B-172189, MAY 27, 1971, 50 COMP GEN 822

B-172189, MAY 27, 1971, 50 COMP GEN 822

REAL PROPERTY - ACQUISITION - OWNERS, ETC., MOVING EXPENSES - STATUTE OF LIMITATION FOR CLAIMING THE REQUIREMENT IN PUBLIC LAW 85-433, MAY 29, 1958, THAT A CLAIM FOR THE MOVING EXPENSES INCURRED INCIDENT TO CONVEYING LANDS TO THE UNITED STATES, SUPPORTED BY AN ITEMIZED STATEMENT OF EXPENSES, LOSSES, AND DAMAGE, MUST BE "SUBMITTED TO THE SECRETARY WITHIN ONE YEAR FROM THE DATE UPON WHICH THE PREMISES INVOLVED ARE VACATED" IS UNAMBIGUOUS AND NOT SUBJECT TO CONSTRUCTION AND, THEREFORE, NEITHER EXPENSES INCURRED BEFORE THE EXPIRATION OF THE YEAR AND NOT CLAIMED, NOR ADDITIONAL EXPENSES INCURRED AFTER THE EXPIRATION OF THE STATUTORY PERIOD MAY BE REIMBURSED. HOWEVER, PERSONS DISPLACED AFTER JANUARY 2, 1971, BY THE ACQUISITION OF REAL PROPERTY BY THE UNITED STATES SHOULD BE COMPENSATED FOR MOVING AND RELATED EXPENSES UNDER PUBLIC LAW 91-646, WHICH REPLACES THE 1958 ACT AND PROVIDES FOR THE HEAD OF EACH FEDERAL AGENCY TO ESTABLISH REGULATIONS AND PROCEDURES TO IMPLEMENT THE ACT. GENERAL ACCOUNTING OFFICE - RECOMMENDATIONS - IMPLEMENTATION WHEN A DECISION OF THE COMPTROLLER GENERAL CONTAINS INSTRUCTIONS FOR CORRECTIVE ACTION IN REGARD TO DEPARTMENTAL POLICY, THE SECRETARY CONCERNED IS REQUIRED UNDER SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 84 STAT. 1140, 1171, TO SUBMIT WRITTEN STATEMENTS AS TO THE ACTION TAKEN NOT LATER THAN 60 DAYS AFTER THE DATE OF THE DECISION TO THE COMMITTEES OF GOVERNMENT OPERATIONS OF BOTH HOUSES AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH A REQUEST FOR APPROPRIATIONS MADE MORE THAN 60 DAYS AFTER THE DATE OF THE DECISION, ACTION THAT THE DEPARTMENT OF INTERIOR IS REQUIRED TO TAKE INCIDENT TO THE RECOMMENDATION THAT THE BUREAU OF SPORT FISHERIES AND WILDLIFE CORRECT ITS REALTY MANUAL TO REFLECT THE PROPER APPLICATION OF THE STATUTE OF LIMITATION IN PUBLIC LAW 85-433 REGARDING THE SUBMISSION OF EXPENSES INCURRED IN MOVING FROM LANDS ACQUIRED BY THE UNITED STATES.

TO THE SECRETARY OF THE INTERIOR, MAY 27, 1971:

BY LETTER DATED MARCH 12, 1971, YOU REQUEST OUR DECISION AS TO WHETHER THE ACT OF MAY 29, 1958, PUBLIC LAW 85-433, 43 U.S.C. 1231 1234, PERMITS "(1) THE PAYMENT OF MOVING EXPENSES FOR WHICH TIMELY APPLICATION WAS MADE BUT WHICH WERE NOT INCURRED OR CLAIMED UNTIL AFTER 1 YEAR FROM THE DATE THE OWNER VACATED LANDS THAT WERE ACQUIRED BY THE DEPARTMENT (OF THE INTERIOR), AND (2) IN THE FOREGOING CIRCUMSTANCES, PAYMENT OF MOVING EXPENSES INCURRED BUT NOT CLAIMED PRIOR TO THE EXPIRATION OF THE YEAR."

