B-171085, DEC. 28, 1970

B-171085: Dec 28, 1970

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THE AMENDMENT ALLOWING AN EXTENSION OF ONE-YEAR IS NOT RETROACTIVE AND SECOND. IT IS PERMITTED ONLY IF CONTRACT FOR PURCHASE OR SALE IS ENTERED INTO BY AN EMPLOYEE WITHIN THE INITIAL ONE YEAR PERIOD. NEITHER OF WHICH IS HERE PRESENT. CEISLER AND EDWARDS: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 4. THE PERTINENT FACTS AND CIRCUMSTANCES GIVING RISE TO THE CLAIM WERE STATED IN OUR OFFICE SETTLEMENT AND NEED NOT BE REPEATED HERE EXCEPT FOR CLARIFICATION PURPOSES. THE CLAIM WAS DISALLOWED BECAUSE THE PURCHASE AND SALE OF THE RESIDENCES DID NOT OCCUR WITHIN ONE YEAR FROM THE DATE THE EMPLOYEE REPORTED FOR DUTY AT HIS NEW STATION AS REQUIRED BY APPLICABLE REGULATIONS. IT WAS NOTED THEREIN THAT AN AMENDMENT TO REGULATIONS EFFECTIVE JUNE 26.

B-171085, DEC. 28, 1970

TRANSFERS - INCIDENTAL EXPENSES - SALE AND PURCHASE OF RESIDENCE AFFIRMING PRIOR DECISION DISALLOWING CLAIM FOR REIMBURSEMENT OF EXPENSES IN CONNECTION WITH THE SALE AND PURCHASE OF RESIDENCES INCIDENT TO TRANSFER OF OFFICIAL STATION OF AN EMPLOYEE OF THE DEPARTMENT OF TRANSPORTATION. WHERE CLAIMANT REQUESTS EXTENSION OF ONE YEAR LIMITATION IMPOSED BY SECTION 4.1E OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, WHICH SETS FORTH CERTAIN REQUIREMENTS AND CONDITIONS FOR ENTITLEMENT TO REIMBURSEMENT OF REAL ESTATE EXPENSES, IT SHOULD BE NOTED FIRST, THE AMENDMENT ALLOWING AN EXTENSION OF ONE-YEAR IS NOT RETROACTIVE AND SECOND, IT IS PERMITTED ONLY IF CONTRACT FOR PURCHASE OR SALE IS ENTERED INTO BY AN EMPLOYEE WITHIN THE INITIAL ONE YEAR PERIOD, NEITHER OF WHICH IS HERE PRESENT. THEREFORE, THE CLAIM MUST BE DISALLOWED.

TO PATRONO, CEISLER AND EDWARDS:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 4, 1970, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MARCH 18, 1970, DENYING THE CLAIM OF MR. HANNIBAL C. TRAPUZZANO FOR REIMBURSEMENT OF EXPENSES INVOLVED IN CONNECTION WITH THE SALE AND PURCHASE OF RESIDENCES INCIDENT TO HIS TRANSFER OF OFFICIAL STATION FROM HAGERSTOWN TO BALTIMORE, MARYLAND, AS AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION.

THE PERTINENT FACTS AND CIRCUMSTANCES GIVING RISE TO THE CLAIM WERE STATED IN OUR OFFICE SETTLEMENT AND NEED NOT BE REPEATED HERE EXCEPT FOR CLARIFICATION PURPOSES.

THE CLAIM WAS DISALLOWED BECAUSE THE PURCHASE AND SALE OF THE RESIDENCES DID NOT OCCUR WITHIN ONE YEAR FROM THE DATE THE EMPLOYEE REPORTED FOR DUTY AT HIS NEW STATION AS REQUIRED BY APPLICABLE REGULATIONS. ALSO, IT WAS NOTED THEREIN THAT AN AMENDMENT TO REGULATIONS EFFECTIVE JUNE 26, 1969, WHICH PERMITTED EXTENSION OF ONE YEAR PERIOD UNDER CERTAIN CIRCUMSTANCES WAS NOT APPLICABLE BECAUSE IT WAS NOT RETROACTIVE AND COVERS ONLY THOSE CASES WHERE THE ONE-YEAR PERIOD HAD NOT EXPIRED ON THE EFFECTIVE DATE OF THE AMENDMENT. MR. TRAPUZZANO REPORTED TO HIS NEW DUTY STATION ON JANUARY 29, 1968, WHEREAS THE SALE OF HIS RESIDENCE AT HIS OLD STATION DID NOT OCCUR UNTIL JUNE 27, 1969, AND THE PURCHASE OF A RESIDENCE AT HIS NEW DUTY STATION DID NOT TAKE PLACE UNTIL NOVEMBER 26, 1969.

