B-172241 L/M, JUL 20, 1971

B-172241 L/M, JUL 20, 1971

PRECIS-UNAVAILABLE

SECRETARY OF AGRICULTURE:

WE REFER FURTHER TO LETTER DATED MARCH 16, 1971, FROM MR. FRANK B. ELLIOTT, ACTING ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING AN ADVANCE DECISION AS TO THE CLAIM OF MR. BENJAMIN R. BECKHAM, AN EMPLOYEE OF THE FARMERS HOME ADMINISTRATION, FOR REAL ESTATE EXPENSES IN CONNECTION WITH A CHANGE OF OFFICIAL STATION.

THE LETTER INDICATES THAT MR. BECKHAM WAS TRANSFERRED FROM HUGOTON, KANSAS, TO MANHATTAN, KANSAS, EFFECTIVE MAY 19, 1969, BUT THAT HIS HOUSE AT HIS OLD OFFICIAL STATION WAS NOT SOLD UNTIL JUNE 4, 1970, OVER A YEAR AFTER HIS TRANSFER. ON MARCH 30, 1970, MR. BECKHAM ENTERED INTO AN IRREVOCABLE 120-DAY EXCLUSIVE LISTING CONTRACT FOR THE SALE OF HIS HOUSE WITH RAMEY REAL ESTATE, THE EVENTUAL PURCHASER OF THE HOUSE.

IN THIS REGARD, MR. ELLIOTT ASKS WHETHER THE EXCLUSIVE AND IRREVOCABLE LISTING CONTRACT BETWEEN MR. BECKHAM AND RAMEY REAL ESTATE, IN EFFECT AT THE TIME THE ALLOWABLE ONE-YEAR PERIOD EXPIRED, COMES WITHIN THE PURVIEW OF SECTION 4.1E(2) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56. THAT PROVISION, EFFECTIVE JUNE 26, 1969, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"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 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. ***"

WHERE AN EMPLOYEE ONLY PLACES HIS RESIDENCE ON THE MARKET OR PLACES HIS NEEDS FOR A RESIDENCE WITH A REALTOR WITHIN THE INITIAL ONE-YEAR PERIOD, WE HAVE HELD THAT THERE IS NO AUTHORITY TO GRANT AN EXTENSION OF THE PERIOD, AS HE DID NOT ENTER INTO A CONTRACT FOR THE SALE OR PURCHASE OF A RESIDENCE WITHIN SUCH PERIOD OF TIME. DECISION B-169699, MAY 19, 1970, COPY ENCLOSED.

THE TERMS OF THE LISTING OF MR. BECKHAM'S RESIDENCE WITH R. L. RAMEY, A REAL ESTATE BROKER, PROVIDED THAT THE BROKER WOULD HAVE AN EXCLUSIVE AND IRREVOCABLE RIGHT TO SELL IT FOR A PERIOD OF 120 DAYS. NOWHERE IN THIS BROKERAGE AGREEMENT IS THERE PROVISION FOR SALE TO THE BROKER HIMSELF. MUST CONCLUDE, THEREFORE, THAT THE AGREEMENT DID NOT CONTEMPLATE THE SALE OF THE RESIDENCE TO R. L. RAMEY REAL ESTATE, AND THAT IT MAY NOT BE CONSIDERED A CONTRACT FOR THE SALE OF A RESIDENCE WITHIN THE CONTEMPLATION OF SECTION 4.1E(2) OF THE REGULATIONS. IT FOLLOWS THAT NO AUTHORITY EXISTED ON THE BASIS OF THAT CONTRACT TO GRANT HIM AN EXTENSION OF TIME FOR COMPLETION OF THE SALE, SO AS TO PERMIT REIMBURSEMENT OF SALE EXPENSES.

IN HIS LETTER OF JULY 29, 1970, ADDRESSED TO OUR OFFICE (ENCLOSED WITH MR. ELLIOTT'S LETTER), MR. BECKHAM REFERS TO HIS WRITTEN REQUEST FOR AN EXTENSION OF THE PRESCRIBED ONE-YEAR PERIOD MADE ON MAY 7, 1970, TO THE STATE DIRECTOR, FARMERS HOME ADMINISTRATION, TOPEKA, KANSAS, AND THE DENIAL OF THE REQUEST BY MEMORANDUM OF THE DIRECTOR, BUSINESS SERVICES DIVISION, FARMERS HOME ADMINISTRATION, WASHINGTON, D. C., DATED JUNE 30, 1970. MR. BECKHAM IS OF THE OPINION THAT IF HE HAD RECEIVED A PROMPT DENIAL OF HIS REQUEST, HE WOULD HAVE BEEN ABLE TO CONCLUDE THE SALE OF HIS RESIDENCE WITHIN THE PRESCRIBED PERIOD, AND, THEREFORE, REIMBURSEMENT OF THE CLAIMED EXPENSES SHOULD BE ALLOWED.

IN VIEW OF THE PROVISIONS OF SECTION 4.1E(2) OF THE REGULATIONS, IT IS OUR OPINION THAT EVEN WHERE IT IS SHOWN THAT THERE IS A LACK OF TIMELY ADMINISTRATIVE ACTION, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES IN QUESTION.