B-181955, DEC 13, 1974

B-181955: Dec 13, 1974

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IT APPEARS THAT THE ORIGINAL REQUEST WAS LOST WITHIN THE AGENCY. HAVE REVIEWED THE FILE COPIES OF THE MATERIAL SUBMITTED. WAS SOLD IN 1973 WITH SETTLEMENT ON SEPTEMBER 11. A STATE CONDEMNATION SUIT WAS PENDING FOR THE PURPOSE OF ACQUIRING 5 FEET OF LAND AT THE FRONT OF MR. THE CONDEMNATION PROCEEDINGS WERE SETTLED BY COURT ORDER ON JUNE 23. OWEN FEELS THAT THE SALE WAS DELAYED BY LITIGATION. IN WHICH SETTLEMENT MUST OCCUR FOR THE SALE OF A RESIDENCE FOR WHICH REIMBURSEMENT IS REQUESTED. A-56 PRESCRIBED THAT: "*** AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION.". PROVIDED THAT SUCH EXTENSION PERIOD WAS LIMITED TO 1 YEAR FOR ALL PURPOSES.

B-181955, DEC 13, 1974

REIMBURSEMENT OF REAL ESTATE EXPENSES INCIDENT TO A CHANGE OF DUTY STATION MAY NOT BE MADE AFTER LAPSE OF OVER 5 YEARS BETWEEN REPORTING FOR DUTY AT NEW STATION IN JULY 1968 AND SETTLEMENT ON SALE OF RESIDENCE AT OLD DUTY STATION IN SEPTEMBER 1973, NOTWITHSTANDING CLAIM THAT CONDEMNATION PROCEEDINGS FOR 5 FEET OF PROPERTY FOR ROAD USE DELAYED SETTLEMENT UNTIL SEPTEMBER 1971, IN VIEW OF REGULATORY LIMITATION.

RELOCATION BENEFITS - REAL ESTATE EXPENSES - TIME LIMITATION OF SETTLEMENT: A DISBURSING OFFICER OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, THROUGH CHANNELS SUBMITTED A REQUEST FOR AN ADVANDE DECISION AS TO THE PROPRIETY OF PAYING A CLAIM IN THE AMOUNT OF $1,539.20 REPRESENTING REAL ESTATE EXPENSES CLAIMED BY MR. JAMES R. OWEN INCIDENT TO A CHANGE OF OFFICIAL DUTY STATION DURING 1968. IT APPEARS THAT THE ORIGINAL REQUEST WAS LOST WITHIN THE AGENCY, AND WE, THEREFORE, HAVE REVIEWED THE FILE COPIES OF THE MATERIAL SUBMITTED.

THE PERTINENT FACTS STATED BY THE AGENCY SHOW THAT MR. OWEN REPORTED TO HIS NEW DUTY STATION IN ATLANTA, GEORGIA, ON JULY 8, 1968. HER RETIRED FROM THE FEDERAL SERVICE ON JUNE 30, 1973, WHILE STATIONED IN ATLANTA. HIS RESIDENCE AT HIS OLD DUTY STATION IN HUNTINGTON, WEST VIRGINIA, WAS SOLD IN 1973 WITH SETTLEMENT ON SEPTEMBER 11, 1973. AT THE TIME OF HIS TRANSFER, A STATE CONDEMNATION SUIT WAS PENDING FOR THE PURPOSE OF ACQUIRING 5 FEET OF LAND AT THE FRONT OF MR. OWEN'S RESIDENCE FOR STATE ROAD USE. THE CONDEMNATION PROCEEDINGS WERE SETTLED BY COURT ORDER ON JUNE 23, 1971, WITH STATE APPEAL RIGHTS EXTENDING UNTIL APPROXIMATELY SEPTEMBER 23, 1971. THE PROPERTY HAD BEEN RENTED DURING THE INTERIM AFTER UNSUCCESSFUL ATTEMPTS TO SELL AND, UPON THE CONCLUSION OF THE RENTAL PERIOD, THE PROPERTY NEEDED CONSIDERABLE REPAIR TO PLACE IT IN MARKETABLE CONDITION. MR. OWEN FEELS THAT THE SALE WAS DELAYED BY LITIGATION, AND SETTLEMENT OCCURED TIMELY THEREAFTER.