THESE QUESTIONS HAVE ARISEN FOLLOWING THE DISALLOWANCE BY CERTIFYING OFFICERS OF THE BUREAU OF SPORT FISHERIES AND WILDLIFE OF PARTS OF A MOVING EXPENSE CLAIM SUBMITTED BY A MR. WILLIAM E. ALLEN IN CONNECTION WITH THE PURCHASE BY THE BUREAU OF A TRACT OF LAND OWNED BY HIM IN UTAH FOR THE FLAMING GORGE PROJECT UNDER SECTION 8 OF THE COLORADO RIVER STORAGE PROJECT ACT, 43 U.S.C. 629G. YOU NOTE THAT SINCE THESE QUESTIONS HAVE A BEARING ON DEPARTMENTWIDE PROCEDURES, THEY ARE PRESENTED TO US UNDER 31 U.S.C. 74 FOR A DECISION TO THE HEAD OF AN AGENCY, RATHER THAN AS A DECISION TO A CERTIFYING OFFICER UNDER 31 U.S.C. 82D.

THE FACTS IN THE INSTANT CASE ARE SET OUT IN YOUR LETTER AS FOLLOWS:

*** THE LANDS WERE CONVEYED TO THE UNITED STATES ON AUGUST 28, 1964. MR. ALLEN VACATED THE PREMISES ON APRIL 1, 1965. HE SEARCHED FOR AND LOCATED REPLACEMENT PROPERTY AND EXECUTED AN AGREEMENT TO PURCHASE IT ON JULY 1, 1965; HOWEVER, THE AGREEMENT WAS CANCELLED THROUGH NO FAULT OF HIS OWN AND HE RESUMED HIS SEARCH. ON DECEMBER 15, 1965, MR. ALLEN FILED AN INITIAL CLAIM FOR MOVING EXPENSES AND GAVE NOTICE HIS MOVE WAS NOT COMPLETE. WAS NOT UNTIL NOVEMBER 5, 1966, THAT MR. ALLEN ACTUALLY PURCHASED REPLACEMENT PROPERTY. HE FILED A SUPPLEMENTAL CLAIM ON FEBRUARY 20, 1968. MR. ALLEN'S CLAIM FOR MOVING EXPENSES AMOUNTS TO $27,883.02. THIS INCLUDED $11,903.81 IN EXPENSES THAT WERE INCURRED AFTER MARCH 31, 1966, OR ONE YEAR FROM THE DATE OF VACATING THE PROPERTY, AND $3,704.28 IN ADDITIONAL EXPENSES FOR SEARCHING FOR REPLACEMENT PROPERTY AND MOVING INCURRED BUT NOT CLAIMED PRIOR TO MARCH 31, 1966. (WHILE HERE NOT PERTINENT, THERE IS AN ADDITIONAL CLAIM OF $1,526.75 FOR ATTORNEY'S FEES.)

SECTION 1 OF PUBLIC LAW 85-433, 43 U.S.C. 1231, PROVIDES, IN PERTINENT PART:

*** NO PAYMENT UNDER THIS ACT SHALL BE MADE UNLESS APPLICATION THEREFOR, SUPPORTED BY AN ITEMIZED STATEMENT OF THE EXPENSES, LOSSES, AND DAMAGES INCURRED, IS SUBMITTED TO THE SECRETARY WITHIN ONE YEAR FROM THE DATE UPON WHICH THE PREMISES INVOLVED ARE VACATED *** .

YOU STATE THAT THE CLAIMANT CONTENDS THAT HIS FILING ON DECEMBER 15, 1965, OF AN INITIAL CLAIM, ALONG WITH NOTICE THAT HIS MOVE WAS NOT COMPLETE, FULLY SATISFIED THE STATUTORY REQUIREMENT AND THAT HE WAS NOT BARRED FROM INCURRING OR CLAIMING ADDITIONAL EXPENSES AFTER MARCH 31, 1966, WHEN THE 1-YEAR PERIOD EXPIRED. HE FURTHER CONTENDS THAT HE WAS NOT INFORMED OF ANY TIME LIMIT FOR SUBMITTING ADDITIONAL CLAIMS.

IN 32 COMP. GEN. 358 (1953) WE CONSIDERED THE APPLICATION OF SECTION 501(B) OF THE ACT OF SEPTEMBER 28, 1951, 65 STAT. 363. THAT SECTION GRANTS TO THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE THE AUTHORITY TO REIMBURSE OWNERS AND TENANTS FOR THE EXPENSES, LOSSES, AND DAMAGES INCURRED IN MOVING THEMSELVES AND THEIR FAMILIES AND POSSESSIONS BECAUSE OF ACQUISITION OF THE LAND BY ONE OF THE MILITARY DEPARTMENTS. SECTION 501(B) FURTHER PROVIDES THAT "NO PAYMENT IN REIMBURSEMENT SHALL BE MADE UNLESS APPLICATION THEREFOR, SUPPORTED BY AN ITEMIZED STATEMENT OF THE EXPENSES, LOSSES, AND DAMAGES SO INCURRED, SHALL HAVE BEEN SUBMITTED TO THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED WITHIN ONE YEAR FOLLOWING THE DATE OF SUCH VACATING." IN CONSTRUING THAT PROVISION WE HELD AT PAGE 360 THAT:

