B-169224, APR. 8, 1970

B-169224: Apr 8, 1970

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WHICH WAS DISALLOWED UNDER BOB CIR. BECAUSE SETTLEMENT NOT EFFECTED WITHIN REQUIRED 1-YEAR PERIOD AND LITIGATION EXCEPTION WAS NOT APPLICABLE. FAILS TO CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT REPORTING TO CONGRESS SINCE BOTH CLAIMANT AND SBA OFFICIAL ADVISING HIM RESPECTING SETTLEMENT DELAY ARE CHARGED WITH CONSTRUCTIVE NOTICE OF APPLICABLE REGULATIONS. H. DIXON SMITH: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26. THE RECORD SHOWS THAT IN CONNECTION WITH CERTAIN PERSONAL REQUIREMENTS YOU REQUESTED A DEFERMENT FOR MOVEMENT OF YOUR HOUSEHOLD GOODS AND INCURRENCE OF RELATED EXPENSES AND THAT YOU WERE INFORMED BY OFFICIALS OF THE SMALL BUSINESS ADMINISTRATION THAT YOU COULD DELAY MOVEMENT OF YOUR HOUSEHOLD GOODS FOR TWO YEARS.

B-169224, APR. 8, 1970

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--"SETTLEMENT DATE" LIMITATION ON PROPERTY TRANSACTIONS--ADMINISTRATIVE ERROR CLAIM FOR REAL ESTATE EXPENSES BY TRANSFERRED EMPLOYEE, WHICH WAS DISALLOWED UNDER BOB CIR. NO. A-56, SEC. 4.1D, BECAUSE SETTLEMENT NOT EFFECTED WITHIN REQUIRED 1-YEAR PERIOD AND LITIGATION EXCEPTION WAS NOT APPLICABLE, FAILS TO CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT REPORTING TO CONGRESS SINCE BOTH CLAIMANT AND SBA OFFICIAL ADVISING HIM RESPECTING SETTLEMENT DELAY ARE CHARGED WITH CONSTRUCTIVE NOTICE OF APPLICABLE REGULATIONS, AND MERE FACT THAT GOVT. OFFICIAL EXCEEDS HIS AUTHORITY IN GRANTING UNAUTHORIZED BENEFITS SHOULD NOT CONSTITUTE BASIS FOR REQUEST OF EQUITABLE RELIEF UNDER 31 U.S.C. 236. SEE B-168630, JAN. 23, 1970.

TO MR. H. DIXON SMITH:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1970, IN WHICH YOU APPEAL THE SETTLEMENT BY OUR CLAIMS DIVISION DENYING YOUR CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH YOUR TRANSFER FROM RICHMOND, VIRGINIA, TO WASHINGTON, D.C; EFFECTIVE AUGUST 1, 1967.

THE RECORD SHOWS THAT IN CONNECTION WITH CERTAIN PERSONAL REQUIREMENTS YOU REQUESTED A DEFERMENT FOR MOVEMENT OF YOUR HOUSEHOLD GOODS AND INCURRENCE OF RELATED EXPENSES AND THAT YOU WERE INFORMED BY OFFICIALS OF THE SMALL BUSINESS ADMINISTRATION THAT YOU COULD DELAY MOVEMENT OF YOUR HOUSEHOLD GOODS FOR TWO YEARS. YOUR INTERPRETATION WAS THAT AUTHORITY FOR THIS TWO-YEAR DELAY APPLIED TO THE SETTLEMENT OF YOUR REAL ESTATE TRANSACTIONS. YOU SETTLED FOR THE SALE OF YOUR RESIDENCE AT THE OLD OFFICIAL STATION ON JULY 15, 1969, AND FOR THE PURCHASE OF A RESIDENCE AT YOUR NEW OFFICIAL STATION ON JULY 16, 1969.

YOUR CLAIM FOR REIMBURSEMENT OF ALLOWABLE REAL ESTATE EXPENSES WAS DISALLOWED ON THE GROUND THAT SECTION 4.1D, BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, PROVIDES FOR THE REIMBURSEMENT OF REAL ESTATE EXPENSES WHEN THE SETTLEMENT DATES "ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION * * *." AN EXCEPTION TO THIS RULE COVERS EXTENSION BY THE HEAD OF AN AGENCY OF THE DEADLINE FOR SETTLEMENT BUT ONLY WHEN SETTLEMENT IS DELAYED BY REASON OF LITIGATION. SINCE THERE WAS NO LITIGATION IN YOUR CASE AND THE SETTLEMENT DATES OCCURRED MORE THAN ONE YEAR AFTER YOU REPORTED FOR DUTY AT YOUR NEW OFFICIAL STATION, YOUR CLAIM WAS DISALLOWED.

ALTHOUGH CIRCULAR NO. A-56 WAS REVISED AS OF JUNE 26, 1969, TO AUTHORIZE EXTENSION OF SETTLEMENT DATE DEADLINES FOR REASONS OTHER THAN LITIGATION, THERE REMAINS A REQUIREMENT THAT ARRANGEMENTS FOR THE SALE OR PURCHASE INVOLVED BE ENTERED INTO WITHIN ONE YEAR. SEE SUBSECTION 4.1E.

IN YOUR LETTER OF FEBRUARY 26, 1970, YOU REQUESTED RECONSIDERATION OF THE SETTLEMENT ON EQUITABLE PRINCIPLES. IN THIS CONNECTION, THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

IN CONSIDERING THE EQUITABLE MERITS OF YOUR CLAIM, WE MUST NOTE THAT BOTH YOU AND THE AGENCY OFFICIAL WHO ADVISED YOU WITH RESPECT TO DELAYING YOUR MOVE ARE CHARGEABLE WITH CONSTRUCTIVE NOTICE OF THE REGULATORY PROVISIONS OF BUREAU OF THE BUDGET CIRCULAR NO. A-56. IN DECISION B-168630, DATED JANUARY 23, 1970, CONCERNING AN ADMINISTRATIVELY ERRONEOUS AUTHORIZATION OF TRAVEL AND TRANSPORTATION EXPENSES, WE STATED THAT:

"* * * THE MERE FACT THAT AN OFFICIAL OF THE GOVERNMENT EXCEEDS HIS AUTHORITY IN GRANTING A BENEFIT IN EXCESS OF THAT AUTHORIZED BY LAW DOES NOT AND SHOULD NOT CONSTITUTE A BASIS FOR OUR OFFICE REQUESTING EQUITABLE RELIEF UNDER THE QUOTED STATUTE. NUMEROUS OVERPAYMENTS RESULT FROM ERRORS OR UNAUTHORIZED ACTS ON THE PART OF GOVERNMENT OFFICIALS OR EMPLOYEES. OUR OFFICE WERE TO RECOMMEND AND THE CONGRESS TO ENACT RELIEF LEGISLATION IN ALL SUCH CASES, THE EFFECT WOULD BE TO SERIOUSLY WEAKEN THE VARIOUS STATUTORY AND REGULATORY RESTRICTIONS IMPOSED TO INSURE THE EQUAL AND UNIFORM ADMINISTRATION OF EMPLOYEE BENEFITS."

ACCORDINGLY, WE DO NOT CONSIDER THAT YOUR CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, AND, THEREFORE, WE MUST DECLINE TO MAKE ANY RECOMMENDATION TO THE CONGRESS UNDER THE AUTHORITY OF SUCH STATUTE. THE SETTLEMENT, THEREFORE, IS HEREBY SUSTAINED.