THE PENNSYLVANIA ATHLETIC CLUB BUILDING FOR EXPENSES, LOSSES AND DAMAGES, INCURRED IN MOVING THEREFROM EVEN THOUGH HE DID NOT SUBMIT HIS APPLICATION FOR SUCH REIMBURSEMENT WITHIN ONE YEAR AFTER HE PHYSICALLY VACATED THE PREMISES. IN THE EVENT OF AN AFFIRMATIVE ANSWER, YOU REQUEST A DECISION AS TO THE LAST DATE FOR SUBMITTING APPLICATIONS FOR REIMBURSEMENT IN ORDER TO MEET THE STATUTORY TIME LIMITATION IMPOSED BY SAID SECTION 501 (B).

YOU STATE THAT THE PENNSYLVANIA ATHLETIC CLUB BUILDING WAS ACQUIRED BY THE INSTITUTION OF CONDEMNATION PROCEEDINGS AND THE FILING THEREIN OF A DECLARATION OF TAKING ON FEBRUARY 6, 1951; THAT AT THE TIME THE GOVERNMENT TOOK POSSESSION IT PERMITTED EIGHT OF THE TENANTS OF THE FORMER OWNER TO RETAIN THE SPACE OCCUPIED BY THEM FOR SHORT PERIODS OF TIME PENDING COMPLETION OF ARRANGEMENTS FOR OTHER QUARTERS; THAT EACH SUCH OCCUPANCY WAS CONTINUED UPON A RENTAL BASIS UNDER THE SAME TERMS AS CONTAINED IN THE TENANTS' LEASES WITH THE FORMER OWNER, AND THAT THE EIGHT TENANTS SUBSEQUENTLY MOVED FROM THE PREMISES, THE FIRST REMOVAL OCCURRING ON MARCH 31, 1951, AND THE LAST ON MAY 31, 1951. FURTHER, YOU STATE THAT ON MARCH 25, 1952, THE ACQUISITION OF THE BUILDING WAS DETERMINED BY THE CHIEF OF ENGINEERS AND THAT SEVERAL OF THE EIGHT TENANTS REFERRED TO IN YOUR LETTER WHO APPLIED FOR REIMBURSEMENT OF EXPENSES, LOSSES AND DAMAGES INCURRED IN MOVING FROM THE BUILDING FAILED TO SUBMIT THEIR APPLICATIONS WITHIN ONE YEAR AFTER THE DATE THEY PHYSICALLY VACATED THE PREMISES.

IT IS FURTHER STATED IN THE LETTER THAT WHILE IT APPEARS TO THE DEPARTMENT THAT YOU HAVE NO AUTHORITY TO REIMBURSE TENANTS WHO FAIL TO SUBMIT THEIR APPLICATIONS WITHIN ONE YEAR AFTER PHYSICALLY VACATING THE BUILDING, SUCH OPINION IS PREDICATED ON THE ASSUMPTION THAT THE APPLICABLE ONE-YEAR PERIOD IS UNAFFECTED BY EITHER (1) THE QUASI RETROACTIVE EFFECT OF THE RATIFICATION OF THE ACQUISITION OF FEBRUARY 6, 1951, AS PROVIDED IN SAID ACT OF SEPTEMBER 28, 1951; (2) THE PERIOD ELAPSING BETWEEN SUCH ENACTMENT AND THE PROMULGATION OF REGULATIONS ON FEBRUARY 19, 1952, BY THE SECRETARY OF THE ARMY; OR (3) THE PERIOD ELAPSING BETWEEN SUCH ENACTMENT AND THE PUBLICATION OF SUCH REGULATIONS IN THE FEDERAL REGISTER ON MARCH 22, 1952.

SECTION 501 (A) AND (B) OF THE ACT OF SEPTEMBER 28, 1951, 65 STAT. 363, PROVIDES, AS FOLLOWS:

(A) THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE AIR FORCE, UNDER THE DIRECTION OF THE SECRETARY OF DEFENSE, ARE RESPECTIVELY AUTHORIZED, IN ORDER TO ESTABLISH OR DEVELOP THE INSTALLATIONS AND FACILITIES AS AUTHORIZED BY THIS ACT, TO ACQUIRE LANDS AND RIGHTS PERTAINING THERETO, OR INTERESTS THEREIN, INCLUDING THE TEMPORARY USE THEREOF, BY DONATION, PURCHASE, EXCHANGE OF GOVERNMENT-OWNED LANDS, OR OTHERWISE, WITHOUT REGARD TO SECTION 3648, REVISED STATUTES, AS AMENDED. WHEN NECESSARY CONSTRUCTION OF A PUBLIC WORKS PROJECT AUTHORIZED BY THIS ACT MAY BE COMMENCED PRIOR TO APPROVAL OF TITLE TO THE UNDERLYING LAND BY THE ATTORNEY GENERAL AS REQUIRED BY SECTION 355, REVISED STATUTES, AS AMENDED.

