B-180674, APR 2, 1974

B-180674, APR 2, 1974

SECTION 4.1(E)(2) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56 SETS FORTH CONDITIONS FOR REIMBURSEMENT OF EXPENSES INCURRED IN REAL ESTATE TRANSACTIONS INCIDENT TO TRANSFER OF DUTY STATIONS. FOR AN EXTENSION OF TIME BEYOND THE ONE-YEAR PERIOD THERE MUST HAVE BEEN IN EXISTENCE WRITTEN CONTRACT FOR SALE OF RESIDENCE ENTERED INTO WITHIN INITIAL ONE-YEAR PERIOD FROM DATE OF REPORTING TO NEW DUTY STATION. UNLESS THIS CONDITION IS SATISFIED, THERE IS NO BASIS FOR GRANTING EXTENSION OF INITIAL ONE-YEAR PERIOD FOR SETTLEMENT. SEE DECISIONS CITED.

TO BRIAN J. BATTERSBY:

THIS IS A REQUEST FOR RECONSIDERATION OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IN DETERMINING THAT BRIAN J. BATTERSBY D.D.S., AN EMPLOYEE OF THE VETERANS ADMINISTRATION, IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $1,722.79, FOR EXPENSES INCURRED IN CONNECTION WITH REAL ESTATE TRANSACTIONS INCIDENT TO A TRANSFER OF DUTY STATION.

THE RECORD SHOWS THAT DR. BATTERSBY WAS TRANSFERRED FROM TRENTON, MICHIGAN, TO THE VETERANS ADMINISTRATION HOSPITAL, BRECKSVILLE, OHIO, EFFECTIVE FEBRUARY 2, 1969. ON JANUARY 5, 1970, DR. BATTERSBY APPLIED FOR A 90-DAY EXTENSION OF THE ONE-YEAR TIME PERIOD FOR THE SALE OF HIS FORMER RESIDENCE AND PURCHASE OF HIS NEW RESIDENCE FOR THE REASON THAT HIS WIFE'S ILLNESS PRECLUDED THE SALE OF HIS RESIDENCE WITHIN THE INITIAL ONE-YEAR PERIOD. THIS WAS APPROVED ON JANUARY 8, 1970. A SALES AGREEMENT WAS SUBSEQUENTLY ENTERED INTO ON MARCH 20, 1970, AND THE DATE OF SETTLEMENT FOR THE SALE OF HIS RESIDENCE AT TRENTON WAS JULY 2, 1970.

SECTION 4.1E OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, IN EFFECT AT THE TIME THE REAL ESTATE TRANSACTIONS WERE MADE SETS FORTH THE FOLLOWING CONDITION FOR REIMBURSEMENT TO AN EMPLOYEE OF EXPENSES INCURRED IN REAL ESTATE TRANSACTIONS:

"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."

UNDER SUBSECTION (2) OF THE ABOVE-QUOTED SECTION, IN ORDER FOR AN EXTENSION OF TIME TO BE GRANTED, THERE MUST HAVE BEEN IN EXISTENCE A WRITTEN CONTRACT FOR THE SALE OF THE RESIDENCE ENTERED INTO WITHIN THE INITIAL ONE-YEAR PERIOD FROM THE DATE OF REPORTING AT THE NEW DUTY STATION. UNLESS THIS CONDITION IS SATISFIED, THERE IS NO BASIS FOR GRANTING AN EXTENSION OF THE INITIAL ONE-YEAR PERIOD FOR SETTLEMENT. SEE B-174315, NOVEMBER 15, 1971; B-171085, DECEMBER 28, 1970. THE 90 DAY EXTENSION GRANTED DR. BATTERSBY WAS THEREFORE IMPROPER.

IN SETTLING CLAIMS THIS OFFICE MAY AUTHORIZE PAYMENT ONLY IN ACCORDANCE WITH LAW AND VALID REGULATIONS PROMULGATED IN ACCORDANCE WITH STATUTORY PROVISIONS. THE APPLICABLE REGULATION SECTION 4.1E OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, HAS THE FORCE AND EFFECT OF LAW AND MAY NOT BE WAIVED SO AS TO PERMIT REIMBURSEMENT. SEE 49 COMP. GEN. 145, 147 (1969). THE CONDITION WHICH DELAYED THE SALE OF CLAIMANT'S HOUSE I.E., HIS WIFE'S ILLNESS, DID NOT CONSTITUTE AN EXCEPTION FROM THE CONTROLLING STATUTORY REGULATION. SEE B- 176582, SEPTEMBER 5, 1972.

DR. BATTERSBY ARGUES THAT HE WAS ADVISED BY COMPETENT AUTHORITY, THE HOSPITAL DIRECTOR AND THE CHIEF OF FISCAL SERVICE BRECKSVILLE VETERANS ADMINISTRATION HOSPITAL, THAT THE PERIOD FOR THE SALE OR PURCHASE OF HIS RESIDENCES COULD BE EXTENDED UNDER THE CIRCUMSTANCES IN HIS CASE BEYOND THE ONE-YEAR PERIOD. WHILE DR. BATTERSBY MAY HAVE BEEN MISLED REGARDING THE EXTENSION OF THE ONE-YEAR PERIOD 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).

FOR THE FOREGOING REASONS WE MUST SUSTAIN THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN DETERMINING THAT THE AMOUNT OWED THE GOVERNMENT BY THE CLAIMANT CONSTITUTES A VALID DEBT DUE THE UNITED STATES.