B-176102, SEP 8, 1972

B-176102, SEP 8, 1972

CIVILIAN EMPLOYEE - SALE OF RESIDENCE - TIME LIMIT - LOCATION DENIAL OF CLAIM BY DAVID W. MARLER FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO A TRANSFER OF OFFICIAL STATION. SINCE THE SETTLEMENT DATE FOR THE SALE OF THE HAMPTON, VA., RESIDENCE (FEBRUARY 27, 1970) WAS MORE THAN ONE YEAR AFTER CLAIMANT REPORTED FOR DUTY AT DES MOINES, IA., (FEBRUARY 3, 1969) AND THE CONTRACT FOR SALE WAS NOT SIGNED WITHIN ONE YEAR OF THE TRANSFER AND WAS NOT DELAYED DUE TO LITIGATION, THERE WAS NO BASIS FOR EXTENDING THE INITIAL ONE-YEAR PERIOD INCIDENT TO THE FIRST TRANSFER. SEE B-167178, JULY 30, 1969. FURTHER, AT THE TIME CLAIMANT WAS NOTIFIED OF THE TRANSFER TO INDIANAPOLIS, IND., HIS OFFICIAL DUTY STATION AND ACTUAL RESIDENCE WERE AT DES MOINES. CONSEQUENTLY, THERE IS NO BASIS UNDER SECTION 4.1 OF OMB CIRCULAR NO. A-56 TO ALLOW REIMBURSEMENT OF THE EXPENSES INCURRED IN THE SALE OF THE HAMPTON RESIDENCE AS INCIDENT TO THE TRANSFER FROM DES MOINES TO INDIANAPOLIS.

TO MR. DAVID W. MARLER:

YOUR LETTER OF MAY 21, 1972, REQUESTED RECONSIDERATION OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IN THE SETTLEMENT CERTIFICATE DATED MAY 12, 1972, WHEREBY YOUR CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO A TRANSFER OF OFFICIAL STATION WAS DISALLOWED.

YOU WERE TRANSFERRED FROM HAMPTON, VIRGINIA, TO DES MOINES, IOWA, EFFECTIVE FEBRUARY 3, 1969, BUT YOUR DEPENDENTS AND HOUSEHOLD GOODS REMAINED AT THE OLD STATION IN HAMPTON. EFFECTIVE OCTOBER 5, 1969, YOU WERE TRANSFERRED AGAIN, THIS TIME TO INDIANAPOLIS, INDIANA. ON FEBRUARY 20, 1970, YOU ENTERED INTO A CONTRACT FOR THE SALE OF YOUR RESIDENCE IN HAMPTON. IT IS REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO THIS SALE THAT YOU ARE CLAIMING.

THE REQUIREMENTS THAT MUST BE MET BEFORE REAL ESTATE EXPENSES INCURRED IN TRANSFERRING TO A NEW OFFICIAL STATION CAN BE REIMBURSED ARE SET FORTH IN SECTION 4.1 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, WHICH PROVIDES IN PERTINENT PART:

"SECTION 4.1 CONDITIONS AND REQUIREMENTS UNDER WHICH ALLOWANCES ARE PAYABLE. TO THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION; PURCHASE (INCLUDING CONSTRUCTION) OF ONE DWELLING AT HIS NEW OFFICIAL STATION; OR THE SETTLEMENT OF AN UNEXPIRED LEASE INVOLVING HIS RESIDENCE OR A LOT ON WHICH A HOUSE TRAILER USED AS HIS RESIDENCE WAS LOCATED AT THE OLD OFFICIAL STATION; PROVIDED THAT:

"D. THE DWELLING FOR WHICH REIMBURSEMENT OF SELLING EXPENSES IS CLAIMED WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION.

"E. 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 (1) AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION OR (2) 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 CIRCUMSTANCES WHICH ARE DETERMINED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE TO JUSTIFY THE EXCEPTION UNDER (2) ABOVE SHALL BE SET FORTH IN WRITING."

