B-180945, AUG 29, 1974

B-180945: Aug 29, 1974

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MAY NOT BE REIMBURSED ATTORNEY'S FEE AS SPECIFIC COSTS ARE NOT ATTRIBUTED TO EACH ITEM IN LIST OF CHARGEABLE ITEMS SUBMITTED BY ATTORNEY. CERTAIN OF THE CHARGEABLE ITEMS ARE ADVISORY AND THUS NONREIMBURSABLE. THUS A DETERMINATION OF COSTS FOR ITEMS WHICH ARE REIMBURSABLE CANNOT BE MADE. 2. THE PROPERTY WAS REQUIRED TO BE VACATED BY A COUNTY ORDINANCE SINCE ONE OF THE PARCELS DID NOT HAVE ANY FRONTAGE ON THE STREET. VACATION WOULD NOT HAVE BEEN REQUIRED IF EMPLOYEE HAD SOLD HIS PROPERTY IN ONE PARCEL AS IS CUSTOMARY. A. STANLEY DALTON - LEGAL FEE INCIDENT TO SALE OF RESIDENCE: THIS ACTION IS A RECONSIDERATION OF A SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED DECEMBER 4. DALTON WAS AUTHORIZED A PERMANENT CHANGE OF STATION FROM WRIGHT-PATTERSON AFB.

B-180945, AUG 29, 1974

1. CIVILIAN EMPLOYEE, WHO MADE PERMANENT CHANGE OF STATION MOVE AND INCURRED LEGAL EXPENSES FOR DEPLATTING/REPLATTING INCIDENT TO THE SALE OF HIS RESIDENCE AND LAND IN TWO PARCELS, MAY NOT BE REIMBURSED ATTORNEY'S FEE AS SPECIFIC COSTS ARE NOT ATTRIBUTED TO EACH ITEM IN LIST OF CHARGEABLE ITEMS SUBMITTED BY ATTORNEY, CERTAIN OF THE CHARGEABLE ITEMS ARE ADVISORY AND THUS NONREIMBURSABLE, AND THUS A DETERMINATION OF COSTS FOR ITEMS WHICH ARE REIMBURSABLE CANNOT BE MADE. 2. CIVILIAN EMPLOYEE, WHO MADE PERMANENT CHANGE OF STATION MOVE AND WHO INCURRED LEGAL EXPENSES FOR DEPLATTING/REPLATTING INCIDENT TO THE SALE OF HIS RESIDENCE AND LAND IN TWO PARCELS, MAY NOT BE REIMBURSED ATTORNEY'S FEE SINCE EMPLOYEE INCURRED EXPENSE SOLELY BECAUSE MARKET CONDITIONS FORCED HIM TO SELL HIS LARGE PROPERTY IN TWO PARCELS, THE PROPERTY WAS REQUIRED TO BE VACATED BY A COUNTY ORDINANCE SINCE ONE OF THE PARCELS DID NOT HAVE ANY FRONTAGE ON THE STREET, AND VACATION WOULD NOT HAVE BEEN REQUIRED IF EMPLOYEE HAD SOLD HIS PROPERTY IN ONE PARCEL AS IS CUSTOMARY.

A. STANLEY DALTON - LEGAL FEE INCIDENT TO SALE OF RESIDENCE:

THIS ACTION IS A RECONSIDERATION OF A SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED DECEMBER 4, 1973, DISALLOWING THE CLAIM OF MR. A. STANLEY DALTON, AND EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, FOR LEGAL FEES INCIDENT TO THE SALE OF HIS RESIDENCE INCURRED IN CONNECTION WITH HIS CHANGE OF STATION MOVE FROM WRIGHT PATTERSON AIR FORCE BASE (AFB), OHIO, TO TYNDALL AFB, FLORIDA, IN JULY 1972.

