B-167855, OCT. 1, 1969

B-167855, OCT. 1, 1969

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--"SETTLEMENT DATE" LIMITATION ON PROPERTY TRANSACTIONS EMPLOYEE, TRANSFERRED EFFECTIVE JUNE 6, 1967 (DATE REPORTED FOR DUTY) WHO ADVISED THAT DATE OF CLOSING OR SETTLEMENT FOR SALE OF OLD RESIDENCE WAS JULY 31, 1968, MORE THAN YEAR AFTER REPORTING DATE, MAY NOT BE REIMBURSED EXPENSES ON BASIS OF DISCREPANCY BETWEEN 1-YEAR LIMITATION ON INCURRING REIMBURSABLE REAL ESTATE TRANSACTION EXPENSES (SUBSEC. 4.1D, BUREAU OF BUDGET CIR. NO. A-56) AND COMPREHENSIVE 2 YEAR TIME LIMITATION FOR ACCOMPLISHMENT OF ALL TRAVEL AND TRANSFER ACTIVITY (SUBSEC. 1.3D, A-56) SINCE PUB. L. 89-516 PROVIDED FOR IMPLEMENTING REGULATIONS, BUREAU OF BUDGET ACTED WITHIN AUTHORITY IN ESTABLISHING TIME LIMITS AND GAO CANNOT ALTER REGULATIONS; MOREOVER, JUNE 26, 1969 REVISION OF CIRCULAR NO. A-56 IS NOT RETROACTIVE AND UNITED STATES IS NOT BOUND BY UNAUTHORIZED ACTS OF ITS EMPLOYEES- GIVING WRONG INFORMATION.

TO MR. JESSE P. DOMINGUEZ:

THIS REFERS TO YOUR RECENT LETTER, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE OF MAY 29, 1969, DISALLOWING YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF YOUR RESIDENCE AT YOUR OLD OFFICIAL DUTY STATION INCIDENT TO YOUR TRANSFER FROM SAN ANTONIO, TEXAS, TO DALLAS, TEXAS.

THE RECORD DISCLOSES THAT YOUR TRANSFER FROM KELLY AIR FORCE BASE AT SAN ANTONIO TO THE DEFENSE CONTRACTS ADMINISTRATION SERVICES REGION AT DALLAS, WAS EFFECTIVE ON JUNE 6, 1967, THE DATE YOU REPORTED FOR DUTY AT DALLAS. YOUR TRAVEL VOUCHER, DATED AUGUST 27, 1968, ON WHICH YOU ORIGINALLY CLAIMED REIMBURSEMENT OF $775 FOR EXPENSES OF THE SALE OF THE RESIDENCE AT SAN ANTONIO STATES THAT THE DATE OF CLOSING OR SETTLEMENT FOR THE SALE OF THE PROPERTY AT SAN ANTONIO WAS JULY 31, 1968, MORE THAN A YEAR AFTER YOU REPORTED FOR DUTY AT YOUR NEW STATION.

THE STATUTORY REGULATION ESTABLISHING TIME LIMITS TO BE APPLIED IN DETERMINING ELIGIBILITY FOR REIMBURSEMENT OF EXPENSES OF THE SALE AND PURCHASE OF REAL ESTATE INCIDENT TO YOUR TRANSFER IS SUBSECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, AS REVISED OCTOBER 12, 1966, ISSUED TO IMPLEMENT (UNDER PROPER DELEGATION OF PRESIDENTIAL AUTHORITY) THE PROVISIONS OF PUBLIC LAW 89-516, NOW 5 U.S.C. 5724A. SUBSECTION 4.1D PROVIDES AS FOLLOWS:

"D. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT 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.'

THE ONLY CIRCUMSTANCES UNDER WHICH THE ABOVE-QUOTED REGULATION PERMITS AN EXTENSION OF TIME BEYOND ONE YEAR AFTER TRANSFER FOR COMPLETION OF REAL ESTATE TRANSACTIONS TO ESTABLISH ELIGIBILITY FOR REIMBURSEMENT OF EXPENSES IS THE OCCURRENCE OF LITIGATION CAUSING DELAY IN SETTLEMENT. WE FIND NOTHING IN YOUR CASE TO INDICATE THAT LITIGATION WAS A DELAYING FACTOR IN THE FAILURE TO SELL YOUR HOUSE AT SAN ANTONIO PRIOR TO THE ANNIVERSARY DATE OF YOUR TRANSFER TO DALLAS.

