B-156583, AUG. 12, 1965

B-156583, AUG. 12, 1965

TO MR. ANGELO J. SMERALDI:

THIS REFERS TO YOUR LETTER OF MAY 19, 1965, CONCERNING YOUR CLAIM FOR $191.13, REPRESENTING OCEAN FREIGHT CHARGES FOR THE SHIPMENT OF A VOLKSWAGEN AUTOMOBILE FROM HAMBURG, GERMANY, TO MOGADISCIO, REPUBLIC OF SOMALI, INCIDENT TO YOUR EMPLOYMENT WITH THE U.S. INFORMATION SERVICE.

THE CLAIM WAS DISALLOWED BY SETTLEMENT OF JANUARY 7, 1965, FOR THE REASON THAT YOU PURCHASED THE CAR AND TOOK DELIVERY FROM THE MOGADISCIO AGENT AT A PRICE WHICH INCLUDED THE TRANSPORTATION CHARGES AND, THEREFORE, NEITHER YOU NOR A MEMBER OF YOUR FAMILY AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE OWNED THE AUTOMOBILE AT THE TIME OF SHIPMENT AS REQUIRED BY FOREIGN AFFAIRS MANUAL 165.2 WHICH IS THE APPLICABLE REGULATION IN THIS CASE. REVIEWED THE MATTER UPON YOUR REQUEST AND STATED IN OUR DECISION OF MAY 5, 1965, B-156583, THAT IN VIEW OF THE CLEAR AND UNQUALIFIED TERMS OF THE REGULATION, QUOTED IN PART THEREIN, WE HAD NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE.

YOU AGREE THAT THE CONDITIONS UNDER WHICH YOU OBTAINED THE AUTOMOBILE DO NOT FULFILL THE REQUIREMENTS OF THE CITED REGULATION BUT SAY THAT NO ONE CAN COMPLY THEREWITH FOR THE REASON THAT EITHER THE MANUFACTURER OR ITS LOCAL AGENT, FOR THEIR OWN REASONS,"HAVE FOUND IT INCONVENIENT OR IMPOSSIBLE TO SHIP AUTOMOBILES TO THIS COUNTRY IN A MANNER THAT WOULD ACCORD WITH THE TRAVEL REGULATIONS.' YOU ALSO SAY THAT OTHERS HAVE HAD THE SAME EXPERIENCE AND THAT THE ADMINISTRATIVE OFFICE IS DRAFTING A REPORT CONCERNING THE SITUATION TO THE UNDER SECRETARY FOR ADMINISTRATION OF THE DEPARTMENT OF STATE WITH THE VIEW OF OBTAINING AN EXCEPTION TO THE REGULATION AS TO SHIPMENT OF CARS TO MOGADISCIO. IN VIEW THEREOF WE FORWARDED COPIES OF YOUR LETTER AND OF OUR DECISION OF MAY 5, 1965, B- 156583, TO THE UNDER SECRETARY FOR HIS COMMENTS. IN HIS REPLY OF AUGUST 4, 1965, THAT OFFICIAL STATED HE HAS NOT RECEIVED THE COMMUNICATION FROM THE EMBASSY TO WHICH YOU REFERRED, BUT ON THE BASIS OF THE FACTS PRESENTED HE EXPRESSED THE VIEW THAT THE DISALLOWANCE WAS APPROPRIATE.

THE DISBURSEMENT OF PUBLIC FUNDS IS GOVERNED BY LAWS AND REGULATIONS ISSUED PURSUANT THERETO WHICH HAVE THE FORCE AND EFFECT OF LAW. WHILE WE FULLY APPRECIATE THE CONDITIONS WHICH PREVAIL IN THIS CASE WE ARE WITHOUT AUTHORITY TO WAIVE THE SPECIFIC REQUIREMENT OF OWNERSHIP OF THE VEHICLE AND WE DO NOT SEE HOW ANY CHANGE WHICH HEREAFTER MAY BE MADE IN THE REGULATION MAY BE APPLIED RETROACTIVELY.

CONCERNING YOUR REQUEST FOR INFORMATION WITH RESPECT TO FURTHER ADMINISTRATIVE APPEAL, OUR DECISIONS ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT BUT NOT UPON THE COURTS. SEE 28 U.S.C. 1491 (AS AMENDED BY PUB.L. 88-519, APPROVED AUGUST 30, 1964), AND 28 U.S.C. 1346.

AS TO YOUR REQUEST FOR A HEARING IN THE MATTER UPON YOUR RETURN ON OR ABOUT NOVEMBER 1, 1965, YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE MUST BE BASED UPON THE WRITTEN RECORD AND ANY ADDITIONAL INFORMATION WHICH YOU WISH TO BE GIVEN CONSIDERATION MUST BE SO PRESENTED. HOWEVER, WE HAVE NO OBJECTION TO A PERSONAL DISCUSSION OF THE MATTER AND UPON YOUR RETURN TO WASHINGTON YOU MAY CONTACT MR. E. N. HALL, CODE 129, EXTENSION 5681, AND ARRANGE THE TIME THEREFOR.

WE REGRET WE ARE UNABLE TO MAKE A MORE FAVORABLE RESPONSE TO YOUR REQUEST.