B-210862, JUN 9, 1983

B-210862, JUN 9, 1983

DIGEST: AN EMPLOYEE WHO HAD NOT SOLD HIS RESIDENCE AT HIS OLD DUTY STATION BY JUNE 30, 1982, IS NOT ENTITLED TO REIMBURSEMENT FOR REAL ESTATE EXPENSES WHICH MAY BE INCURRED IN THE SALE OF THAT RESIDENCE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION SINCE THE SETTLEMENT WILL NOT OCCUR WITHIN 2 YEARS OF DATE ON WHICH THE EMPLOYEE REPORTED TO HIS NEW DUTY STATION AS REQUIRED BY APPLICABLE REGULATIONS. THE AMENDMENT TO THE REGULATIONS ALLOWING A 1-YEAR EXTENSION OF THE 2-YEAR TIME LIMITATION FOR COMPLETION OF RESIDENCE TRANSACTIONS, IS EFFECTIVE ONLY FOR EMPLOYEES WHOSE ENTITLEMENT PERIOD HAD NOT EXPIRED PRIOR TO AUGUST 23, 1982. SINCE THE EMPLOYEE'S ENTITLEMENT PERIOD EXPIRED PRIOR TO THAT DATE, THE AMENDMENT IS NOT APPLICABLE.

RICHARD J. WALSH:

THE DIRECTOR, FINANCIAL MANAGEMENT DIVISION, ENVIRONMENTAL PROTECTION AGENCY, REQUESTS OUR DECISION AS TO WHETHER AN EMPLOYEE MAY BE REIMBURSED REAL ESTATE EXPENSES INCIDENT TO A PERMANENT CHANGE OF STATION BASED UPON CHANGES IN TRAVEL REGULATIONS EFFECTIVE AFTER THE EXPIRATION OF THE AUTHORIZED TIME LIMIT FOR THE SALE OF HIS RESIDENCE. PAYMENT IS NOT AUTHORIZED SINCE THE TIME LIMIT IN THIS CASE HAD EXPIRED BEFORE THE REGULATIONS WERE CHANGED, AND THE REGULATIONS RESTRICTING THE PERIOD OF SETTLEMENT NECESSARY FOR REIMBURSEMENT HAVE THE FORCE AND EFFECT OF LAW AND CANNOT BE WAIVED.

MR. RICHARD J. WALSH, AN EMPLOYEE OF THE ENVIRONMENTAL PROTECTION AGENCY, WAS TRANSFERRED MARCH 9, 1980, FROM BOSTON, MASSACHUSETTS, TO PHILADELPHIA, PENNSYLVANIA. HE REPORTED AT HIS NEW DUTY STATION ON JUNE 30, 1980, WHERE HE PURCHASED A RESIDENCE AND MOVED HIS FAMILY IN MARCH 1981. ON NOVEMBER 19, 1981, HE REQUESTED THAT REIMBURSEMENT OF THE COST OF SELLING HIS RESIDENCE AT HIS OLD DUTY STATION BE EXTENDED UNTIL SUCH TIME AS IT WAS SOLD SINCE HE HAD NOT YET BEEN ABLE TO SELL IT. ON NOVEMBER 8, 1982, HE REQUESTED THAT THE SETTLEMENT DATE FOR THE SALE BE FURTHER EXTENDED TO 3 YEARS FROM THE DATE OF HIS TRAVEL AUTHORIZATION, SINCE HE STILL HAD BEEN UNABLE TO SELL HIS FORMER RESIDENCE DUE TO ECONOMIC CONDITIONS.

THE REIMBURSEMENT OF FEDERAL EMPLOYEES FOR CERTAIN EXPENSES INCURRED IN CONNECTION WITH THE RESIDENCE TRANSACTIONS INCIDENT TO A TRANSFER OF DUTY STATION IS GOVERNED BY 5 U.S.C. SEC. 5724A (1976) AND REGULATIONS ISSUED PURSUANT THERETO BY THE GENERAL SERVICES ADMINISTRATION. AT THE TIME OF MR. WALSH'S TRANSFER, THE APPLICABLE REGULATIONS GOVERNING THE TIME LIMITATION ON THE SALE OF A RESIDENCE WERE CONTAINED IN PARAGRAPH 2-6.1E OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7), WHICH PROVIDES:

"E. TIME LIMITATION. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN 1 (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION. UPON AN EMPLOYEE'S WRITTEN REQUEST THIS TIME LIMIT FOR COMPLETION OF THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTION MAY BE EXTENDED BY THE HEAD OF THE AGENCY OR HIS/HER DESIGNEE FOR AN ADDITIONAL PERIOD OF TIME, NOT TO EXCEED 1 YEAR, REGARDLESS OF THE REASONS THEREFOR SO LONG AS IT IS DETERMINED THAT THE PARTICULAR RESIDENCE TRANSACTION IS REASONABLY RELATED TO THE TRANSFER OF OFFICIAL STATION."

