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B-170792, JAN 19, 1972

B-170792 Jan 19, 1972
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THE RULE IS WELL ESTABLISHED THAT WHERE CHARGES ARE QUESTIONED. " *** THAT ALL SUCH CLAIMS ON WHICH DEDUCTIONS HAVE BEEN MADE OR WILL BE MADE BE HELD IN ABEYANCE UNTIL A JUDICIAL RULING IS MADE. " SINCE SEVERAL SIMILAR CASES ARE INVOLVED IN C. THE REMAINING ITEMS IN THE SUIT INVOLVE PRINCIPALLY THE QUESTION AS TO MANNER IN WHICH MILEAGE IS TO BE COMPUTED - WHETHER OVER THE ACTUAL ROUTE OF MOVEMENT AND INTERCHANGE POINTS OR OVER THE SHORTEST PRACTICABLE TRUCK ROUTE - TO DETERMINE UNDER THE APPLICABLE TARIFFS THE MILEAGE RATE AND CHARGES ON THE SHIPMENTS THERE INVOLVED. PROJECTILE PARTS AND ELECTRICAL INSTRUMENTS INCLUDED IN SHIPMENTS OF EXPLOSIVES AND BLASTING SUPPLIES AND WHICH COMMODITIES ARE NOT SPECIFICALLY MENTIONED IN THE APPLICABLE TARIFFS.

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B-170792, JAN 19, 1972

TRANSPORTATION CHARGES - DEDUCTION ACTION - BURDEN OF PROOF DECISION DENYING A REQUEST OF THE C. I. WHITTEN TRANSFER CO. THAT A DEDUCTION ACTION BE HELD IN ABEYANCE PENDING A JUDICIAL DETERMINATION OF SIMILAR ISSUES. IN ADDITION, WHITTEN QUESTIONS THE FAIRNESS OF ITS BEING OBLIGED TO BEAR THE BURDEN OF PROOF IN THIS MATTER. IT WOULD BE UNREASONABLE TO GRANT SUCH A REQUEST SINCE THE GOVERNMENT'S RIGHT TO DEDUCTION MUST BE EXERCISED WITHIN THREE YEARS. 49 U.S.C. 66. FURTHERMORE, THE RULE IS WELL ESTABLISHED THAT WHERE CHARGES ARE QUESTIONED, THE CARRIER BEARS THE RESPONSIBILITY OF ESTABLISHING THEIR CORRECTNESS. IN VIEW OF THESE FACTS, THE REQUEST THAT DEDUCTIONS BE HELD IN ABEYANCE MUST BE DENIED.

TO C. I. WHITTEN TRANSFER CO.:

IN YOUR LETTER OF NOVEMBER 23, 1971, REPLYING TO OUR LETTER OF NOVEMBER 15, 1971, B-170792, YOU REQUEST, IN PART, " *** THAT ALL SUCH CLAIMS ON WHICH DEDUCTIONS HAVE BEEN MADE OR WILL BE MADE BE HELD IN ABEYANCE UNTIL A JUDICIAL RULING IS MADE," SINCE SEVERAL SIMILAR CASES ARE INVOLVED IN C. I. WHITTEN TRANSFER CO. V UNITED STATES, U.S.D.C. SOUTHERN DISTRICT OF WEST VIRGINIA, CIVIL ACTION 2750.

CIVIL ACTION NO. 2750 INVOLVES, IN ITEM NO. 1, PRIMARILY THE ISSUE OF MISROUTE. THE REMAINING ITEMS IN THE SUIT INVOLVE PRINCIPALLY THE QUESTION AS TO MANNER IN WHICH MILEAGE IS TO BE COMPUTED - WHETHER OVER THE ACTUAL ROUTE OF MOVEMENT AND INTERCHANGE POINTS OR OVER THE SHORTEST PRACTICABLE TRUCK ROUTE - TO DETERMINE UNDER THE APPLICABLE TARIFFS THE MILEAGE RATE AND CHARGES ON THE SHIPMENTS THERE INVOLVED. B-170792 CONCERNS THE APPLICABLE RATE FOR THE MOVEMENT OF INERT, NON EXPLOSIVE MATERIAL; I.E. PROJECTILE PARTS AND ELECTRICAL INSTRUMENTS INCLUDED IN SHIPMENTS OF EXPLOSIVES AND BLASTING SUPPLIES AND WHICH COMMODITIES ARE NOT SPECIFICALLY MENTIONED IN THE APPLICABLE TARIFFS. THUS, AND WHILE SOME OF THE SHIPMENTS INVOLVED IN CIVIL ACTION 2750 MAY INCLUDE INERT, NON -EXPLOSIVE MATERIAL, IT IS NOT AT ALL CERTAIN THAT A FINAL JUDICIAL DECISION OF THAT SUIT WOULD TURN UPON OR BE DECISIVE AS TO THE MATTERS INVOLVED IN B-170792.

