B-174998, MAR 27, 1972

B-174998, MAR 27, 1972

CIVILIAN EMPLOYEE - CHANGE OF STATION - REIMBURSEMENT OF REAL ESTATE EXPENSES - EXTENSION OF STATUTORY LIMITATION CONCERNING THE PRIOR DENIAL OF A CLAIM OF VERL V. VANDIVERT FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO AN OFFICIAL CHANGE OF STATION FROM SAN FRANCISCO TO DAHLGREN, VA. THE PROVISIONS OF SECTION 4.1E OF OMB CIRCULAR NO. A-56, PERMIT AN EXTENSION OF THE ONE-YEAR LIMITATION FOR REIMBURSEMENT BY AN AGENCY HEAD UPON A FINDING OF SPECIAL CIRCUMSTANCES AND THE EMPLOYEE'S GOOD FAITH. ABSENT SUCH DETERMINATION, THERE IS NO BASIS UPON WHICH THE SUBJECT CLAIM MAY BE ALLOWED. IT SHOULD BE NOTED, HOWEVER, THAT PARAGRAPH C 8350, JTR, VOL. 2, MAY BE REGARDED AS LISTING ILLUSTRATIVE EXAMPLES OF JUSTIFIABLE CIRCUMSTANCES BUT IS NOT ALL-INCLUSIVE. SINCE, IN THE INSTANT CASE, SETTLEMENT WAS DELAYED BECAUSE OF PROBLEMS IN CONSTRUCTION, THE COMP. GEN. RECOMMENDS THAT MR. VANDIVERT SEEK THE APPROVAL OF AN EXTENSION FROM THE APPROPRIATE OFFICIAL IN HIS DEPARTMENT AND UPON RECEIPT OF SUCH APPROVAL BY GAO, THE CLAIM MAY BE RECONSIDERED.

TO MR. VERL V. VANDIVERT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1971, REQUESTING RECONSIDERATION OF THE DENIAL BY SETTLEMENT CERTIFICATE ISSUED BY OUR CLAIMS DIVISION ON AUGUST 9, 1971, OF YOUR CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE PURCHASE OF A NEW RESIDENCE INCIDENT TO YOUR OFFICIAL CHANGE OF STATION FROM SAN FRANCISCO, CALIFORNIA, TO DAHLGREN, VIRGINIA.

THE RECORD SHOWS THAT YOU REPORTED TO YOUR NEW DUTY STATION ON SEPTEMBER 4, 1969, AND THAT YOU PURCHASED A BUILDING LOT ON MARCH 2, 1970. THE RECORD FURTHER SHOWS THAT ON JUNE 15, 1970, A CONTRACT FOR THE CONSTRUCTION OF A HOUSE ON THAT LOT WAS ENTERED INTO AND PARTIAL PAYMENTS TO THE CONTRACTOR WERE MADE IN JUNE, JULY AND AUGUST OF 1970. YOU INDICATE THAT YOU ESTABLISHED RESIDENCE IN THE NEW HOME ON SEPTEMBER 3, 1970. FINAL SETTLEMENT WAS NOT HOWEVER CONSUMMATED UNTIL OCTOBER 13, 1970, DUE TO CONSTRUCTION DELAYS.

SECTION 4.1E OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, PROVIDES:

"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 ***(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."

YOU STATE THAT WHEN IT BECAME APPARENT, PRIOR TO THE EXPIRATION OF THE INITIAL ONE-YEAR PERIOD OF ENTITLEMENT THAT THERE WOULD BE A DELAY IN COMPLETION OF THE HOUSE, YOU CONSULTED WITH THE HEAD OF THE EMPLOYMENT DIVISION AND WITH AN ATTORNEY-ADVISER TO WHOM YOU WERE REFERRED AND UPON THEIR ADVICE SUBMITTED A PRELIMINARY CLAIM. YOU STATE IN THIS REGARD:

" *** HAVING THUS CONSULTED WITH THE 'DESIGNEE OF THE EMPLOYING AGENCY' AND WITH THE NWL LEGAL ADVISOR, RECEIVED AND FOLLOWED THEIR ADVICE ON THE MATTER, AND HAVING FILED A PRELIMINARY CLAIM FOR REIMBURSEMENT, I HAD NO REASON TO BELIEVE THAT ANY FURTHER ACTION WAS NECESSARY AT THE TIME. HOWEVER, IF APPROVAL OF AN EXTENSION OF TIME WAS TRULY REQUIRED, I BELIEVE THAT SUCH APPROVAL IS ADEQUATELY IMPLIED IN THE EVENTS TO THAT DATE AND IN THE LATER ENDORSEMENT OF MY FINAL CLAIM BY MR. GOULDMAN AND ITS FORWARDING FOR PAYMENT BY THE CIVILIAN PERSONNEL DIRECTOR."