THE CURRENT TRAVEL REGULATIONS, SECTION 2-6.LE, FPMR 101-7 MAY 1, 1973, PROVIDE A TIME LIMITATION OF 1 YEAR FROM THE DATE OF REPORTING TO A NEW STATION, WHICH MAY BE EXTENDED FOR AN ADDITIONAL 1 YEAR, IN WHICH SETTLEMENT MUST OCCUR FOR THE SALE OF A RESIDENCE FOR WHICH REIMBURSEMENT IS REQUESTED. THE DISBURSING OFFICER POINTS OUT THAT THE REGULATIONS AS INITIALLY WRITTEN AND PUBLISHED IN OFFICE OF MANAGEMENT AND BUDGET CIRCULAR (OMB) NO. A-56 PRESCRIBED THAT:

"*** AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION."

FPMR, TEMPORARY REGULATIONS A-8, SUPPLEMENT 3, DATED OCTOBER 26, 1972, AMENDED, EFFECTIVE OCTOBER 28, 1972, SECTION 4-LE OF OMB CIRCULAR NO. A- 56, PROVIDED THAT SUCH EXTENSION PERIOD WAS LIMITED TO 1 YEAR FOR ALL PURPOSES. THE DISBURSING OFFICER CONCLUDES THAT EVEN THOUGH THE 1 YEAR TIME LIMITATION ON ALL EXTENSIONS WAS NOT IN EFFECT AT THE TIME OF THE TRANSFER, MR. OWEN'S CLAIM CANNOT BE ALLOWED UNDER SUCH CRITERIA SINCE TIME IN EXCESS OF 5 YEARS ELAPSED BETWEEN THE REPORTING DATE AND SETTLEMENT (WHICH HE APPARENTLY DOES NOT REGARD AS "AN APPROPRIATE EXTENSION") AND TIME IN EXCESS OF 2 YEARS ELAPSED BETWEEN TERMINATION OF STATED LITIGATION AND SETTLEMENT.

AN ADMINISTRATIVE DETERMINATION THAT A 5-YEAR DELAY BETWEEN TRANSFER AND SETTLEMENT, EVEN IF THE DELAY WERE WHOLLY ATTRIBUTABLE TO THE LITIGATION, IS NOT "APPROPRIATE" WITHIN THE MEANING OF THE REGULATION APPLICABLE AT THE TIME, IS A PROPER EXERCISE OF AGENCY DISCRETION. MOREOVER, SINCE THE PROPERTY COULD HAVE BEEN SOLD NOTWITHSTANDING THE CONDEMNATION PROCEEDINGS - MR. OWEN IN FACT MADE SUCH AN ATTEMPT - IT IS DOUBTFUL WHETHER THE SETTLEMENT WAS NECESSARILY DELAYED BECAUSE OF LITIGATION AS CONTEMPLATED IN THE REGULATION. IN ANY EVENT, ANY DELAY THAT COULD BE ATTRIBUTABLE TO THE CONDEMNATION PROCEEDINGS TERMINATED OVER 2 YEARS PRIOR TO SETTLEMENT. THERE IS NO OTHER AUTHORITY PERMITTING A 5-YEAR EXPANSION IN THE ABSENCE OF LITIGATION, APPLICABLE TO THE FACTS BEFORE US. THEREFORE, ON THE BASIS OF THE RECORD AND FOR THE REASONS STATED, SUPRA, WE CAN ONLY CONCUR IN THE DISBURSING OFFICER'S DETERMINATION THAT PAYMENT MAY NOT BE ALLOWED.

ACCORDINGLY, PAYMENT OF THE CLAIM MAY NOT BE MADE.