*** SUCH PROVISION IS CLEAR AND UNAMBIGUOUS AND IS NOT SUBJECT TO CONSTRUCTION. FURTHERMORE, IT IS SELF-EXECUTING IN THAT THE LIMITATION PERIOD FOR FILING APPLICATIONS FOR REIMBURSEMENT IS IN NOWISE CONTINGENT UPON THE ISSUANCE OF REGULATIONS *** . SPECIFICALLY, THEREFORE, THE SECRETARY OF THE ARMY IS NOT AUTHORIZED TO REIMBURSE ANY OWNERS OR TENANTS FOR EXPENSES, LOSSES, AND DAMAGES IN MOVING FROM THE BUILDING UNDER SUCH PROVISION IF THE SAID OWNER OR TENANT FAILED TO FILE HIS CLAIM FOR SUCH EXPENSES, LOSSES, OR DAMAGES WITHIN THE PERIOD PRESCRIBED BY THE STATUTE, NAMELY, "WITHIN ONE YEAR FOLLOWING THE DATE OF SUCH VACATING."

THE ABOVE-QUOTED LANGUAGE OF SECTION 1 OF PUBLIC LAW 85-433 IS JUST AS CLEAR AND UNAMBIGUOUS AS THE ABOVE-QUOTED LANGUAGE OF SECTION 501(B) OF THE ACT OF SEPTEMBER 28, 1951, AND ALMOST IDENTICAL THEREWITH. PROHIBITS, IN EFFECT, PAYMENT TO OWNERS AND TENANTS IN REIMBURSEMENT OF THEIR EXPENSES, LOSSES, AND DAMAGES UNLESS APPLICATION THEREFOR TOGETHER WITH A SUPPORTING ITEMIZED STATEMENT SHALL HAVE BEEN SUBMITTED TO THE SECRETARY OF THE INTERIOR WITHIN 1 YEAR FROM THE DATE UPON WHICH THE PREMISES INVOLVED ARE VACATED. IN OTHER WORDS, UNLESS AN APPLICATION OR CLAIM FOR PAYMENT OF A SUM CERTAIN, TOGETHER WITH AN ITEMIZED STATEMENT (OF THE EXPENSES, LOSSES, AND DAMAGES INCURRED) SUPPORTING THE AMOUNT CLAIMED, IS SUBMITTED TO THE SECRETARY WITHIN 1 YEAR FROM THE DATE THE PREMISES INVOLVED ARE VACATED, PAYMENT ON SUCH APPLICATION OR CLAIM WOULD NOT BE AUTHORIZED. THEREFORE, SINCE THE STATUTE REQUIRES THAT THE APPLICATION AND SUPPORTING DOCUMENTS MUST BE SUBMITTED WITHIN 1 YEAR FROM THE DATE OF VACATING, IT IS CLEAR THAT NEITHER THOSE EXPENSES, LOSSES, AND DAMAGES WHICH ARE INCURRED BUT NOT CLAIMED PRIOR TO THE EXPIRATION OF THE YEAR, NOR THOSE EXPENSES, LOSSES, AND DAMAGES WHICH ARE INCURRED AFTER THE EXPIRATION OF THAT YEAR MAY BE REIMBURSED.

IN SUMMARY, IT IS OUR VIEW THAT SECTION 1 OF PUBLIC LAW 85-433, 43 U.S.C. 1231, CLEARLY AND UNAMBIGUOUSLY PROHIBITS THE PAYMENT OF CLAIMS BY LANDOWNERS AND TENANTS FOR MOVING EXPENSES AND RELATED LOSSES AND DAMAGES BY REASON OF THE ACQUISITION OF LAND BY THE DEPARTMENT OF THE INTERIOR FOR PUBLIC-WORKS PROJECTS, UNLESS THE EXPENSES, LOSSES, AND DAMAGES ARE INCURRED, AND THE APPLICATION FOR REIMBURSEMENT TOGETHER WITH A SUPPORTING ITEMIZED STATEMENT IS SUBMITTED TO THE SECRETARY OF THE INTERIOR WITHIN 1 YEAR FROM THE DATE ON WHICH THE PREMISES INVOLVED ARE VACATED. ACCORDINGLY, THE ANSWER TO BOTH OF YOUR QUESTIONS IS IN THE NEGATIVE.

