B-202683 L/M, DEC 9, 1981, OFFICE OF GENERAL COUNSEL

B-202683 L/M, DEC 9, 1981, OFFICE OF GENERAL COUNSEL

DIGEST: 1. THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, APPLIES TO ELECTED OFFICIALS OF THE UNITED STATES AS WELL AS CIVIL APPOINTED OFFICERS OR EMPLOYEES WHO WOULD OTHERWISE BE FORCED TO SEEK REDRESS IN CONGRESS TO RECOVER FOR LOSS OF OR DAMAGE TO PERSONAL PROPERTY INCURRED INCIDENT TO THEIR SERVICE. ACCORDINGLY, THE VICE PRESIDENT IS COVERED BY THIS ACT. 2. CLAIMS FOR LOST OR DAMAGED PROPERTY UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964 MAY BE CONSIDERED ONLY BY THE HEAD OF THE INVOLVED AGENCY OR A DESIGNEE. THE GENERAL ACCOUNTING OFFICE MAY NOT CONSIDER THESE CLAIMS. 3. LOAN OF PROPERTY FOR DISPLAY AT OFFICIAL RESIDENCE OF VICE PRESIDENT CREATES BAILMENT FOR MUTUAL BENEFIT. BAILEE (GOVERNMENT) MUST EXERCISE ORDINARY CARE TO PROTECT BAILED PROPERTY IN ITS POSSESSION. CLAIM FOR DAMAGED BAILED PROPERTY MAY BE SETTLED IN GENERAL ACCOUNTING OFFICE.

RAFAEL V. CAPO, ESQ., OFFICE OF THE VICE PRESIDENT OF THE UNITED STATES:

YOU HAVE ASKED WHETHER THE GENERAL ACCOUNTING OFFICE HAS AUTHORITY TO SETTLE CLAIMS RELATED TO THE LOSS OR DAMAGE OF THE PERSONAL PROPERTY OF THE OCCUPANTS OF THE OFFICIAL RESIDENCE OF THE VICE PRESIDENT. FOR THE REASONS INDICATED BELOW, THIS OFFICE HAS NO SUCH AUTHORITY. HOWEVER, THE VICE PRESIDENT MAY BE COMPENSATED FOR LOSS OF OR DAMAGE TO HIS OWN PERSONAL PROPERTY OCCURRING INCIDENT TO HIS SERVICE UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. ADDITIONALLY, THE VICE PRESIDENT AND OTHER OCCUPANTS OF THE OFFICIAL RESIDENCE OF THE VICE PRESIDENT MAY BE COMPENSATED FOR THE LOSS OF OR DAMAGE TO THEIR PERSONAL PROPERTY CAUSED BY THE NEGLIGENT ACTS OF AN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT.

SECTION 3(A) OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, PUB.L. NO. 88-558, 31 U.S.C. SEC. 241(B)(1), STATES IN PERTINENT PART:

"SUBJECT TO ANY POLICIES THE PRESIDENT MAY PRESCRIBE TO EFFECTUATE THE PURPOSES OF THIS SUBSECTION AND UNDER SUCH REGULATIONS AS THE HEAD OF AN AGENCY *** MAY PRESCRIBE, HE OR HIS DESIGNEE MAY SETTLE AND PAY A CLAIM ARISING AFTER AUGUST 31, 1964, AGAINST THE UNITED STATES FOR NOT MORE THAN $15,000 MADE *** BY A CIVILIAN OFFICER OR EMPLOYEE OF THAT AGENCY, FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE. IF THE CLAIM IS SUBSTANTIATED AND THE POSSESSION OF THAT PROPERTY IS DETERMINED TO BE REASONABLE, USEFUL, OR PROPER UNDER THE CIRCUMSTANCES, THE CLAIM MAY BE PAID OR THE PROPERTY REPLACED IN KIND. ***"

