B-156396, SEPT. 3, 1965

B-156396, SEPT. 3, 1965

TO LIEUTENANT COMMANDER JOHN E. TUCKER, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1965, PROTESTING OUR DECISION OF JUNE 8, 1965, B-156396, TO YOU, WHEREIN WE SUSTAINED THE SETTLEMENT OF FEBRUARY 25, 1965, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $240.71, REPRESENTING EXCESS COSTS COLLECTED FROM YOU INCIDENT TO THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM RISING SUN, MARYLAND, TO SAN DIEGO, CALIFORNIA, UPON PERMANENT CHANGE OF STATION. THERE IS ALSO BEFORE US AN INQUIRY FROM THE HONORABLE BOB WILSON, HOUSE OF REPRESENTATIVES, CONCERNING YOUR CLAIM.

IN OUR DECISION OF JUNE 8, 1965, WE STATED, AMONG OTHER THINGS, THAT IN THE ABSENCE OF CONVINCING EVIDENCE SHOWING THE EXACT WEIGHT OF YOUR HOUSEHOLD GOODS IMMEDIATELY BEFORE PICKUP OUR OFFICE HAS NO ALTERNATIVE BUT TO ACCEPT THE WEIGHT CERTIFICATE--- ONE WHICH WAS SIGNED BY A PUBLIC WEIGHMASTER AND WHICH SHOWED THE NET WEIGHT OF YOUR HOUSEHOLD GOODS AS 11,005 POUNDS--- AS CONTROLLING IN YOUR CASE. WE ALSO STATED THAT THERE WAS NOTHING IN THE RECORD TO INDICATE THAT SUCH WEIGHT CERTIFICATE WAS IN ERROR AND, FURTHER, THAT THE FACT THAT THE GOODS WERE NOT REWEIGHED AFTER PICKUP FROM YOUR RESIDENCE IN RISING SUN, MARYLAND, DOES NOT NECESSARILY IMPLY THAT THE WEIGHT AS SHOWN ON THE WEIGHT CERTIFICATE IS IMPROPER. WITH REGARD TO THE CONTENTION, AS MADE IN YOUR LETTER OF MARCH 12, 1965, THAT UNDER THE PROVISIONS OF BUSANDA INSTRUCTION 4050.51, H-13, DATED AUGUST 22, 1963, THE NAVAL SUPPLY CENTER WAS REQUIRED TO REWEIGH THE SHIPMENT EVEN IF, AS THEY CONTENDED, THEY DID NOT RECEIVE YOUR LETTER OF SEPTEMBER 12, 1963, EXPRESSLY REQUESTING A REWEIGH OF YOUR GOODS, WE QUOTED THE FIRST 4 PARAGRAPHS OF THAT INSTRUCTION AND WE REASONED THAT SINCE THE INSTRUCTION WAS ISSUED ON AUGUST 22, 1963, WITH AN EFFECTIVE DATE OF OCTOBER 1, 1963, IT WAS CLEAR THAT ON JULY 23, 1963, WHEN YOUR HOUSEHOLD GOODS WERE PICKED UP AT RISING SUN THERE WAS NO REGULATION OR INSTRUCTION REQUIRING THE TRANSPORTATION OFFICER AT ORIGIN (BAINBRIDGE) TO REQUEST A REWEIGH OF THE SHIPMENT EVEN THOUGH THE WEIGHT CERTIFICATE REVEALED A WEIGHT IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE. FOR THAT REASON AND BECAUSE YOUR HOUSEHOLD GOODS ARRIVED AT DESTINATION AND WERE PLACED IN STORAGE (STORAGE IN TRANSIT) IN SAN DIEGO ON AUGUST 12, 1963, ALSO A DATE PRIOR TO THE ISSUANCE OF THE INSTRUCTION, WE CONCLUDED THAT SUCH INSTRUCTION DID NOT COVER YOUR CASE AND THAT NO REQUIREMENT EXISTED THEREUNDER ON THE PART OF THE HOUSEHOLD GOODS TRANSPORTATION OFFICER AT ORIGIN OR DESTINATION TO REWEIGH YOUR HOUSEHOLD GOODS.

YOU SUGGEST NOW, HOWEVER, THAT SINCE YOUR HOUSEHOLD GOODS WERE DELIVERED ON OCTOBER 10, 1963, A DATE "AFTER" THE EFFECTIVE DATE OF THE INSTRUCTION (OCTOBER 1, 1963), THIS INSTRUCTION WAS IN EFFECT AT THE TIME OF THE SHIPMENT OF YOUR HOUSEHOLD GOODS AND THAT THE WEIGHT THEREOF SHOULD HAVE BEEN VERIFIED. ALSO, YOU SAY THAT YOU DO NOT ACCEPT THE ALLEGATION BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CONCERNING THE NONRECEIPT OF YOUR LETTER OF SEPTEMBER 12, 1963, AND CONTEND, THEREFORE, THAT THEY "SIMPLY NEGLECTED" TO COMPLY WITH YOUR REQUEST.

PARAGRAPH M8007 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE COSTS INVOLVED IN THE SHIPMENT OF EXCESS WEIGHT OF HOUSEHOLD EFFECTS SHALL BE BORNE BY THE MEMBER. THE QUESTION OF WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS, AND THE EXCESS COSTS INVOLVED, ARE CONSIDERED TO BE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION, AND WE ARE WITHOUT AUTHORITY TO QUESTION AN ADMINISTRATIVE DETERMINATION IN THAT REGARD IN THE ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR.

ON THE BASIS OF A WEIGHT TICKET SIGNED BY A PUBLIC WEIGHMASTER SHOWING THE NET WEIGHT OF YOUR GOODS TO HAVE BEEN 11,005 POUNDS WHEN SHIPPED, THE NAVY DETERMINED THE COSTS INVOLVED FOR THE EXCESS WEIGHT SHIPPED. WHILE AS INDICATED IN THE DECISION OF JUNE 8, 1965, WE DO NOT CONSIDER THE REGULATIONS THEREIN DISCUSSED TO HAVE REQUIRED THE REWEIGHING OF YOUR GOODS WHEN THE SHIPMENT IN QUESTION WAS MADE, IT IS APPARENT, INASMUCH AS YOUR GOODS WERE NOT IN FACT REWEIGHED, AND IN THE ABSENCE OF OTHER EVIDENCE TO ESTABLISH THAT THE WEIGHT SHOWN ON THE WEIGHT TICKET SIGNED BY THE PUBLIC WEIGHMASTER WAS CLEARLY INCORRECT, THAT THERE EXISTS NO BASIS UPON WHICH ANY PART OF THE AMOUNT COLLECTED FROM YOU AS EXCESS COST MIGHT BE REFUNDED REGARDLESS OF WHETHER OR NOT THERE EXISTED AN ADMINISTRATIVE RESPONSIBILITY TO REWEIGH THE GOODS AS YOU CONTEND, IT BEING WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 COMP. GEN. 221.

IN VIEW OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO ADHERE TO OUR DECISION OF JUNE 8, 1965, AND, ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN ON YOUR CLAIM.

WITH REFERENCE TO YOUR REQUEST FOR AN APPEAL FROM OUR DECISION, YOU ARE ADVISED THAT THE DECISIONS OF THE COMPTROLLER GENERAL ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 71, 74. HOWEVER, THE UNITED STATES COURT OF CLAIMS HAS JURISDICTION TO CONSIDER CLAIMS AGAINST THE GOVERNMENT IF ACTION IS FILED IN THAT COURT WITHIN 6 YEARS FOLLOWING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.