B-116565, OCTOBER 20, 1953, 33 COMP. GEN. 174

B-116565: Oct 20, 1953

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THEREFORE A REVISED RENT SCHEDULE FIXING RENTS FOR GOVERNMENT-OWNED QUARTERS MAY NOT BE MADE EFFECTIVE RETROACTIVELY SO AS TO PERMIT REFUND OF AMOUNTS CHARGED FOR PERIOD PRIOR TO ISSUANCE OF REVISED RENT SCHEDULE WHICH AMOUNTS WERE IN EXCESS OF THOSE FIXED IN THE SCHEDULE. HINTON AND 50 OTHERS FOR REFUND OF ALLEGED OVER-COLLECTION OF RENT WHICH THEY WERE REQUIRED TO PAY FOR GOVERNMENT-OWNED QUARTERS OCCUPIED AT RIVERDALE. THE RATES WERE REVISED EFFECTIVE OCTOBER 19. IT IS URGED IN THE PAPERS SUBMITTED THAT THE REDUCTION IN RENTAL RATES SHOULD BE MADE EFFECTIVE RETROACTIVELY. P-46 INDICATES THAT THE RATES COVERED THEREBY WERE ESTABLISHED BY MEANS OF REGULAR APPRAISALS LOCALLY TAKING INTO CONSIDERATION VARIOUS FACTORS.

B-116565, OCTOBER 20, 1953, 33 COMP. GEN. 174

HOUSING - CIVILIAN PERSONNEL - RENTS - RETROACTIVE DECREASES WHILE STATUTORY REGULATIONS OR ADMINISTRATIVE POLICIES MAY BE MODIFIED FROM TIME TO TIME, CONSISTENT WITH APPLICABLE LAW, THEY MAY NOT BE AMENDED SO AS TO OPERATE RETROACTIVELY TO DECREASE OR INCREASE RIGHTS ALREADY VESTED OR FIXED EXCEPT TO CORRECT OBVIOUS ERRORS, AND THEREFORE A REVISED RENT SCHEDULE FIXING RENTS FOR GOVERNMENT-OWNED QUARTERS MAY NOT BE MADE EFFECTIVE RETROACTIVELY SO AS TO PERMIT REFUND OF AMOUNTS CHARGED FOR PERIOD PRIOR TO ISSUANCE OF REVISED RENT SCHEDULE WHICH AMOUNTS WERE IN EXCESS OF THOSE FIXED IN THE SCHEDULE.

COMPTROLLER GENERAL WARREN TO COLONEL R. J. B. PAGE, DEPARTMENT OF THE ARMY, OCTOBER 20, 1953:

BY 6TH ENDORSEMENT DATED AUGUST 6, 1953, ENGCZ, THE CHIEF OF ENGINEERS FORWARDED TO THIS OFFICE YOUR LETTER DATED APRIL 27, 1953, MRGCB, AND ENCLOSURES, REQUESTING A DECISION AS TO THE LEGALITY OF PROPOSED PAYMENTS BY YOU OF THE CLAIM SUBMITTED BY KENNETH A. HINTON AND 50 OTHERS FOR REFUND OF ALLEGED OVER-COLLECTION OF RENT WHICH THEY WERE REQUIRED TO PAY FOR GOVERNMENT-OWNED QUARTERS OCCUPIED AT RIVERDALE, NORTH DAKOTA, AT RATES PRESCRIBED IN DISTRICT CIRCULAR NO. P 46 DATED JUNE 28, 1952, DURING THE PERIOD JUNE 30 TO OCTOBER 18, 1952, AS EMPLOYEES OF THE CORPS OF ENGINEERS, GARRISON DISTRICT, BISMARCK, NORTH DAKOTA. THE RATES WERE REVISED EFFECTIVE OCTOBER 19, 1952, BY DISTRICT CIRCULAR NO. P-50 PURSUANT TO THE APPLICABLE LAW AND OTHER REGULATIONS REFERRED TO BELOW, AND IT IS URGED IN THE PAPERS SUBMITTED THAT THE REDUCTION IN RENTAL RATES SHOULD BE MADE EFFECTIVE RETROACTIVELY.

PARAGRAPH 3 OF CIRCULAR NO. P-46 INDICATES THAT THE RATES COVERED THEREBY WERE ESTABLISHED BY MEANS OF REGULAR APPRAISALS LOCALLY TAKING INTO CONSIDERATION VARIOUS FACTORS, AS COMPARED WITH SIMILAR ITEMS IN PRIVATE FACILITIES, IN THE FORT LINCOLN AND RIVERDALE AREAS. PARAGRAPH 5 OF THAT CIRCULAR REVEALS THAT THOSE RATES WERE PROMULGATED IN COMPLIANCE WITH A FIRM DIRECTIVE FROM "HIGHER AUTHORITY" TO PUT SUCH RATES INTO EFFECT BY JUNE 30, 1952. WHILE IT WAS THERE INDICATED THAT THE RENTAL RATES SO FIXED WERE TO BE GIVEN FURTHER CONSIDERATION UPON THE BASIS OF A SEPARATE REAPPRAISAL AND REVIEW--- AS WAS DONE--- IN ACCORDANCE WITH ST ENDORSEMENT DATED OCTOBER 8, 1952, FROM THE OFFICE OF THE CHIEF OF ENGINEERS, WASHINGTON, D.C., PARAGRAPH 2 OF DISTRICT CIRCULAR NO. P-50, DATED OCTOBER 23, 1952, PROPERLY ADVISED ALL PERSONS AND OFFICERS CONCERNED, AS FOLLOWS:

