B-174315, NOV 15, 1971

B-174315: Nov 15, 1971

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THE SALE WAS DELAYED BY A CLOUD ON THE TITLE. AN EXTENSION OF THE ONE YEAR LIMIT ON ENTITLEMENT TO REIMBURSEMENT MAY BE GRANTED ONLY WHEN CIRCUMSTANCES JUSTIFY A DELAY AND A VALID CONTRACT WAS ENTERED INTO DURING THE INITIAL ONE YEAR PERIOD. NO LITIGATION WAS INVOLVED. THERE IS NO INDICATION THAT THE ORIGINAL CONTRACT FOR SALE OF THE RESIDENCE WAS MADE DURING THE FIRST YEAR. SECRETARY: REFERENCE IS MADE TO LETTER DATED OCTOBER 8. ELLSWORTH WAS AUTHORIZED A CHANGE OF OFFICIAL STATION FROM MIAMI. THE DATE OF CLOSING OR SETTLEMENT FOR THE SALE OF HIS DWELLING AT THE OLD OFFICIAL DUTY STATION WAS NOT UNTIL JULY 17. TO EXPLAIN THIS DELAY THERE HAS BEEN OFFERED FOR THE RECORD EVIDENCE WHICH INDICATES THAT THE DELAY IN CONCLUDING THE SALE OF THE RESIDENCE AT THE OLD DUTY STATION WAS CAUSED BY THE DISCOVERY OF A CLOUD ON THE TITLE OF THAT PROPERTY.

B-174315, NOV 15, 1971

CIVILIAN EMPLOYEE - REAL ESTATE EXPENSES - EXTENSION OF TIME DECISION CONCERNING CLAIM OF MR. STEPHEN D. ELLSWORTH FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN THE SALE OF HIS RESIDENCE AT HIS OLD DUTY STATION COMPLETED NEARLY TWO YEARS AFTER HE REPORTED TO HIS NEW STATION. THE SALE WAS DELAYED BY A CLOUD ON THE TITLE. AN EXTENSION OF THE ONE YEAR LIMIT ON ENTITLEMENT TO REIMBURSEMENT MAY BE GRANTED ONLY WHEN CIRCUMSTANCES JUSTIFY A DELAY AND A VALID CONTRACT WAS ENTERED INTO DURING THE INITIAL ONE YEAR PERIOD. HERE, NO LITIGATION WAS INVOLVED. AND WHILE THE REASON FOR DELAY WOULD APPEAR JUSTIFIED, THERE IS NO INDICATION THAT THE ORIGINAL CONTRACT FOR SALE OF THE RESIDENCE WAS MADE DURING THE FIRST YEAR. IN THE ABSENCE OF SUCH INFORMATION, REIMBURSEMENT MAY NOT BE MADE.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED OCTOBER 8, 1971, WITH ENCLOSURES, FROM YOUR ASSOCIATE ASSISTANT SECRETARY FOR FINANCIAL MANAGEMENT, REQUESTING OUR DECISION AS TO WHETHER A VOUCHER IN FAVOR OF MR. STEPHEN D. ELLSWORTH FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED BY THE SALE OF HIS RESIDENCE AT HIS OLD OFFICIAL DUTY STATION MAY BE CERTIFIED FOR PAYMENT IN VIEW OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56, REVISED JUNE 26, 1969, SECTION 4.1E(2).

THE RECORD INDICATES THAT MR. ELLSWORTH WAS AUTHORIZED A CHANGE OF OFFICIAL STATION FROM MIAMI, FLORIDA, TO SARASOTA, FLORIDA, UNDER TRAVEL ORDER NO. ATL-70-4 DATED JULY 11, 1969, FOR TRAVEL TO BEGIN ON JULY 13, 1969. MR. ELLSWORTH ARRIVED AT THE NEW DUTY STATION ON JULY 27, 1969, HOWEVER, THE DATE OF CLOSING OR SETTLEMENT FOR THE SALE OF HIS DWELLING AT THE OLD OFFICIAL DUTY STATION WAS NOT UNTIL JULY 17, 1971, ALMOST 2 YEARS AFTER HE REPORTED TO THE SARASOTA DUTY STATION. TO EXPLAIN THIS DELAY THERE HAS BEEN OFFERED FOR THE RECORD EVIDENCE WHICH INDICATES THAT THE DELAY IN CONCLUDING THE SALE OF THE RESIDENCE AT THE OLD DUTY STATION WAS CAUSED BY THE DISCOVERY OF A CLOUD ON THE TITLE OF THAT PROPERTY.