THE RECORD SHOWS THAT MR. DALTON WAS AUTHORIZED A PERMANENT CHANGE OF STATION FROM WRIGHT-PATTERSON AFB, OHIO, TO TYNDALL AFB, FLORIDA, IN MARCH 1972. IN CONNECTION WITH HIS CHANGE OF STATION MR. DALTON INCURRED REAL ESTATE EXPENSES IN THE SALE OF HIS OHIO RESIDENCE WHICH WAS SITUATED ON FOUR ACRES OF LAND. A SETTLEMENT FOR REAL ESTATE EXPENSES WAS MADE BY TYNDALL AFB ON VOUCHER T-8175, DATED FEBRUARY 22, 1973, IN THE AMOUNT OF $3,479.55, WHICH WAS $500 LESS THAN THE AMOUNT CLAIMED BY MR. DALTON. THE $500 DENIED BY TYNDALL AFB WAS FOR AN ATTORNEY'S FEE FOR LEGAL SERVICES RENDERED INCIDENT TO THE DEPLATTING/REPLATTING (VACATION) OF MR. DALTON'S PROPERTY. APPARENTLY VACATION OF THE PROPERTY WAS NECESSARY BECAUSE MR. DALTON WAS SELLING HIS PROPERTY IN TWO PORTIONS TO TWO SEPARATE BUYERS AND THE COUNTY PLANNING COMMISSION WOULD NOT APPROVE THE RESUBDIVIDED LOT SINCE EACH SUBDIVIDED PARCEL REQUIRED 100-FOOT FRONTAGE ON A DEDICATED THOROUGHFARE AND ONE OF THE PARCELS DID NOT HAVE SUCH 100-FOOT FRONTAGE. THE AIR FORCE DENIED REIMBURSEMENT OF THE $500 LEGAL FEE FOR THE VACATION SERVICES ON THE BASIS THAT IT WAS NOT A REQUIRED STEP IN ORDER TO SELL THE PROPERTY. IN THIS CONNECTION THE AIR FORCE STATED THAT THE VACATION ACTION WAS TAKEN BECAUSE OF POOR MARKET CONDITIONS AND IN ORDER TO ENHANCE THE VALUE OF THE PROPERTY AND SUCH REASONS ARE NOT PROPER BASES FOR INCURRING REIMBURSABLE EXPENSES.

MR. DALTON, INCIDENT TO HIS CLAIM TO OUR OFFICE, STATED THAT THE VACATION ACTION WAS LEGALLY REQUIRED AND WAS, THEREFORE, A JUSTIFIABLE EXPENSE. MOREOVER, HE STATED THAT HE RELIED ON AIR FORCE PERSONNEL WHO ADVISED THE REIMBURSEMENT FOR THE VACATION EXPENSES WOULD BE FORTHCOMING. THE SETTLEMENT LETTER OF DECEMBER 4, 1973, DISALLOWED THE CLAIM SINCE (1) REIMBURSABLE COSTS ARE ONLY THOSE WHICH ARE NORMALLY CONNECTED WITH REAL ESTATE ACTION AND NOT EXTRAORDINARY COSTS WHICH MAY ARISE IN CONNECTION WITH A PARTICULAR TRANSACTION, AND (2) THE ATTORNEY'S FEE WAS NOT BROKEN DOWN INTO SPECIFIC MONETARY AMOUNTS ALLOCABLE TO THE VARIOUS TYPES OF SERVICES AND THUS ALLOWABLE COSTS COULD NOT BE ASCERTAINED. THE SETTLEMENT LETTER FURTHER STATED:

"*** LEGAL SERVICES OF AN ADVISORY NATURE AS DISTINGUISHED FROM COST OF PREPARING CONTRACTS, CONVEYANCES, ETC., MAY BE REIMBURSED ***."

EXAMINATION OF THE SETTLEMENT SHOWS THAT THE WORD "NOT" BETWEEN THE WORDS "MAY" AND "BE" IN THE ABOVE SENTENCE WERE INADVERTENTLY OMITTED. HOWEVER, ACTING UPON THE ERRONEOUS STATEMENT MR. DALTON HAS SUBMITTED A LIST OF THE SPECIFIC SERVICES PERFORMED BY HIS ATTORNEY AND STATES THAT THE SERVICES ARE ALL ADVISORY IN NATURE.