IT IS YOUR CONTENTION THAT THE AMENDED REGULATIONS EFFECTIVE JUNE 26, 1969, ARE APPLICABLE BECAUSE THE EMPLOYEE'S RIGHT TO MAKE CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES CAME INTO EXISTENCE ON JUNE 27, 1969, AND ON NOVEMBER 26, 1969, WHEN THE RESPECTIVE LOSSES (EXPENSES) OCCURRED, AND BECAME VALID ON DECEMBER 16, 1969, WHEN HE MADE AN OFFICIAL CLAIM FOR REIMBURSEMENT. ALSO YOU ARE MAKING APPLICATION FOR AN EXTENSION OF TIME UNDER THE AMENDED REGULATIONS ON THE BASIS OF THE PREGNANCY OF THE EMPLOYEE'S WIFE, THE SUBSEQUENT BIRTH OF A CHILD, AND THE EXTREME DIFFICULTY HE EXPERIENCED IN SELLING HIS OLD RESIDENCE IN HAGERSTOWN.

THE REGULATIONS TO WHICH YOU REFER (SECTION 4.1E OF BUREAU OF THE BUDGET CIRCULAR NO. A-56), WHICH SET FORTH CERTAIN REQUIREMENTS AND CONDITIONS FOR ENTITLEMENT TO REIMBURSEMENT OF REAL ESTATE EXPENSES, WERE AMENDED ON JUNE 26, 1969, TO READ AS FOLLOWS:

"E. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT (1) AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION OR (2) AN ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF ONE YEAR MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN HE DETERMINES THAT CIRCUMSTANCES JUSTIFYING THE EXCEPTION EXIST WHICH PRECLUDED SETTLEMENT WITHIN THE INITIAL ONE-YEAR PERIOD OF THE SALE/PURCHASE CONTRACTS OR LEASE TERMINATION ARRANGEMENT ENTERED INTO IN GOOD FAITH BY THE EMPLOYEE WITHIN THE INITIAL ONE-YEAR PERIOD. THE CIRCUMSTANCES WHICH ARE DETERMINED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE TO JUSTIFY THE EXCEPTION UNDER (2) ABOVE SHALL BE SET FORTH IN WRITING."

WE CANNOT AGREE THAT MR. TRAPUZZANO'S CASE FALLS WITHIN THE PURVIEW OF THE AMENDED REGULATIONS. IT SHOULD BE NOTED THAT AN EXTENSION OF TIME IS PERMITTED THEREUNDER ONLY IF A CONTRACT FOR PURCHASE OR SALE IS ENTERED INTO BY AN EMPLOYEE WITHIN THE INITIAL ONE-YEAR PERIOD. SEE ENCLOSED COPY OF OUR DECISION B-163955, OCTOBER 7, 1969. HERE, THE RECORD DISCLOSES THAT NEITHER A CONTRACT FOR SALE OF THE EMPLOYEE'S OLD RESIDENCE NOR A CONTRACT TO PURCHASE A NEW RESIDENCE WAS ENTERED INTO DURING THE INITIAL ONE-YEAR PERIOD. MOREOVER, AS A MATTER OF INFORMATION ANY EXTENSION OF TIME UNDER THE REGULATIONS IS FOR CONSIDERATION BY AN EMPLOYEE'S AGENCY AND NOT THIS OFFICE.

IN VIEW OF THE FOREGOING, THE SETTLEMENT OF MARCH 18, 1970, DISALLOWING MR. TRAPUZZANO'S CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES MUST BE SUSTAINED.

AS TO THE APPROPRIATE AVENUE OF APPEAL FROM OUR DECISION YOU ARE ADVISED THAT NO SPECIFIC PROVISION IS MADE THEREFOR. HOWEVER, WE DIRECT YOUR ATTENTION TO 28 U.S.C. 1346 AND 1491 PERTAINING TO MATTERS COGNIZABLE IN THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS.