B-166324, APR. 1, 1969

B-166324, APR. 1, 1969

TO MR. ELMER M. GRADE:

YOUR LETTERS OF JANUARY 24, 1969, AND MARCH 1, 1969, REQUEST RECONSIDERATION OF OUR OFFICE SETTLEMENT OF JANUARY 15, 1969, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF YOUR RESIDENCE AT THE OLD OFFICIAL STATION INCIDENT TO A CHANGE OF STATION.

BY TRAVEL AUTHORIZATION DATED JANUARY 10, 1967, YOU WERE AUTHORIZED TO TRAVEL FROM DENVER, COLORADO, TO WASHINGTON, D.C. THE TRAVEL WAS TO BEGIN JANUARY 11 AND TERMINATE APPROXIMATELY JANUARY 31, 1967. WE ASSUME YOU REPORTED TO YOUR NEW DUTY STATION WITHIN THAT PERIOD. THE FILE SHOWS THAT THE SETTLEMENT DATE OF THE SALE OF YOUR RESIDENCE AT DENVER WAS AUGUST 1, 1968, OR APPROXIMATELY 18 MONTHS AFTER YOUR TRANSFER.

SECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, SETS FORTH THE FOLLOWING CONDITION FOR REIMBURSEMENT TO AN EMPLOYEE OF EXPENSES INCURRED IN REAL ESTATE TRANSACTIONS:

"THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION.'

THAT REGULATION WAS PROMULGATED BY THE BUREAU OF THE BUDGET UNDER THE AUTHORITY DELEGATED BY THE PRESIDENT AND IN ACCORDANCE WITH SECTION 23 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY THE ACT OF JULY 21, 1966, PUBLIC LAW 89-516, NOW CONTAINED IN 5 U.S.C. 5724A (A) AND PROVIDES IN PERTINENT PART:

"/A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724 (A) OF THIS TITLE:

"/4) EXPENSES OF THE SALE OF THE RESIDENCE (OR THE SETTLEMENT OF AN UNEXPIRED LEASE) OF THE EMPLOYEE AT THE OLD STATION AND PURCHASE OF A HOME AT THE NEW OFFICIAL STATION REQUIRED TO BE PAID BY HIM WHEN THE OLD AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. HOWEVER, REIMBURSEMENT FOR BROKERAGE FEES ON THE SALE OF THE RESIDENCE AND OTHER EXPENSES UNDER THIS PARAGRAPH MAY NOT EXCEED THOSE CUSTOMARILY CHARGED IN THE LOCALITY WHERE THE RESIDENCE IS LOCATED, AND REIMBURSEMENT MAY NOT BE MADE FOR LOSSES ON THE SALE OF THE RESIDENCE. THIS PARAGRAPH APPLIES REGARDLESS OF WHETHER TITLE TO THE RESIDENCE OR THE UNEXPIRED LEASE IS IN THE NAME OF THE EMPLOYEE ALONE, IN THE JOINT NAMES OF THE EMPLOYEE AND A MEMBER OF HIS IMMEDIATE FAMILY, OR IN THE NAME OF A MEMBER OF HIS IMMEDIATE FAMILY ALONE.'

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THAT SECTION TO INDICATE THAT THE CONGRESS HAD ANY SPECIFIC INTENT WITH REGARD TO THE TIME LIMITATIONS WHICH MIGHT BE IMPOSED BY THE REQUIRED IMPLEMENTING REGULATIONS. HOWEVER, THE 1-YEAR TIME LIMIT IMPOSED BY SECTION 4.1D DOES NOT APPEAR TO BE AN UNREASONABLE LIMITATION EVEN THOUGH IT IS MORE RESTRICTIVE THAN THE 2-YEAR GENERAL LIMITATION CONTAINED IN SECTION 1.3D. THE REGULATION PRESCRIBES ONLY ONE EXCEPTION WHEREBY THE DESIGNATED 1 YEAR CAN BE EXTENDED. SUCH EXCEPTION PROVIDES THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION. THERE IS NOTHING IN THE FILE TO INDICATE THAT THE DELAY IN SELLING YOUR DWELLING WAS CAUSED BY LITIGATION.

ALTHOUGH YOU WERE NOT ABLE TO SELL YOUR DWELLING UNTIL AFTER THE EXPIRATION OF THE 1-YEAR PERIOD BECAUSE OF CIRCUMSTANCES BEYOND YOUR CONTROL, THE REGULATIONS CONTAINED IN BUREAU OF THE BUDGET CIRCULAR ARE CONTROLLING AND, THEREFORE, REIMBURSEMENT OF THE COSTS INCURRED BY YOU IN SELLING YOUR DWELLING AT YOUR OLD DUTY STATION WOULD NOT BE PROPER. THE FACT THAT NEITHER YOU NOR YOUR AGENCY MIGHT NOT HAVE BEEN AWARE OF THE LIMITATION AFFORDS NO BASIS FOR ANY DIFFERENT CONCLUSION. WHILE WE RECOGNIZE THAT THIS RESULT IS AN UNFORTUNATE ONE IN THE CIRCUMSTANCES OF YOUR CASE, OUR OFFICE HAS NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.

WE NOTE THAT A BILL (H.R. 12186) WAS INTRODUCED IN THE 90TH CONGRESS PROPOSING TO AMEND 5 U.S.C. 5724A (RETROACTIVE TO JULY 1, 1966) SO AS TO PERMIT REIMBURSEMENT OF THE EXPENSES OF THE SALE OR PURCHASE OF A RESIDENCE WITHIN 2 YEARS AFTER THE DATE OF AN EMPLOYEE REPORTING FOR DUTY AT HIS NEW OFFICIAL STATION. HOWEVER, THAT BILL WAS NEVER ENACTED INTO LAW AND WE ARE NOT AWARE OF ANY SIMILAR BILL HAVING BEEN INTRODUCED IN THE PRESENT CONGRESS.

CONCERNING YOUR REQUEST THAT WE RETURN YOUR CLAIM, YOU ARE ADVISED THAT THE ORIGINAL PAPERS AND DOCUMENTS FILED IN SUPPORT OF A CLAIM AGAINST THE UNITED STATES BECOME A PART OF THE PERMANENT FILES OF OUR OFFICE AND MAY NOT BE RETURNED. HOWEVER, WE ARE RETURNING COPIES THEREOF WHICH WE TRUST WILL BE SUFFICIENT FOR WHATEVER PURPOSE DESIRED.