B-168074, OCT. 29, 1969

B-168074, OCT. 29, 1969

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--SERVICES PERFORMED BY EMPLOYEE PERFORMANCE OF LEGAL SERVICES BY CIVILIAN EMPLOYEE, IN CAPACITY OF PRIVATE ATTORNEY, INCIDENT TO SALE OF HIS RESIDENCE AT OLD OFFICIAL STATION DOES NOT JUSTIFY REIMBURSEMENT FOR COMPARABLE LEGAL FEES, SINCE UNDER SEC. 4.2C OF BUREAU OF THE BUDGET CIR. NO. A-56 PAYMENT OF FEES FOR LEGAL SERVICES REQUIRES DOCUMENTATION SHOWING EXPENSES WERE IN FACT INCURRED AND A BINDING OBLIGATION CANNOT BE CREATED BY EMPLOYEE PERFORMING SERVICE FOR HIS OWN BENEFIT.

TO MR. FLOYD P. HOUGH:

WE REFER TO YOUR LETTER OF OCTOBER 7, 1969, REFERENCE F5023-NCR (ABF), REQUESTING OUR ADVICE ON THE CLAIM OF MR. WALTER P. MULLEN FOR LEGAL EXPENSES IN CONNECTION WITH THE SALE OF HIS RESIDENCE AT HIS OLD OFFICIAL STATION.

MR. MULLEN WAS TRANSFERRED FROM THE CORPS OF ENGINEERS, CHICAGO, ILLINOIS, TO THE NATIONAL PARK SERVICE, WITH DUTY STATION IN CHESTERTON, INDIANA, EFFECTIVE NOVEMBER 17, 1968. HIS CLAIM UNDER BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, DATED OCTOBER 12, 1966, FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE SALE OF HIS OLD RESIDENCE INCLUDED $350 FOR LEGAL SERVICES WHICH HE PERFORMED HIMSELF. MR. MULLEN SAYS THAT HE PERFORMED THESE SERVICES IN THE CAPACITY OF A PRIVATE ATTORNEY AND SHOULD BE REIMBURSED FOR THEM AS IF THE WORK HAD BEEN DONE BY A THIRD PARTY.

SECTION 4.2C OF CIRCULAR NO. A-56 ALLOWS THE PAYMENT OF CERTAIN LEGAL FEES IF THEY ARE NOT INCLUDED IN THE BROKER'S FEE OR SIMILAR SERVICES FOR WHICH REIMBURSEMENT IS CLAIMED UNDER OTHER CATEGORIES. LIMITATIONS THE ALLOWANCES FOR REAL ESTATE EXPENSES ARE ENUMERATED IN SECTION 4.1, WHICH REQUIRES IN SUBSECTION E THAT THE CLAIMED EXPENSES "WERE PAID BY THE EMPLOYEE". FURTHER, SECTION 4.3A STATES THAT EACH ITEM "MUST BE SUPPORTED BY DOCUMENTATION SHOWING THAT THE EXPENSE WAS IN FACT INCURRED.' TO INCUR MEANS "TO BECOME SUBJECT TO OR LIABLE FOR" WHILE TO PAY IS DEFINED AS ,TO GIVE WHAT IS DUE IN DISCHARGE OF A DEBT.' A DEBT REQUIRES A LEGALLY ENFORCEABLE OBLIGATION AND THERE IS NONE HERE. MR. MULLEN CANNOT CREATE A BINDING OBLIGATION MERELY BY PERFORMING SERVICES FOR HIS OWN BENEFIT. THUS, IF MR. MULLEN DID NOT OWE A DEBT FOR THE LEGAL FEES INVOLVED, HE COULD NOT HAVE INCURRED NOR PAID ANY EXPENSES AS REQUIRED IN SECTION 4 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 AND, THEREFORE, IS NOT ENTITLED TO ANY REIMBURSEMENT.

THIS IS IN AGREEMENT WITH PRIOR DECISIONS IN WHICH WE DISALLOWED REIMBURSEMENT UNLESS THE EMPLOYEE COULD SHOW THAT HE HAD ACTUALLY EXPENDED THE AMOUNT IN QUESTION. ONE CASE INVOLVED AN EMPLOYEE WHO SOLD HIS OLD RESIDENCE PRIVATELY, BUT STILL CLAIMED THE STANDARD REALTOR'S FEE AS A REIMBURSABLE EXPENSE. SINCE THE EMPLOYEE HAD NOT ACTUALLY PAID OUT THE AMOUNT HE WAS SEEKING TO BE REIMBURSED FOR, WE DENIED HIS CLAIM.

IN A SITUATION ANALOGOUS TO THE INSTANT CASE, WHERE THE FORMER WIFE OF THE EMPLOYEE WAS HIRED TO SELL HIS OLD RESIDENCE, IT WAS OUR OPINION BASED ON THE FACTS PRESENTED THAT THE PAYMENT TO HER WAS A VOLUNTARY ACT ON THE PART OF THE EMPLOYEE, AND NOT A DEBT THAT WAS LEGALLY ENFORCEABLE AGAINST HIM. ACCORDINGLY, REIMBURSEMENT WAS NOT ALLOWED. B-165747, JANUARY 7, 1969.

THE SIMILARITIES BETWEEN THE INSTANT CASE AND THOSE CITED WHEN ADDED TO THE REGULATORY LANGUAGE HERE INVOLVED LEAD TO THE CONCLUSION THAT THERE CANNOT BE ANY REIMBURSEMENT FOR THE LEGAL SERVICES RENDERED BY MR. MULLEN. THEREFORE, YOU MAY NOT PROPERLY CERTIFY ANY SUCH PAYMENT TO MR. MULLEN.