B-167898, OCT. 6, 1969

B-167898, OCT. 6, 1969

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--"SETTLEMENT DATE" LIMITATION ON PROPERTY TRANSACTIONS EMPLOYEE TRANSFERRED ON OCT. 2, 1967, WHO WAS UNABLE TO SELL RESIDENCE AT OLD STATION UNTIL FEB. 10, 1969, PRIMARILY BECAUSE OF LOCAL ZONING CONTROVERSY, MAY NOT BE ALLOWED CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCIDENT THERETO SINCE DELAY IN SELLING PROPERTY DID NOT INVOLVE LITIGATION -- THE SOLE EXCEPTION TO 1-YEAR LIMIT ESTABLISHED BY SEC. 4 OF BUREAU OF BUDGET CIR. NO. A-56. EVEN HAD EXPANDED PROVISIONS OF JUNE 26, 1969 AMENDMENT OF SAID SECTION BEEN IN EFFECT WHEN EMPLOYEE SOLD HIS RESIDENCE, THEY WOULD NOT HAVE PERMITTED REIMBURSEMENT OF SUBJECT CLAIM SINCE EMPLOYEE WAS UNABLE TO OBTAIN SALES CONTRACT DURING INITIAL 1-YEAR PERIOD.

TO MAJOR R. N. CROSSLEY, FC, USA:

YOUR MEMORANDUM OF AUGUST 14, 1969, FORWARDED HERE ON SEPTEMBER 12, 1969, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTS A DECISION ON THE ALLOWABILITY OF $530.25 FOR REIMBURSEMENT OF REAL ESTATE EXPENSES TO MR. BENJAMIN M. MINDEN, INCIDENT TO HIS PERMANENT CHANGE OF STATION FROM DALLAS TO ODESSA, TEXAS, AS AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY.

ACCORDING TO THE RECORD MR. MINDEN REPORTED TO HIS NEW DUTY STATION ON OCTOBER 2, 1967. HE WAS UNABLE UNTIL FEBRUARY 10, 1969, TO SELL HIS RESIDENCE AT HIS OLD DUTY STATION IN DALLAS PRIMARILY BECAUSE OF A LOCAL ZONING CONTROVERSY THERE. MR. MINDEN'S RESIDENCE IS DESCRIBED AS A "DUPLEX" AND THE ZONING CONTROVERSY INVOLVED WHETHER HIS SECTION OF THE CITY WOULD BE ZONED FOR SINGLE FAMILY RESIDENTIAL OR FOR MULTI FAMILY USE. MR. MINDEN'S ATTEMPT TO FILE A SUIT TO CLARIFY THE ZONING SITUATION WAS NOT ACCEPTED IN COURT. MR. MINDEN'S REQUEST FOR AN EXTENSION OF THE ONE-YEAR TIME LIMIT ESTABLISHED BY SECTION 4 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 WAS NOT GRANTED. HIS CLAIM FOR REIMBURSEMENT OF THE EXPENSES OF THE SALE OF THE RESIDENCE ON FEBRUARY 10, 1969, AFTER THE ZONING PROBLEMS HAD BEEN RESOLVED, HAS BEEN ADMINISTRATIVELY DISALLOWED AS NOT WITHIN THE LITIGATION EXCEPTION PROVIDED IN SECTION 4 OF CIRCULAR NO. A-56. MR. MINDEN IN HIS APPEAL OF THE DISALLOWANCE FEELS THAT TOO NARROW A MEANING HAS BEEN PLACED ON THE TERM "LITIGATION"; HOWEVER, HE RECOGNIZES THAT THE ZONING CONTROVERSY WAS NOT IN ITS ESSENCE LITIGATION. HE ASKS THAT WE GO BEYOND THE CURRENT INTERPRETATION OF THE TERM AND "INCORPORATE THE ACTUAL SPIRIT INTENDED BY A FAIR INTERPRETATION OF THE REGULATORY STANDARDS.'

THE REGULATION IN SECTION 4 OF BUREAU OF THE BUDGET CIRCULAR NO. A 56 WAS ISSUED PURSUANT TO PUBLIC LAW 89-516, 80 STAT. 323, NOW 5 U.S.C. 5724A (4) AND, ACCORDINGLY, HAS THE FORCE AND EFFECT OF LAW. NEITHER OUR OFFICE NOR ANY AGENCY IN THE EXECUTIVE BRANCH HAS THE AUTHORITY TO WAIVE OR EXTEND THE PRESCRIBED PERIOD OTHER THAN AS PROVIDED.

ON JUNE 26, 1969, THE BUREAU OF THE BUDGET AMENDED SECTION 4 OF CIRCULAR NO. A-56 TO PROVIDE THAT:

"* * * AN ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF ONE YEAR 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. * * *"

THE ABOVE CHANGE, EVEN IF IT HAD BEEN APPLICABLE WHEN MR. MINDEN SOLD HIS RESIDENCE, WOULD NOT HAVE PERMITTED REIMBURSEMENT OF HIS CLAIM AS HE WAS UNABLE TO OBTAIN A SALES CONTRACT DURING THE INITIAL ONE-YEAR PERIOD.

AS THE DELAY IN SELLING MR. MINDEN'S PROPERTY DID NOT INVOLVE LITIGATION, WHICH IS THE SOLE EXCEPTION TO THE ONE-YEAR LIMIT, HIS CLAIM FOR REIMBURSEMENT OF THE EXPENSES OF THE SALE OF HIS RESIDENCE MAY NOT BE ALLOWED.