AS STATED IN THE SETTLEMENT CERTIFICATE, THE RECORD CONTAINS NO APPROVAL OF THE EXTENSION REQUIRED BY SECTION 4.1E OF THE CIRCULAR QUOTED ABOVE. THE MEMORANDUM DATED MARCH 23, 1971, FROM THE DIRECTOR OF CIVILIAN MAN- POWER TO THE COMMANDING OFFICER, NAVY REGIONAL FINANCE CENTER, INDICATES THAT CONSIDERATION WAS TO BE GIVEN TO THE GRANTING OF SUCH AN EXTENSION. IT IS STATED THEREIN:

"3. IN VIEW OF THE LACK OF SPECIFIC INFORMATION CONTAINED IN ENCLOSURE (2), THIS OFFICE CANNOT MAKE A DETERMINATION IN THE CASE. IT IS SUGGESTED THAT ENCLOSURE (2) BE RETURNED TO THE ACTIVITY REQUESTING THAT THE CIRCUMSTANCES JUSTIFYING THE EXTENSION BE MADE IN WRITING AND ALSO THAT IF THE REASONS ARE OF THE TYPE LISTED IN REFERENCE (B), THE EXTENSION GRANTED BE APPROVED IN WRITING BY THE COMMANDING OFFICER OF THE ACTIVITY OR HIS DESIGNEE."

WE HAVE NOT BEEN ADVISED THAT A DETERMINATION WAS ISSUED PURSUANT TO THAT MEMORANDUM. ABSENT SUCH DETERMINATION THERE IS NO PROPER BASIS FOR ALLOWING YOUR CLAIM.

PARAGRAPH C 8350, JOINT TRAVEL REGULATIONS, VOLUME 2, PROVIDES IN PERTINENT PART AS FOLLOWS:

"ACCEPTABLE REASONS FOR GRANTING EXTENSIONS UNDER THE FOREGOING ITEM 4 INCLUDE:

"1. ANY STRIKE WHICH UNDULY DELAYS CONSTRUCTION OR REMODELING BEYOND THE 1-YEAR LIMITATION,

"2. CIVIL DISTURBANCE OR SIMILAR SITUATION RENDERING PROPERTY IN THE AFFECTED AREA MORE DIFFICULT TO SELL,

"3. PENDING CONDEMNATION PROCEEDINGS WHEN ACTUAL LITIGATION HAS NOT BEEN INSTITUTED,

"4. EXTENDED TEMPORARY DUTY PRECLUDING TAKING TIMELY ACTION.

DELAYS ATTRIBUTED TO NORMAL MARKET FLUCTUATIONS AND IGNORANCE OF THE PRESCRIBED LIMITATIONS WILL NOT CONSTITUTE JUSTIFICATION FOR AN EXTENSION. DOUBTFUL CASES MAY BE SUBMITTED TO THE APPROPRIATE HEADQUARTERS OFFICE, THROUGH CHANNELS, WITH A FULL STATEMENT OF THE FACTS."

CORRESPONDENCE IN THE RECORD SUGGESTS THAT THERE MAY HAVE BEEN SOME DOUBT WHETHER, IN ACCORDANCE WITH THE ABOVE, THE CIRCUMSTANCES OF YOUR CASE WERE SUCH AS TO JUSTIFY AN EXTENSION.

WE VIEW THE CITED REGULATION AS LISTING ILLUSTRATIVE EXAMPLES OF CIRCUMSTANCES WHICH WOULD WARRANT AN EXTENSION OF THE ONE-YEAR LIMITATION, RATHER THAN STATING THE ONLY CIRCUMSTANCES UNDER WHICH AN EXTENSION MAY BE GRANTED.

INASMUCH AS THE CONTRACT FOR THE BUILDING OF YOUR RESIDENCE WAS ENTERED INTO WITHIN THE ONE-YEAR PERIOD AND SETTLEMENT DELAYED BEYOND THAT TIME BECAUSE OF PROBLEMS IN CONSTRUCTION, WE SUGGEST THAT YOU PRESENT THIS LETTER TO THE APPROPRIATE OFFICIAL IN YOUR DEPARTMENT WITH A REQUEST FOR HIS APPROVAL OF AN EXTENSION OF THE ONE-YEAR PERIOD. UPON RECEIPT OF AN APPROVAL WE SHALL RECONSIDER YOUR CLAIM.