SECTION 4.2C OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A 56, EFFECTIVE SEPTEMBER 1, 1971, PROVIDES AS FOLLOWS:

"C. LEGAL AND RELATED COSTS. TO THE EXTENT SUCH COSTS HAVE NOT BEEN INCLUDED IN BROKERS' OR SIMILAR SERVICES FOR WHICH REIMBURSEMENT IS CLAIMED UNDER OTHER CATEGORIES, THE FOLLOWING EXPENSES ARE REIMBURSABLE WITH RESPECT TO THE SALE AND PURCHASE OF RESIDENCES IF THEY ARE CUSTOMARILY PAID BY THE SELLER OF RESIDENCE AT THE OLD OFFICIAL STATION OR IF CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE AT THE NEW OFFICIAL STATION OR IF CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE AT THE NEW OFFICIAL STATION, TO THE EXTENT THEY DO NOT EXCEED AMOUNTS CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE: COSTS OF (1) SEARCHING TITLE, PREPARING ABSTRACT, AND LEGAL FEES FOR A TITLE OPINION, OR (2) WHERE CUSTOMARILY FURNISHED BY THE SELLER, THE COST OF A TITLE INSURANCE POLICY; COSTS OF PREPARING CONVEYANCES, OTHER INSTRUMENTS, AND CONTRACTS; RELATED NOTARY FEES AND RECORDING FEES; COSTS OF MAKING SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR LEGAL OR FINANCING PURPOSES; AND SIMILAR EXPENSES. COSTS OF LITIGATION ARE NOT REIMBURSABLE."

OUR PRIOR DECISIONS HAVE HELD THAT SECTION 4.2C DOES NOT PURPORT TO AUTHORIZE REIMBURSEMENT OF FEES OF ATTORNEYS RETAINED BY EMPLOYEES TO REPRESENT AND COUNSEL THEM IN REAL ESTATE TRANSACTIONS. 48 COMP. GEN. 469 (1969). THEREFORE, WHEN REIMBURSEMENT IS REQUESTED FOR LEGAL EXPENSES IT IS NECESSARY THAT EACH CHARGEABLE ITEM BE LISTED WITH A SPECIFIC MONETARY AMOUNT SO THAT THE AMOUNT OF THE VARIOUS ALLOWABLE LEGAL EXPENSES MAY BE DETERMINED. B-168476, JUNE 12, 1970; B-165594, DECEMBER 10, 1968. MR. DALTON HAS SUBMITTED A LIST PREPARED BY HIS ATTORNEY OF LEGAL SERVICES BUT THE LIST DOES NOT SHOW A SPECIFIC DOLLAR AMOUNT ATTRIBUTED TO EACH OF THE SERVICES, THERE BEING ONLY A TOTAL CHARGE GIVEN FOR ALL OF THE SERVICES. SINCE CERTAIN OF THE SERVICES LISTED ARE NOT REIMBURSABLE AS THEY ARE PURELY OF AN ADVISORY NATURE, SUCH AS THE CONFERENCE TO DISCUSS THE METHOD BEST SUITED TO CONVEY MR. DALTON'S PROPERTY, THE AMOUNT TO BE REIMBURSED FOR THE ALLOWABLE SERVICES CANNOT BE DETERMINED AND THUS NO REIMBURSEMENT MAY BE MADE.

FURTHERMORE, SECTION 4.2E OF OMB CIRCULAR NO. A-56 STATES:

"E. LOSSES DUE TO PRICES OR MARKET CONDITIONS AT THE OLD AND NEW POSTS OF DUTY. LOSSES DUE TO FAILURE TO SELL A RESIDENCE AT THE OLD OFFICIAL AT THE PRICE ASKED, OR AT ITS CURRENT APPRAISED VALUE, OR AT ITS ORIGINAL COST, OR DUE TO FAILURE TO BUY A DWELLING AT THE NEW OFFICIAL STATION AT A PRICE COMPARABLE TO THE SELLING PRICE OF THE RESIDENCE AT THE OLD OFFICIAL STATION, AND ANY SIMILAR LOSSES, ARE NOT REIMBURSABLE."