IN NUMEROUS CASES, COPIES OF REPRESENTATIVE DECISIONS ENCLOSED, THIS OFFICE HAS RULED THAT THE PROVISIONS OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 ARE STATUTORY IN NATURE AND THIS OFFICE IS WITHOUT AUTHORITY TO WAIVE OR EXTEND THEM. THUS, WE ARE UNABLE TO FIND ANY BASIS FOR HOLDING THAT THE TIME LIMIT FOR THE SALE OF YOUR RESIDENCE AT THE OLD DUTY STATION SHOULD HAVE BEEN EXTENDED IN YOUR CASE.

YOU SUGGEST AS A REASON FOR ALLOWING YOUR CLAIM THAT A DISCREPANCY EXISTS BETWEEN THE ONE-YEAR LIMITATION ON INCURRING REIMBURSABLE REAL ESTATE TRANSACTION EXPENSES AND THE COMPREHENSIVE TIME LIMITATION (ALSO ESTABLISHED BY REGULATION) OF TWO YEARS FOR ACCOMPLISHMENT OF ALL TRAVEL AND TRANSFER ACTIVITY PROVIDED IN SUBSECTION 1.3D OF CIRCULAR NO. A-56. WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 89 516 TO INDICATE CONGRESS HAD ANY SPECIFIC INTENT WITH RESPECT TO TIME LIMITATIONS WHICH MIGHT BE ESTABLISHED BY THE IMPLEMENTING REGULATIONS. THE LAW PROVIDED THAT IT WOULD BE ADMINISTERED "UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE". OUR OPINION IS THE BUREAU OF THE BUDGET ACTED WITHIN THE SCOPE OF ITS AUTHORITY IN ESTABLISHING THE TIME LIMITS IN SUBSECTIONS 1.3D AND 4.1D AND, AS STATED ABOVE, THIS OFFICE IS WITHOUT AUTHORITY TO ALTER TERMS OF THE GOVERNING REGULATIONS.

YOU ALSO SUGGEST YOU ARE ENTITLED TO REIMBURSEMENT FOR THE EXPENSES CLAIMED BECAUSE YOU WERE GIVEN ERRONEOUS INFORMATION CONCERNING THE TIME LIMITS APPLICABLE TO THE SALE OF YOUR PROPERTY AT THE TIME OF YOUR TRANSFER IN JUNE 1967. IN THIS CONNECTION, WE WOULD POINT OUT THAT CIRCULAR NO. A-56 STATING THE TIME LIMITATION ON REAL ESTATE TRANSACTIONS WAS ISSUED TO HEADS OF ALL DEPARTMENTS AND AGENCIES OCTOBER 12, 1966, WELL IN ADVANCE OF YOUR TRANSFER. IT IS WELL SETTLED THAT THE UNITED STATES IS NOT BOUND BY UNAUTHORIZED ACTS OF ITS OFFICERS AND EMPLOYEES. WILBER NATIONAL BANK V UNITED STATES, 294 U.S. 120.

IT IS CORRECT THAT ON JUNE 26, 1969, A REVISION OF CIRCULAR NO. A-56 WAS ISSUED AND THAT IT LIBERALIZES CONDITIONS FOR EXTENSION OF THE TIME LIMITS ALLOWABLE FOR REIMBURSEMENT OF COSTS OF REAL ESTATE TRANSACTIONS INCIDENT TO TRANSFER. UNFORTUNATELY THIS REVISION WOULD NOT BE APPLICABLE TO YOUR CASE SINCE ITS EFFECTIVE DATE WAS THE DATE OF ISSUANCE.

IN ACCORDANCE WITH THE FOREGOING, THE ACTION TAKEN IN OUR SETTLEMENT OF MAY 29, 1969, IS SUSTAINED.