B-166666, APR. 24, 1970

B-166666, APR. 24, 1970

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--"SETTLEMENT DATE" LIMITATION ON PROPERTY TRANSACTIONS--EXTENSION CLAIM FOR EXPENSES OF RESIDENCE SALE ON APR. 9, 1968, WHICH WAS NOT EFFECTED WITHIN 1 YEAR FROM DATE OF EMPLOYEE'S TRANSFER AS REQUIRED BY BOB CIR. NO. A-56, SEC. 4.1D, THEN IN EFFECT, AND WHERE NO LITIGATION WAS INVOLVED TO INVOKE LITIGATION EXCEPTION, IS DENIED SINCE STATUTORY REGULATIONS MAY NOT BE WAIVED IN INDIVIDUAL CASES AND JUNE 26, 1969 REVISION OF SAID REGULATION, WHICH AUTHORIZED EXTENSION FOR REASONS OTHER THAN LITIGATION UNDER SPECIAL CONDITIONS, IS NOT HERE APPLICABLE, IT BEING WELL ESTABLISHED THAT NO AMENDMENT OR MODIFICATION OF STATUTORY REGULATIONS CAN OPERATE RETROACTIVELY. SEE COMP. GEN. DECS. CITED.

TO MR. HENRY P. SEUFERT:

THIS IS IN REPLY TO YOUR LETTER DATED APRIL 3, 1970, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF OFFICE SETTLEMENT OF FEBRUARY 13, 1969, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INVOLVED IN CONNECTION WITH THE SALE OF YOUR RESIDENCE AT YOUR OLD OFFICIAL DUTY STATION. THE SETTLEMENT WAS SUSTAINED UPON RECONSIDERATION BY DECISION OF OUR OFFICE DATED MAY 9, 1969.

YOU AGAIN REQUEST RECONSIDERATION ON THE BASIS OF AMENDED REGULATIONS, WHICH YOU BELIEVE SHOULD BE GIVEN RETROACTIVE EFFECT.

A PERIOD OF MORE THAN ONE YEAR HAD ELAPSED FROM THE TIME OF YOUR TRANSFER, AUGUST 25, 1966, TO THE DATE OF THE SALE OF YOUR HOUSE, APRIL 9, 1968, AND THE DELAY WAS NOT CAUSED BY LITIGATION. SECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, THEN IN EFFECT, LIMITED REIMBURSEMENT OF EXPENSES TO CASES WHERE SETTLEMENT WAS EFFECTED WITHIN ONE YEAR OF AN EMPLOYEE'S TRANSFER, WITH THE SINGLE EXCEPTION THAT THE ONE-YEAR LIMITATION COULD BE EXTENDED FOR CASES INVOLVING LITIGATION. CIRCULAR NO. A-56 WAS AMENDED THROUGH REVISIONS OF SECTIONS 1 THROUGH 4, JUNE 26, 1969. SECTION 4.1E (FORMERLY 4.1D) NOW PROVIDES THE AGENCIES AUTHORITY FOR REASONS OTHER THAN LITIGATION, TO EXTEND THE ONE YEAR SETTLEMENT DATE LIMITATION, UNDER SPECIFIED CONDITIONS.

IT IS YOUR CONTENTION THAT INASMUCH AS THE ORIGINAL REGULATION WAS SUPERSEDED, THAT ON AND AFTER JUNE 26, 1969, YOU ARE AUTHORIZED TO PUT IN A CLAIM PROVIDED YOU HAVE MET ALL THE REQUIREMENTS OF THE NEW REGULATIONS. THIS CONTENTION IS APPARENTLY BASED UPON YOUR VIEW, AS STATED IN YOUR LETTER, THAT "THERE IS NOTHING IN CIRCULAR NO. A-56 WHICH STATES THAT THESE NEW REGULATIONS ARE 'NOT' RETROACTIVE. * * *"

THE REGULATION IN EFFECT DURING THE PERIOD THE SALE OF RESIDENCE BENEFITS OF PUBLIC LAW 89-516, APPROVED JULY 21, 1966, 80 STAT. 823, WERE AVAILABLE TO YOU, I.E; FROM THE DATE OF YOUR TRANSFER UNTIL ONE YEAR THEREAFTER, IS A STATUTORY REGULATION AND HAS THE SAME FORCE AND EFFECT AS THE STATUTE ITSELF. AS FULLY DISCUSSED IN OUR DECISION TO YOU OF MAY 9, 1969, YOUR CLAIM DID NOT QUALIFY FOR ALLOWANCE UNDER SUCH REGULATION. WHILE AN AMENDMENT OR MODIFICATION OF STATUTORY REGULATIONS IS PERMISSIBLE PROVIDED SAID AMENDMENT OR MODIFICATION IS NOT INCONSISTENT WITH THE STATUTE, IT IS WELL ESTABLISHED THAT SUCH REGULATIONS MAY NOT BE WAIVED IN INDIVIDUAL CASES, AND THAT NO AMENDMENT OR MODIFICATION CAN OPERATE RETROACTIVELY. SEE 17 COMP. GEN. 566 (1938), AND DECISIONS CITED THEREIN. SEE ALSO 40 COMP. GEN. 242 (1960), AND 45 COMP. GEN. 451 (1966). ACCORDINGLY, THE AMENDMENT OF THE REGULATIONS ON JUNE 26, 1969, MAY NOT BE GIVEN RETROACTIVE APPLICATION TO YOUR CLAIM AND THE DISALLOWANCE IS SUSTAINED.

YOU INQUIRE AS TO ANY APPEAL RIGHTS YOU MAY HAVE. IF YOU CARE TO PURSUE THE MATTER IN THE COURTS SEE 28 U.S.C. 1346 AND 1491 PERTAINING TO MATTERS COGNIZABLE IN THE UNITED STATES COURT OF CLAIMS. CONCERNING THE TIME FOR COMMENCING ACTION AGAINST THE UNITED STATES SEE 28 U.S.C. 2401 WHICH REQUIRES WITH RESPECT TO CIVIL ACTIONS THAT A COMPLAINT BE FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION FIRST ACCRUES.