AS INDICATED IN THE LEGAL MEMORANDUM ACCOMPANYING YOUR SUBMISSION, THE ACT'S SCOPE IS LIMITED TO OFFICERS AND EMPLOYEES, FROM WHICH GROUP THE VICE PRESIDENT, AS AN ELECTED OFFICIAL, IS USUALLY EXCLUDED. SEE, E.G., 5 U.S.C. SEC. 2104, WHICH LIMITS THE DEFINITION OF OFFICERS TO APPOINTED OFFICERS IN THE CIVIL SERVICE. BUT SEE 5 U.S.C. SEC. 902(3), WHICH FOR THE PURPOSE OF EXECUTIVE REORGANIZATIONS DOES NOT LIMIT THE DEFINITION OF OFFICERS TO SUCH APPOINTED OFFICERS. WHILE THE MEMORANDUM'S ANALYSIS CONCERNING THE GENERAL RULE FOR NOT CHARACTERIZING THE VICE PRESIDENT AS AN OFFICER IS CORRECT, WE BELIEVE THAT THIS ACT IS ONE OF THE EXCEPTIONS TO THE GENERAL RULE AND THAT THE VICE PRESIDENT IS AN OFFICER WITHIN THE ACT'S SCOPE.

AS STATED IN ITS TITLE, THE PURPOSE OF THE ACT IS "TO PROVIDE FOR THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES BY *** CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO THEIR SERVICE, AND FOR OTHER PURPOSES." PUB.L. NO. 88-558, 78 STAT. 767 (1964). MOREOVER, THE SENATE REPORT ACCOMPANYING THE BILL WHICH BECAME THE ACT STATES THAT "*** THE ENACTMENT OF THE PROVISIONS *** WOULD EXTEND EQUIVALENT AUTHORITY TO ALL GOVERNMENT AGENCIES SO THAT ALL EMPLOYEES OF THE GOVERNMENT *** WOULD BE ENTITLED TO ASSERT SUCH CLAIMS. ***" S.REP. NO. 1423, 88TH CONG., 2D SESS. 2 (1964) (CITING H.R.REP. NO. 460, 88TH CONG. 2D SESS. 2 (1964)). THE SENATE REPORT ADDED THAT A PURPOSE OF THIS ACT WAS TO PROVIDE A MEANS OF RECOVERY FOR CIVILIAN OFFICERS AND EMPLOYEES SO THAT THEY WOULD NOT BE FORCED TO SEEK REDRESS IN CONGRESS IN THE FORM OF PRIVATE RELIEF BILLS. S.REP. NO, 1423, SUPRA, AT 6.

PREVIOUSLY, OUR OFFICE HAS CITED THE ABOVE LANGUAGE IN THE TITLE OF THE ACT, AS WELL AS THE EXCERPTS FROM THE LEGISLATIVE HISTORY, IN HOLDING THAT THE ACT APPLIES TO EMPLOYEES OF LEGISLATIVE AGENCIES, 44 COMP.GEN. 402 (1965), AND TO EMPLOYEES OF THE JUDICIAL BRANCH, B-155877, JUNE 22, 1971. WE REACHED THESE CONCLUSIONS DESPITE THE EXPRESS LANGUAGE IN SECTION 2(1) OF THE ACT WHICH STATES THAT THE TERM "AGENCY" AS DEFINED IN THE ACT ONLY INCLUDES AN "EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR CORPORATION PRIMARILY ACTING AS AN INSTRUMENTALITY OF THE UNITED STATES ***." 31 U.S.C. SEC. 240(1).

SIMILARLY, NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY INDICATES THAT CONGRESS INTENDED TO LIMIT COVERAGE OF THE ACT TO APPOINTED OFFICERS. INSTEAD, THE ACT AND THE LEGISLATIVE HISTORY INDICATE THAT CONGRESS INTENDED FOR THE ACT TO APPLY TO ALL EMPLOYEES AND OFFICERS OF THE UNITED STATES, INCLUDING ELECTED OFFICERS WHO WOULD OTHERWISE HAVE BEEN FORCED TO SEEK REDRESS IN THE CONGRESS TO RECOVER FOR ANY LOSS OF PROPERTY INCURRED INCIDENT TO THEIR SERVICE. SINCE THE VICE PRESIDENT, ABSENT THE APPLICABILITY OF THIS ACT, WOULD BE REQUIRED TO APPEAL TO CONGRESS FOR THE PAYMENT OF A CLAIM FOR THE LOSS OR DAMAGE OF HIS PERSONAL PROPERTY INCIDENT TO HIS SERVICE, THE VICE PRESIDENT IS COVERED BY THIS ACT.

