B-163203, MAR. 1, 1968

B-163203, MAR. 1, 1968

EMPLOYEES - TRANSFERS - PUBLIC LAW 89-516 - ATTORNEY FEE DECISION TO WEATHER BUREAU EMPLOYEE DISALLOWING CLAIM FOR ATTORNEY FEE PAID BY TRANSFERRED EMPLOYEE INCIDENT TO PURCHASE OF HOME AT NEW STATION. EMPLOYEE WHO PAID ATTORNEY FOR EXAMINATION OF CONTRACT, CORRESPONDENCE REGARDING MORTGAGE COMMITMENT, AFFIDAVITS, CLOSING TITLE AND ADJUSTING TAXES INCIDENT TO PURCHASE OF HOME AT NEW OFFICIAL STATION MUST HAVE SUCH ATTORNEY'S SERVICES REGARDED AS ADVISORY IN NATURE CONCERNING DOCUMENTS RATHER THAN AS SERVICES IN SEARCHING TITLE AND PREPARING CONVEYANCE INSTRUMENTS WHICH WOULD BE ALLOWABLE UNDER 4.2C OF BOB CIR. A-56. THEREFORE, EMPLOYEE MAY NOT BE REIMBURSED FOR ATTORNEY FEE.

TO MR. CHARLES G. KNUDSEN:

THIS REFERS TO YOUR INQUIRY DATED FEBRUARY 6, 1968, A COPY OF WHICH THE CHIEF, VOUCHER EXAMINING SECTION, FORWARDED TO US ON FEBRUARY 12, 1968, REFERENCE AD 571X12, CONCERNING THE UNSETTLED PORTION OF YOUR RECLAIM ON SUPPLEMENTAL TRAVEL VOUCHER NO. DS-68-11, AS AN EMPLOYEE OF THE WEATHER BUREAU, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION.

THE UNSETTLED PORTION OF YOUR CLAIM IS THE $450 ATTORNEY FEE WHICH IS STATED TO BE ONE PERCENT OF THE SALES PRICE OF THE HOUSE PURCHASED BY YOU, AND THAT ONE PERCENT IS THE MINIMUM FEE IN ACCORDANCE WITH A SCHEDULE OF THE BAR ASSOCIATION OF NASSAU COUNTY, NEW YORK, RELATIVE TO CLOSING OF TITLE. THE $450 IS SAID TO COVER THE SERVICES RENDERED BY YOUR ATTORNEY WHICH HE DESCRIBES AS EXAMINATION OF CONTRACT OF SALE AND HAVING SAME EXECUTED BY ALL PARTIES; ORDERING EXAMINATION OF TITLE FOR MORTGAGE INSURANCE POLICY AND FEE POLICY INSURING PURCHASERS; CORRESPONDENCE REGARDING MORTGAGE COMMITMENT; ORDERING NEW SURVEY OF PREMISES; RECEIVING REPORT OF TITLE AND EXAMINATION OF SAME; FORWARDING EXCEPTION SHEET, CERTIFIED DESCRIPTION AND LINEN SURVEY; PREPARING AN AFFIDAVIT; CLOSING OF TITLE AND ADJUSTING TAXES, INSURANCE, FUEL OIL, ETC.; AND ALL INCIDENTAL MATTERS IN CONNECTION THEREWITH.

THE PURPOSES FOR WHICH LEGAL FEES ARE ALLOWABLE ARE GOVERNED BY SECTION 4.2C OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-56 REVISED, WHICH READS 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, CUSTOMARY COSTS OF SEARCHING TITLE, PREPARING CONVEYANCES AND OTHER INSTRUMENTS, AND PREPARING CONTRACTS, RELATED NOTARY FEES, RECORDING FEES, MAKING SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR LEGAL OR FINANCING PURPOSES, AND SIMILAR EXPENSES, MAY BE REIMBURSED EITHER WITH RESPECT TO SALE OF THE RESIDENCEAT THE OLD OFFICIAL STATION OR PURCHASE OF A DWELLING AT THE NEW OFFICIAL STATION, BUT THE SAME TYPES OF COSTS SHALL NOT BE PAID AT BOTH LOCATIONS. COSTS OF LITIGATION ARE NOT REIMBURSABLE.'

NEITHER OF YOUR ATTORNEY'S STATEMENTS GIVES A BREAKDOWN OF THE $450 WITH REGARD TO ALLOCATION OF HIS ABOVE-DESCRIBED SERVICES. HOWEVER WE POINT OUT THAT SUCH LEGAL SERVICES APPEAR TO HAVE BEEN MERELY ADVISORY IN NATURE CONCERNING THE DOCUMENTS MENTIONED, AS DISTINGUISHED FROM COSTS OF PREPARING CONTRACTS AND OBTAINING SIGNATURES THERETO, COSTS OF SEARCHING TITLE AND MAKING REPORT THEREOF, AS WELL AS COSTS OF PREPARING CONVEYANCES AND OTHER INSTRUMENTS FOR EXECUTION INCIDENT TO CLOSING OF A PURCHASE OR SALE.

WE HAVE HELD THAT THE FEE WHICH AN EMPLOYEE PAYS TO RETAIN AN ATTORNEY TO REPRESENT AND COUNSEL HIM IN CONNECTION WITH HIS SALE OR PURCHASE OF A RESIDENCE PROPERLY MAY NOT BE REIMBURSED UNDER THE LAW, 5 U.S.C. 5724A (A) (4), AND SECTION 4 OF THE ABOVE REGULATIONS. SEE THE ENCLOSED COPIES OF DECISIONS B-161891 DATED AUGUST 21, 1967, AND B 162858 DATED DECEMBER 5, 1967.

THEREFORE, UPON THE PRESENT RECORD WE WOULD NOT BE WARRANTED IN HOLDING THAT ANY PART OF THE $450 ATTORNEY FEE CLAIMED BY YOU IS FOR ALLOWANCE WITHIN THE PURVIEW OF SECTION 4.2C OF BUREAU OF THE BUDGET CIRCULAR NO. A- 56 REVISED.