IN ANY EVENT, WE WOULD NOT BE JUSTIFIED IN HOLDING DEDUCTION ACTION IN ABEYANCE PENDING FINAL RESOLUTION OF A COURT SUIT IN WHICH SIMILAR ISSUES ARE PRESENTED, SINCE THE GOVERNMENT'S RIGHT OF DEDUCTION WOULD BE LOST UNLESS EXERCISED WITHIN THREE YEARS, AS PROVIDED IN 49 U.S.C. 66. FURTHERMORE, THE FACT THAT A SUIT INVOLVING THE SAME OR SIMILAR ISSUES IS PRESENTLY BEFORE A COURT CONSTITUTES NO BASIS FOR WITHHOLDING DEDUCTION ACTION AS TO OTHER AMOUNTS DETERMINED IN OUR AUDIT TO HAVE BEEN OVERCHARGED, SINCE SUCH SUITS ARE OFTEN DISCONTINUED, ITEMS WITHDRAWN OR COMPROMISED SO THAT NO FINAL JUDICIAL DETERMINATION RESULTS WHICH COULD BE APPLIED TO SUCH OVERPAYMENTS.

ACCORDINGLY, IN THE ABSENCE OF SOME COMPELLING REASON WHICH WOULD WARRANT A REVISION OF OUR POSITION IN THE MATTER, AND IN VIEW OF THE THREE-YEAR LIMITATION OF TIME IN THE ACT OF AUGUST 26, 1958, 49 U.S.C. 66, WE WOULD NOT BE WARRANTED IN DELAYING OUR COLLECTION OF APPARENT OVERCHARGES PENDING A FINAL JUDICIAL DETERMINATION OF THE SUIT TO WHICH YOU REFER.

YOU ALSO STATE:

" *** YOU HAVE FAILED TO PROVIDE US WITH A JUDICIAL FINDING OR AN INTERSTATE COMMERCE COMMISSION OPINION TO ENFORCE YOUR FINDING, INFERRING THAT IT IS OUR RESPONSIBILITY TO PROVE YOU WRONG. THIS APPEARS TO REVERSE THE LONG ACCEPTED LEGAL STANDARD THAT A MAN IS INNOCENT UNTIL PROVEN GUILTY. *** "

THE LEGAL STANDARD TO WHICH YOU REFER IS A DOCTRINE OF CRIMINAL NOT OF CIVIL LAW. AS A GENERAL RULE, AT CIVIL LAW, THE PARTY HAVING THE AFFIRMATIVE OF AN ISSUE HAS THE BURDEN OF PROOF.

IN CONNECTION WITH CLAIMS AGAINST THE UNITED STATES, THE COURT OF CLAIMS HELD, AT A VERY EARLY DATE, IN CHARLES V UNITED STATES, 19 CT. CL. 316, 319 (1884), AND IN LONGWILL V UNITED STATES, 17 CT. CL. 288, 291 (1881), THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE THE RIGHT AND DUTY TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ALL CLAIMS CONCERNING WHICH ANY DOUBTS EXIST. FOLLOWING THOSE DECISIONS, OUR OFFICE HAS ALWAYS HELD THAT THE BURDEN IS NOT ON US TO REFUTE CLAIMS PRESENTED HERE FOR SETTLEMENT OR THE ALLEGATIONS UPON WHICH SUCH CLAIMS ARE BASED, BUT THE BURDEN IS ON THE CLAIMANTS TO FURNISH EVIDENCE, EITHER TO OUR OFFICE OR TO THE COURT, IF THEY CHOOSE TO FILE SUIT, CLEARLY AND SATISFACTORILY ESTABLISHING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO IN ORDER TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THEIR RIGHT TO RECEIVE PAYMENT. SEE 18 COMP. GEN. 199, 200; ID. 980; AND 31 COMP. GEN. 340.

THESE RULINGS WERE CONFIRMED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V NEW YORK, N. H. & H. R., 355 U.S. 253 (1957), PREVIOUSLY CITED TO YOU IN OUR LETTER OF NOVEMBER 15, 1971, B-170792, IN WHICH THE COURT STATED THAT PRIOR TO THE ENACTMENT OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, THE GOVERNMENT PROTECTED ITSELF AGAINST TRANSPORTATION OVERCHARGES BY NOT PAYING TRANSPORTATION BILLS UNTIL THE RESPONSIBLE GOVERNMENT OFFICERS AND, IN DOUBTFUL CASES, THE GENERAL ACCOUNTING OFFICE FIRST AUDITED THE BILLS AND FOUND THAT THE CHARGES WERE CORRECT. WHEN CHARGES WERE QUESTIONED THE CARRIER BORE THE BURDEN OF PRESENTING EVIDENCE JUSTIFYING ITS CLAIM. SECTION 322 CHANGED THE PROCEDURE TO REQUIRE PAYMENT OF SUCH BILLS UPON PRESENTATION AND PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, BUT THE COURT EXPRESSLY HELD THAT THE BURDEN OF THE CARRIERS TO ESTABLISH THE CORRECTNESS OF THEIR CHARGES WAS TO CONTINUE UNABRIDGED. THEREFORE, QUITE APART FROM THE PROVISIONS OF THE CARRIER'S TARIFF OR THE CONTRACT OF CARRIAGE, THE LAW PLACES UPON THE CLAIMANT THE BURDEN OF ESTABLISHING THE PROPRIETY OF HIS CLAIM BEFORE OUR OFFICE.

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