THE SETTLEMENT DATE FOR THE SALE OF THE HAMPTON RESIDENCE (FEBRUARY 27, 1970) WAS MORE THAN ONE YEAR AFTER YOU REPORTED FOR DUTY AT DES MOINES (FEBRUARY 3, 1969). ALSO, THE CONTRACT FOR THE SALE OF THE HAMPTON RESIDENCE WAS NOT SIGNED WITHIN ONE YEAR AFTER THE TRANSFER TO DES MOINES, NOR WAS SETTLEMENT ON THE SALE DELAYED BECAUSE OF LITIGATION; THEREFORE, THERE WAS NO BASIS FOR EXTENDING THE INITIAL ONE YEAR PERIOD INCIDENT TO THE FIRST TRANSFER FROM HAMPTON TO DES MOINES. SEE OUR DECISION OF JULY 30, 1969, B-167178, COPY ENCLOSED.

ALTHOUGH YOU WERE GIVEN NO INFORMATION REGARDING THE ONE-YEAR LIMITATION CONTAINED IN SECTION 4.1E OF CIRCULAR NO. A-56 AND ALTHOUGH YOU MAY HAVE BEEN MISLED BY THE REFERENCE IN THE TRAVEL ORDER TO THE TWO-YEAR LIMITATION WHICH APPLIES TO REIMBURSEMENT OF MOST EXPENSES INCURRED INCIDENT TO A TRANSFER, NO BASIS IS PROVIDED THEREBY ON WHICH WE MAY ALLOW YOUR CLAIM. IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942); 44 ID. 337 (1964); 46 ID. 348 (1966). ALSO AS STATED IN 49 COMP. GEN. 145, 147 (1969) WITH RESPECT TO SECTION 4.1E OF CIRCULAR NO. A-56 QUOTED ABOVE:

"*** THE CIRCULAR IS A STATUTORY REGULATION WHICH HAS THE FORCE AND EFFECT OF LAW AND, THEREFORE, THE TIME LIMITATIONS THEREIN MAY NOT BE WAIVED IN AN INDIVIDUAL CASE."

SECTION 4.1 OF CIRCULAR NO. A-56 QUOTED ABOVE ALSO REQUIRES THE RESIDENCE TO BE LOCATED AT THE OLD OFFICIAL STATION AND TO BE THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF HIS TRANSFER. AT THE TIME YOU WERE INFORMED OF YOUR TRANSFER TO INDIANAPOLIS, YOUR OLD OFFICIAL STATION WAS DES MOINES AND YOUR ACTUAL RESIDENCE WAS ALSO LOCATED IN DES MOINES. THE FACT THAT YOUR FAMILY WAS STILL RESIDING IN HAMPTON IS IRRELEVANT. CONSEQUENTLY, THERE IS NO BASIS ON WHICH WE MAY ALLOW THE EXPENSES INCURRED IN THE SALE OF THE HAMPTON RESIDENCE AS INCIDENT TO THE TRANSFER FROM DES MOINES TO INDIANAPOLIS. SEE OUR DECISION OF MARCH 10, 1967, B-160898, 46 COMP. GEN. 703, COPY ENCLOSED.

ACCORDINGLY, WE MUST SUSTAIN OUR TRANSPORTATION AND CLAIMS DIVISION ACTION IN DISALLOWING YOUR CLAIM. HOWEVER, WE NOTE THAT YOU SAY YOU INCURRED EXPENSES IN BREAKING A PURCHASE CONTRACT IN DES MOINES BECAUSE OF YOUR TRANSFER TO INDIANAPOLIS. IT MAY BE THAT SOME PART OR ALL OF SUCH EXPENSES WOULD BE REIMBURSABLE. THEREFORE, WE SUGGEST YOU FILE A CLAIM THEREFOR IF YOU HAVE NOT ALREADY DONE SO. ..END :