MR. ELLSWORTH IS NOW REQUESTING REIMBURSEMENT FOR THE EXPENSES INCURRED FOR THE JULY 17, 1971 SETTLEMENT APPARENTLY ON THE BASIS THAT HE SHOULD BE GRANTED AN EXTENSION OF THE ONE-YEAR TIME LIMIT WHICH IS PLACED ON HOUSING SETTLEMENTS BY SECTION 4.1E OF OMB CIRCULAR NO. A 56.

WITH REGARD TO THIS PROBLEM, YOUR OFFICE HAS STATED:

" *** THIS OFFICE DOES NOT FEEL THAT THE REASON FOR THE DELAY IN CONSUMMATING THE SALE FALLS WITHIN THE PROVISIONS OF SECTION 4.1E OF THE CIRCULAR FOR GRANTING AN EXTENSION OF TIME."

SECTION 4.1E OF OMB CIRCULAR NO. A-56 STATES:

"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."

WITH REGARD TO SUBSECTION (1) OF THE ABOVE-QUOTED SECTION, WE HAVE HELD THAT THE TERM "LITIGATIO(" MEANS A CONTEST IN A COURT OF JUSTICE FOR THE PURPOSE OF ENFORCING A RIGHT; A JUDICIAL CONTEST; A JUDICIAL CONTROVERSY; A SUIT AT LAW. 48 COMP. GEN. 71 (1968). SINCE THERE IS NO EVIDENCE THAT A SUIT AT LAW WAS EVER INITIATED BY MR. ELLSWORTH TO CLEAR THE TITLE TO THE PROPERTY IN QUESTION, IT CANNOT BE SAID THAT THE SALE OF HIS RESIDENCE WAS DELAYED BY LITIGATION. B-163700, MAY 6, 1968.

UNDER SUBSECTION (2) OF THE ABOVE-QUOTED SECTION, IN ORDER FOR AN EXTENSION OF TIME TO BE GRANTED, THERE MUST HAVE BEEN IN EXISTENCE A CONTRACT FOR THE SALE OF THE RESIDENCE ENTERED INTO WITHIN THE INITIAL ONE -YEAR PERIOD FROM THE DATE OF REPORTING AT THE NEW DUTY STATION. UNLESS THIS CONDITION IS SATISFIED, THERE IS NO BASIS FOR GRANTING AN EXTENSION OF THE INITIAL ONE-YEAR PERIOD FOR SETTLEMENT. B-171085, DECEMBER 28, 1970; B-163955, OCTOBER 7, 1969.

WHILE THE REASON FOR DELAY WOULD APPEAR TO SUPPORT THE GRANTING OF AN EXTENSION OF TIME, THERE IS NO INDICATION THAT THE ORIGINAL CONTRACT FOR THE SALE OF THE DWELLING WAS IN EXISTENCE WITHIN THE FIRST YEAR AFTER MR. ELLSWORTH REPORTED TO HIS NEW OFFICIAL STATION. IN THE ABSENCE OF SUCH INFORMATION, NO BASIS WOULD EXIST FOR EXTENSION TO BE GRANTED BY YOUR AGENCY TO MR. ELLSWORTH SO AS TO PERMIT REIMBURSEMENT OF THE EXPENSES CLAIMED.

THE VOUCHER, WITH ACCOMPANYING PAPERS, IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT ON THE BASIS OF THE PRESENT RECORD.