CLEARLY, UNDER THIS REGULATION THE ADDITIONAL PERIOD OF TIME AFTER THE INITIAL 1-YEAR PERIOD MAY NOT BE EXTENDED BEYOND 1 YEAR. 58 COMP.GEN. 539 (1979). IN THE PRESENT CASE, THIS PERIOD EXPIRED IN JUNE 1982 BEFORE MR. WALSH COULD SELL HIS FORMER RESIDENCE. WHILE WE DO NOT QUESTION THE CONTENTION THAT HE WAS UNABLE TO SELL HIS RESIDENCE AS A RESULT OF CONDITIONS THAT WERE ESSENTIALLY BEYOND HIS CONTROL, THE PROVISIONS OF THE FTR ISSUED PURSUANT TO 5 U.S.C. SEC. 5724A (1976), HAVE THE FORCE AND EFFECT OF LAW, AND MAY NOT BE WAIVED OR MODIFIED BY THIS OFFICE OR ANY AGENCY CONCERNED EVEN THOUGH AN EMPLOYEE'S INABILITY TO SELL HIS RESIDENCE MAY BE DUE TO DIFFICULTIES IN THE HOUSING MARKET, BY FINANCING CONSTRAINTS, OR OTHER FACTORS. MATTER OF BALLENTINE, B-193607, MARCH 8, 1979; MATTER OF JOHNSON, B-207730, JULY 7, 1982.

AS THE DIRECTOR, FINANCIAL MANAGEMENT DIVISION, NOTES A CHANGE TO FTR PARA. 2-6.1E ISSUED BY THE GENERAL SERVICES ADMINISTRATION NOW PERMITS EXTENSION OF THE RESIDENCE TRANSACTION ELIGIBILITY PERIOD FOR AN ADDITIONAL YEAR BEYOND THE 2-YEAR PERIOD WHEN NECESSARY. GSA BULLETIN FPMR A-40, SUPPLEMENT 4, 47 FED.REG. 44,565, OCTOBER 8, 1982. ALTHOUGH MR. WALSH WAS INFORMED BY HIS AGENCY THAT THE CHANGED REGULATION WAS NOT APPLICABLE TO HIM, HE APPEALED THEIR DETERMINATION ON THE BASIS THAT HIS TRANSFER WAS INVOLUNTARY, RELOCATION WAS DURING A DECLINE IN THE HOUSING MARKET, AND HE HAD MOVED MANY TIMES DURING HIS FEDERAL EMPLOYMENT.

THE REVISION OF FTR PARA. 2-6.1E TO PROVIDE FOR AN EXTENSION OF THE TIME LIMIT TO 3 YEARS IS EFFECTIVE ONLY FOR EMPLOYEES WHOSE ENTITLEMENT PERIOD WOULD NOT HAVE EXPIRED PRIOR TO THE ISSUANCE DATE (SIGNATURE DATE) OF THE REVISION TO THE REGULATION, AUGUST 23, 1982. UNFORTUNATELY, MR. WALSH'S ENTITLEMENT PERIOD EXPIRED ON JUNE 30, 1982, WHICH WAS 2 YEARS FROM THE DATE HE REPORTED FOR DUTY IN PHILADELPHIA. THEREFORE, THE REVISION OF THE REGULATION ALLOWING FOR A THIRD YEAR TO COMPLETE RESIDENCE TRANSACTIONS IS NOT APPLICABLE TO MR. WALSH. COMPARE MATTER OF GORDON, B-210478, MARCH 17, 1983 (62 COMP.GEN. ).

ACCORDINGLY, THERE IS NO AUTHORITY TO ALLOW MR. WALSH TO CLAIM REAL ESTATE EXPENSES IN THIS CASE.