MR. DALTON ADMITS THAT BECAUSE OF THE POOR MARKET CONDITIONS AT THE TIME THAT IT WAS DIFFICULT TO SELL HIS HOUSE AND THE FOUR ACRES OF LAND TO ONE BUYER AND SO HE DECIDED TO SELL THE LAND IN TWO PARCELS. HE ASSERTS THAT SINCE HE CONTRACTED TO SELL THE LAND IN TWO PARCELS PRIOR TO THE VACATION ACTION AND SINCE SUBSEQUENT TO THE VACATION HE RECEIVED NO MORE FOR THE PROPERTY THAN THAT FOR WHICH HE HAD PREVIOUSLY CONTRACTED, IT MAY NOT BE FOUND THAT THE VACATION EXPENSE WAS INCURRED SO THAT HE COULD OBTAIN A BETTER PRICE.

SECTION 4.2E AND SECTION 4.2C CITED ABOVE PROVIDE, RESPECTIVELY, THAT LOSSES ON THE SALE OR PURCHASE OF A HOUSE ARE NOT REIMBURSABLE AND THAT ONLY EXPENSES INCURRED WHICH ARE CUSTOMARILY PAID BY THE SELLER OR BUYER ARE REIMBURSABLE. SINCE IT IS CUSTOMARY TO SELL A RESIDENCE AND ITS LAND IN ONE ACTION, EXTRA EXPENSES INCURRED BY MAKING MULTIPLE SALES OF ONE'S RESIDENCE AND LAND, WHICH AMOUNT TO MORE THAN THAT WHICH WOULD HAVE BEEN INCURRED HAD THE PROPERTY BEEN SOLD IN ONE SALE, ARE NONREIMBURSABLE. THE VACATION ACTION IN QUESTION WAS LEGALLY REQUIRED ONLY BECAUSE MR. DALTON CHOSE TO SELL HIS RESIDENCE AND PROPERTY IN TWO SEPARATE TRANSACTIONS. VIEW OF THIS AND SINCE THE RECORD INDICATES THE METHOD CHOSEN TO SELL THE PROPERTY WAS TO PREVENT A GREATER REDUCTION IN THE SALE PRICE, THE $500 ATTORNEY'S FEE IS AN EXTRAORDINARY EXPENSE WHICH IS NONREIMBURSABLE UNDER SECTIONS 4.2C AND 4.2E, SUPRA. B-175939, JUNE 19, 1972; B-179482, MARCH 21, 1974.

IT IS UNFORTUNATE THAT THE AIR FORCE PERSONNEL MAY HAVE MISLED MR. DALTON INTO THINKING THE VACATION EXPENSE WOULD BE REIMBURSABLE. HOWEVER, WE NOTE THAT THIS ADVICE WAS OBTAINED AFTER MR. DALTON HAD CONTRACTED TO SELL HIS RESIDENCE AND AFTER HE HAD LEARNED THAT A VACATION ACTION WAS NECESSARY. IN ANY CASE, THE OFFICERS WHOSE ADVICE MR. DALTON SOUGHT WERE WITHOUT AUTHORITY TO WAIVE THE REQUIREMENT OF THE REGULATIONS. IN THIS CONNECTION WE HAVE CONSISTENTLY HELD THAT WHERE A GOVERNMENT AGENT ACTS BEYOND THE SCOPE OF HIS AUTHORITY THE GOVERNMENT CAN BE NEITHER BOUND NOR ESTOPPED BY HIS UNAUTHORIZED ACTS. 44 COMP. GEN. 337, 339 (1964). ACCORDINGLY, THE DISALLOWANCE OF MR. DALTON'S CLAIM IS SUSTAINED.

DECISIONS OF THE COMPTROLLER GENERAL ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, SUCH DECISIONS DO NOT PRECLUDE A CLAIMANT FROM PROSECUTING HIS CLAIM IN A COURT. FOR MATTERS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS AND THE COURT OF CLAIMS, SEE 28 U.S.C. 1346 AND 1491.