2. THE RECONSIDERATION OF THE APPROVED RENTAL RATES FOR GOVERNMENT HOUSEKEEPING AND NONHOUSEKEEPING QUARTERS REFERRED TO IN PARAGRAPH 5 OF DISTRICT CIRCULAR P-46 DATED 28 JUNE 1952, RESULTED IN A REAPPRAISAL BY A BOARD OF APPRAISERS. THAT REAPPRAISAL WAS APPROVED BY MRD AND OCE AND THE RATES ESTABLISHED ARE ATTACHED AS AN INCLOSURE TO THIS DISTRICT CIRCULAR, AND WILL BE EFFECTIVE AS OF 19 OCTOBER 1952. FULL CONSIDERATION WAS GIVEN TO THE EXPRESSED INTENT OF THE DIVISION ENGINEER (SEE PARAGRAPH 5, DISTRICT CIRCULAR P-46, DATED 28 JUNE 1952) TO MAKE THE NEW RATES RETROACTIVE TO 30 JUNE 1952, BUT THE LENGTH OF TIME NECESSARY TO MAKE FINAL DETERMINATION OF THE RATES, AND OTHER FACTORS, PRECLUDED FULFILLMENT OF THIS PROPOSAL.

IN THAT RESPECT IT IS NOTED THE NEW RATES EFFECTIVE OCTOBER 19, 1952, INCLUDED SOME INCREASES, AS WELL AS DECREASES OF RENTAL RATES IN SOME CASES, WHICH ALSO ARE NOT REGARDED AS RETROACTIVE PRIOR TO THAT DATE.

THE BASIC LAW IN THIS MATTER IS CONTAINED IN SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193 (5 U.S.C. 75A). ALSO, SECTION 1413 OF THE ACT OF JULY 15, 1952, 66 STAT. 661, RELATIVE TO FISCAL YEAR 1953, PROVIDED THAT BUREAU OF THE BUDGET CIRCULAR A-45 DATED JUNE 3, 1952, SHALL BE CONTROLLING OVER THE HOUSING RENTAL ACTIVITIES OF ALL DEPARTMENTS, AGENCIES, AND CORPORATIONS OF THE GOVERNMENT. THOSE AUTHORITIES, HOWEVER CONTAIN NO PROVISION REQUIRING THAT RETROACTIVE EFFECT BE GIVEN TO RENTAL RATES ADMINISTRATIVELY PRESCRIBED IN CONFORMANCE THEREWITH. IT IS NOTED THAT SECTION 1413, SUPRA, CONTEMPLATES THAT CIRCULAR A-45 MAY BE AMENDED OR CHANGED DURING SUCH YEAR, BUT, AS TO THE SUBMITTED CASES AND OTHERS SIMILAR, IT MUST BE HELD THAT WHILE THOSE STATUTORY REGULATIONS OR THE ADMINISTRATIVE POLICIES OF HOUSING RENTALS MAY BE SUBJECT TO MODIFICATION FROM TIME TO TIME UNDER BUDGET CIRCULAR NO. A-45, CONSISTENT WITH APPLICABLE LAW, THEY MAY NOT BE AMENDED SO AS TO OPERATE RETROACTIVELY TO DECREASE OR INCREASE A TENANT'S RIGHT ALREADY VESTED OR FIXED, EXCEPT TO CORRECT OBVIOUS ERRORS. COMPARE 17 COMP. GEN. 566; 32 ID. 316, AND 529, AND CASES THEREIN CITED.

THE REVISED SCHEDULE PROMULGATED WITH DISTRICT CIRCULAR NO. P-50 DOES NOT APPEAR TO HAVE RESULTED SOLELY FROM ANY OBVIOUS ERROR IN CIRCULAR NO. P- 46, AND BASED UPON THE PRESENT RECORD, PAYMENT OF THE INSTANT CLAIMS SHOULD BE DECLINED BY YOU IN LINE WITH THE ABOVE-CITED DECISIONS AND RULE.

THEREFORE, THE FILE AND 51 CLAIMS FORWARDED WITH YOUR LETTER OF APRIL 27, 1953, ARE RETURNED HEREWITH FOR DISPOSITION BY YOUR OFFICE IN ACCORDANCE WITH THE FOREGOING.