B-141454, APR. 4, 1960

B-141454, APR. 4, 1960

TO MAJOR ALBERT V. WORKS, JR., USAF:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25, 1960, RELATIVE TO YOUR CLAIM FOR REFUND OF AMOUNTS COLLECTED FROM YOU AS THE EXCESS COST OF PACKING, DRAYING AND SHIPPING YOUR HOUSEHOLD EFFECTS.

THE RECORD SHOWS THAT INCIDENT TO ORDERS DATED NOVEMBER 28, 1955, TRANSFERRING YOU FROM MCCHORD AIR FORCE BASE, WASHINGTON, TO DUTY OVERSEAS YOU, AND YOUR WIFE ACTING IN YOUR BEHALF, REQUESTED CERTAIN SHIPMENTS OF YOUR HOUSEHOLD EFFECTS AND AGREED THAT YOU WOULD PAY ANY EXCESS COST INVOLVED BY REASON OF SHIPPING HOUSEHOLD EFFECTS IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE. SINCE THE VARIOUS SHIPMENTS WEIGHED A TOTAL OF 15,005 POUNDS, THE DEPARTMENT OF THE AIR FORCE DETERMINED THAT YOU WERE LIABLE FOR EXCESS COST OF $621.18 FOR PACKING AND DRAYING, AND $206.18 FOR SHIPPING, 4254 POUNDS OF HOUSEHOLD EFFECTS IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE. THE AMOUNT OF $473 HAS BEEN COLLECTED FROM YOU, LEAVING AN UNPAID BALANCE OF $354.36.

THE BASIS OF YOUR CLAIM FOR REFUND OF $473 IS THAT EXCESSIVE PACKING WAS USED BY WIGINGTON BROTHERS TRANSFER AND STORAGE COMPANY. YOUR CONTENTIONS IN THIS RESPECT WERE FULLY CONSIDERED IN OUR DECISION OF FEBRUARY 18, 1960, B-141454, IN WHICH YOU WERE ADVISED THAT PARAGRAPH 8001 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDED THAT IN CERTAIN INSTANCES WHERE, THROUGH NO FAULT OF THE OWNER, THE TARE WEIGHT OF A SHIPMENT IS IN EXCESS OF THE PERCENTAGE INCREASE ALLOWED FOR PACKING AND CRATING, THE CASE MAY BE REFERRED TO THE SERVICE CONCERNED FOR AUTHORITY TO DEVIATE FROM ESTABLISHED WEIGHT ALLOWANCES; THAT YOU HAD SPECIFICALLY REFERRED TO THAT PROVISION IN PRESENTING YOUR CLAIM TO THE AIR FORCE, AND THAT NO ADJUSTMENT WAS MADE BY THE AIR FORCE WITH RESPECT TO THE TARE WEIGHTS INVOLVED IN YOUR SHIPMENTS. SINCE THE WEIGHT OF YOUR HOUSEHOLD EFFECTS AS SHIPPED EXCEEDED YOUR WEIGHT ALLOWANCE PLUS NORMAL ALLOWANCE FOR PACKING AND CRATING, YOU WERE ADVISED THAT THERE IS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM.

IN YOUR PRESENT LETTER YOU ASK WHETHER YOU ARE REQUIRED TO PAY THE REMAINING EXCESS COST, AND WHAT FURTHER STEPS YOU SHOULD TAKE TO REGAIN THE AMOUNT COLLECTED FROM YOU. ALSO, YOU SAY THAT WIGINGTON BROTHERS TRANSFER AND STORAGE COMPANY HAS BEEN FINED $10,000 IN FOUR SIMILAR CASES, AND YOU REQUEST THAT A SUIT BE INSTITUTED BY THE UNITED STATES AGAINST THAT FIRM BY REASON OF FRAUD IN YOUR CASE.

THE RECORD SHOWS THAT CIVIL SUIT WAS FILED AGAINST WIGINGTON BROTHERS TRANSFER AND STORAGE COMPANY IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, BASED ON SEVEN ALLEGED FALSE CLAIMS FOR PACKING AND CRATING UNDER CONTRACT AF-41/612/-1029, DATED MAY 11, 1956. THE GOVERNMENT OBTAINED JUDGMENT IN THE AMOUNT OF $10,000 ON FOUR OF THE CLAIMS IN WHICH IT WAS CLEARLY ESTABLISHED THAT THE DEFENDANT "KNOWINGLY" DEVIATED FROM THE BEST COMMERCIAL PRACTICE TO PAD HIS CLAIM WITH OVER- PACKING. IN TWO OF THE CLAIMS THE GOVERNMENT WAS UNABLE TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT THE CLAIM WAS FALSE, AND IN ONE IT ABANDONED ACTION WITHOUT FURTHER ISSUE. YOUR EFFECTS WERE PACKED UNDER THE SAME CONTRACT. HOWEVER, THE AIR FORCE, UPON CONSIDERATION OF AVAILABLE FACTS DID NOT INCLUDE IT AMONG THE SEVEN SELECTED FOR SUIT, AND THERE APPEARS NO BASIS ON WHICH THIS OFFICE MAY NOW CONCLUDE THAT THERE IS SUCH EVIDENCE OF FALSE CLAIM BY THE COMPANY AS TO WARRANT REFERRING THE MATTER TO THE ATTORNEY GENERAL. THE MERE FACT THAT THE WEIGHT OF PACKING MATERIALS MAY EXCEED THE USUAL ALLOWANCE FOR PACKING DOES NOT ESTABLISH THAT THE PACKER'S CLAIM FOR SERVICES RENDERED IS FALSE, NOR THAT THE OWNER IS NOT LIABLE FOR EXCESS COST INCURRED BY REASON OF THE FACT THAT HIS EFFECTS AS PACKED AND SHIPPED EXCEEDED HIS AUTHORIZED WEIGHT ALLOWANCE.

SINCE YOUR LETTER FURNISHES NO EVIDENCE OR MATERIAL INFORMATION NOT PREVIOUSLY CONSIDERED, IT AFFORDS NO BASIS FOR MODIFICATION OF OUR PRIOR ACTION IN DENYING YOUR CLAIM. SUCH ACTION, AS IN THE CASE OF ALL CLAIMS AGAINST THE UNITED STATES, IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE GOVERNMENT IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUES. 28 U.S.C. 262. SINCE THE RECORD INDICATES YOU WERE PROPERLY CHARGED WITH THE EXCESS COST INCURRED YOU WILL BE REQUIRED TO PAY THE BALANCE.

WITH RESPECT TO YOUR REQUEST THAT THE PAPERS COMPRISING YOUR CLAIM BE RETURNED TO YOU, YOU ARE ADVISED THAT IT WILL BE NECESSARY TO RETAIN THE PAPERS HERE SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH OUR ACTION ON YOUR CLAIM WAS BASED.