IN YOUR LETTER YOU STATE THAT THE PRESENT POLICY OF THE BUREAU OF SPORT FISHERIES AND WILDLIFE IS REFLECTED IN SECTION 771.8(9) OF ITS REALTY MANUAL WHICH PROVIDES IN PERTINENT PART THAT " *** . CARE SHOULD BE EXERCISED NOT TO DENY A CLAIM ON THE BASIS OF TIME LIMITATION FROM THE DATE OF VACATING WHERE IT CAN BE REASONABLY SHOWN THAT THE CLAIMANT MADE AN EFFORT TO COMPLY *** ." THE TYPE OF SITUATION TO WHICH THIS POLICY IS MEANT TO APPLY IS NOT ENTIRELY CLEAR TO US. IF, HOWEVER, IT IS APPLIED TO CASES, SUCH AS THAT OF MR. ALLEN, WHEREIN THE PERSON DISPLACED BY THE GOVERNMENT DOES NOT, FOR ONE REASON OR ANOTHER WHETHER OR NOT SUCH REASON IS BEYOND HIS CONTROL - COMPLETE HIS MOVE AND SUBMIT HIS APPLICATION WITHIN 1 YEAR FROM THE VACATING OF HIS PREMISES, THEN IT IS IN CONFLICT WITH THE CLEAR AND UNAMBIGUOUS STATUTORY REQUIREMENT OF SECTION 1 THAT ALL CLAIMS MUST BE SUBMITTED WITHIN 1 YEAR FROM VACATING THE PROPERTY. THEREFORE, THE POLICY CONTAINED IN SECTION 771.8(9) OF THE BUREAU'S REALTY MANUAL SHOULD BE REVISED TO REFLECT THE HOLDING OF THIS DECISION THAT PUBLIC LAW 85-433, 43 U.S.C. 1231-1234, LIMITS PAYMENT OF EXPENSES TO THOSE INCURRED AND CLAIMED WITHIN 1 YEAR AFTER VACATING OF THE PROPERTY INVOLVED. OF COURSE, WHETHER OR NOT A CLAIM WILL BE CONSIDERED TO HAVE BEEN SUBMITTED TO THE SECRETARY WITHIN THE TIME LIMITATION WOULD DEPEND ON THE FACTS AND CIRCUMSTANCES IN THE PARTICULAR CASE.

WE WISH TO POINT OUT, HOWEVER, THAT PUBLIC LAW 85-433, 43 U.S.C. 1231 1234, WAS REPEALED BY SECTION 220(A)(1) OF THE UNIFORM RELOCATION ASSISTANCE AND READ PROPERTY ACQUISITION POLICIES ACT OF 1970, PUBLIC LAW 91-646, 84 STAT. 1894, 1903. THEREFORE, THOSE PERSONS DISPLACED ON OR AFTER JANUARY 2, 1971, THE EFFECTIVE DATE OF PUBLIC LAW 91-646, BY THE ACQUISITION OF REAL PROPERTY FOR A PROGRAM OR PROJECT UNDERTAKEN BY YOUR DEPARTMENT SHOULD BE COMPENSATED FOR MOVING AND RELATED EXPENSES IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 91-646. PERSONS DISPLACED PRIOR TO JANUARY 2, 1971, SHOULD CONTINUE TO BE REIMBURSED FOR MOVING AND RELOCATION EXPENSES AS PROVIDED BY PUBLIC LAW 85-433. IN THIS REGARD WE CALL YOUR ATTENTION TO SECTION 213 OF PUBLIC LAW 91 646 42 U.S.C. 4633, WHICH AUTHORIZES THE HEAD OF EACH FEDERAL AGENCY TO ESTABLISH SUCH REGULATIONS AND PROCEDURES AS HE DEEMS NECESSARY FOR IMPLEMENTING THE PROVISIONS OF THE ACT.

AS THIS DECISION CONTAINS INSTRUCTION FOR CORRECTIVE ACTION TO BE TAKEN IN REGARD TO DEPARTMENTAL POLICY ON THIS MATTER, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 84 STAT. 1140, 1171, 31 U.S.C. 1176, WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS TO CERTAIN COMMITTEES OF THE CONGRESS AS TO THE ACTION TAKEN WITH RESPECT THERETO. THE STATEMENTS ARE TO BE SENT TO THE COMMITTEES ON GOVERNMENT OPERATIONS OF BOTH HOUSES NOT LATER THAN 60 DAYS AFTER THE DATE OF THIS DECISION AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THIS DECISION.