(B) THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE AIR FORCE ARE RESPECTIVELY AUTHORIZED, TO THE EXTENT ADMINISTRATIVELY DETERMINED BY EACH TO BE FAIR AND REASONABLE UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, TO REIMBURSE THE OWNERS AND TENANTS OF LAND ACQUIRED BY THEIR DEPARTMENTS PURSUANT TO THE PROVISIONS OF THIS ACT FOR EXPENSES AND OTHER LOSSES AND DAMAGES INCURRED BY SUCH OWNERS AND TENANTS, RESPECTIVELY, IN THE PROCESS AND AS A DIRECT RESULT OF THE MOVING OF THEMSELVES AND THEIR FAMILIES AND POSSESSIONS BECAUSE OF SUCH ACQUISITION OF LAND, WHICH REIMBURSEMENT SHALL BE IN ADDITION TO, BUT NOT IN DUPLICATION OF, ANY PAYMENTS IN RESPECT OF SUCH ACQUISITION AS MAY OTHERWISE BE AUTHORIZED BY LAW: PROVIDED, THAT THE TOTAL OF SUCH REIMBURSEMENT TO THE OWNERS AND TENANTS OF ANY PARCEL OF LAND SHALL IN NO EVENT EXCEED 25 PERCENTUM OF THE FAIR VALUE OF SUCH PARCEL OF LAND AS DETERMINED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. NO PAYMENT IN REIMBURSEMENT SHALL BE MADE UNLESS APPLICATION THEREFOR, SUPPORTED BY AN ITEMIZED STATEMENT OF THE EXPENSES, LOSSES AND DAMAGES SO INCURRED, SHALL HAVE BEEN SUBMITTED TO THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED WITHIN ONE YEAR FOLLOWING THE DATE OF SUCH VACATING. THE AUTHORITY CONFERRED BY THIS SUBSECTION SHALL BE DELEGABLE BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED TO SUCH RESPONSIBLE OFFICERS OR EMPLOYEES AS HE MAY DETERMINE WITHIN THE DEPARTMENT OF DEFENSE. ALL FUNCTIONS PERFORMED UNDER THIS SUBSECTION SHALL BE EXEMPT FROM THE OPERATION OF THE ADMINISTRATIVE PROCEDURE ACT OF JUNE 11, 1946 (CH. 324, 60 STAT. 237), AS AMENDED (5 U.S.C. 1001-1011), EXCEPT AS TO THE REQUIREMENTS OF SECTION 3 OF SUCH ACT (60 STAT. 238; 5 U.S.C. 1002). ANY FUNDS APPROPRIATED PURSUANT TO THIS ACT, TO THE EXTENT AVAILABLE, MAY BE USED TO REIMBURSE THE OWNERS AND TENANTS OF SUCH ACQUIRED LANDS FOR SUCH INCURRED EXPENSES, LOSSES AND DAMAGES.

AS POINTED OUT IN YOUR LETTER, WHILE THE PROPERTY INVOLVED WAS ACQUIRED BY THE DECLARATION OF TAKING ON FEBRUARY 6, 1951, SECTION 101, TITLE I OF THE STATUTE, 65 STAT. 336, AUTHORIZED THE " ACQUISITION AND CONVERSION OF PENNSYLVANIA ATHLETIC CLUB," IN EFFECT, RATIFYING AND CONFIRMING THE ACQUISITION OF THE BUILDING AND BRINGING IT UNDER ITS PROVISIONS. SECTION 501 (B) OF THE STATUTE IN EFFECT PROHIBITS PAYMENTS THEREUNDER TO OWNERS AND TENANTS IN REIMBURSEMENT OF EXPENSES AND LOSSES UNLESS APPLICATION THEREFOR SHALL HAVE BEEN SUBMITTED TO THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED WITHIN ONE YEAR FOLLOWING THE DATE OF VACATING. SUCH PROVISION IS CLEAR AND UNAMBIGUOUS AND IS NOT SUBJECT TO CONSTRUCTION. FURTHERMORE, IT IS SELF-EXECUTING IN THAT THE LIMITATION PERIOD FOR FILING APPLICATIONS FOR REIMBURSEMENT IS IN NOWISE CONTINGENT UPON THE ISSUANCE OF REGULATIONS. THEREFORE, THE POINTS RAISED IN YOUR LETTER CONCERNING THE DATE OF THE ISSUANCE OF THE REGULATIONS AND THE REQUIREMENTS OF SECTION 3 OF THE ADMINISTRATIVE PROCEDURE ACT OF JUNE 11, 1946, 60 STAT. 238 (5 U.S.C. 1002), IN NOWISE APPEAR TO HAVE ANY BEARING UPON THE RIGHT TO REIMBURSEMENT. SPECIFICALLY THEREFORE, THE SECRETARY OF THE ARMY IS NOT AUTHORIZED TO REIMBURSE ANY OWNERS OR TENANTS FOR EXPENSES, LOSSES, AND DAMAGES INCURRED IN MOVING FROM THE BUILDING UNDER SUCH PROVISION IF THE SAID OWNER OR TENANT FAILED TO FILE HIS CLAIM FOR SUCH EXPENSES, LOSSES AND DAMAGES WITHIN THE PERIOD PRESCRIBED BY THE STATUTE, NAMELY,"WITHIN ONE YEAR FOLLOWING THE DATE OF SUCH VACATING.' FURTHERMORE, ASIDE FROM SUCH PROVISION, THERE APPEARS TO BE NO AUTHORITY TO PAY SUCH MOVING AND RELATED EXPENSES. SEE IN THIS CONNECTION THE HOLDING OF THE SUPREME COURT IN THE CASE OF UNITED STATES V. PETTY MOTOR CORP., 327 U.S. 372. SINCE THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE, IT IS UNNECESSARY TO ANSWER THE SECOND.