REGARDING YOUR QUESTION CONCERNING THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS UNDER THIS ACT, SECTION 241(B)(1) OF TITLE 31 AUTHORIZES THE HEAD OF AN AGENCY OR HIS DESIGNEE TO SETTLE AND PAY CLAIMS BY EMPLOYEES OF THAT AGENCY FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO THEIR SERVICE. SECTION 242 OF TITLE 31 PROVIDES THAT "NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE SETTLEMENT OF A CLAIM UNDER SECTIONS 240-243 OF THIS TITLE IS FINAL AND CONCLUSIVE." IN VIEW OF THESE PROVISIONS, ANY CLAIMS MADE PURSUANT TO THE ACT MAY BE CONSIDERED ONLY BY THE HEAD OF THE INVOLVED AGENCY, OR HIS DESIGNEE, UNDER REGULATIONS PRESCRIBED BY THE AGENCY HEAD, AND SETTLEMENT THEREOF IS FINAL AND CONCLUSIVE. THE CONSIDERATION OF SUCH CLAIMS IS NOT WITHIN THE JURISDICTION OF THIS OFFICE. 47 COMP.GEN. 316 (1967); B-155877, JUNE 21, 1971.

THE VICE PRESIDENT, AS HEAD OF THE OFFICE OF THE VICE PRESIDENT, OR HIS DESIGNEE MAY CONSIDER CLAIMS BY EMPLOYEES OF THE OFFICE OF THE VICE PRESIDENT MADE PURSUANT TO THIS ACT. HOWEVER, IT WOULD CONSTITUTE A CONFLICT OF INTEREST FOR THE VICE PRESIDENT TO CONSIDER HIS OWN CLAIM. SUCH A CLAIM SHOULD BE CONSIDERED ONLY BY HIS DESIGNEE.

THUS, THE VICE PRESIDENT MAY BE COMPENSATED FOR THE LOSS OF OR DAMAGE TO HIS OWN PERSONAL PROPERTY INCIDENT TO HIS SERVICE UNDER THE TERMS AND PROCEDURES OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. FUNDS REQUIRED FOR THIS PURPOSE ARE PROPERLY CHARGEABLE TO THE APPROPRIATION AVAILABLE FOR EXPENSES OF THE OFFICE OF THE VICE PRESIDENT. DAMAGE OR LOSS TO PROPERTY BELONGING TO MEMBERS OF THE VICE PRESIDENT'S FAMILY, OR ANY OTHER OCCUPANTS OF THE OFFICIAL RESIDENCE, MAY NOT BE COMPENSATED UNDER THE TERMS OF THE ACT.

INSTEAD OF FILING A CLAIM UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, THE VICE PRESIDENT CAN FILE A CLAIM UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC. 2671-2680, FOR THE LOSS OR DAMAGE OF HIS PERSONAL PROPERTY IF SUCH LOSS OR DAMAGE IS CAUSED BY THE NEGLIGENCE OF AN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT. MOREOVER, THE OTHER OCCUPANTS OF THE OFFICIAL RESIDENCE OF THE VICE PRESIDENT CAN FILE A CLAIM UNDER THIS ACT.

AS IN THE CASE WITH THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, OUR OFFICE HAS NO AUTHORITY TO SETTLE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT. THE ACT CONFERS ON THE HEAD OF EACH FEDERAL AGENCY AUTHORITY TO "CONSIDER, ASCERTAIN, ADJUST, DETERMINE, COMPROMISE, AND SETTLE ANY CLAIM FOR MONEY DAMAGES AGAINST THE UNITED STATES" FOR THE LOSS OR DAMAGE OF PROPERTY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE OF THE AGENCY WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. 28 U.S.C. SEC. 2672. AS UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT, THE VICE PRESIDENT CANNOT CONSIDER HIS OWN CLAIMS MADE PURSUANT TO THIS ACT. SETTLEMENTS OF $2500 OR LESS MADE PURSUANT TO THIS ACT SHALL BE PAID BY THE HEAD OF THE FEDERAL AGENCY CONCERNED OUT OF APPROPRIATIONS AVAILABLE TO THAT AGENCY. 28 U.S.C. SEC. 2672. SETTLEMENTS IN EXCESS OF THIS AMOUNT ARE CHARGEABLE TO THE APPROPRIATION MADE BY 31 U.S.C. SEC. 724A. 49 COMP.GEN. 758 (1970).

YOU ALSO INQUIRED INFORMALLY CONCERNING THE AUTHORITY OF THIS OFFICE TO SETTLE CLAIMS ARISING FROM THE LOSS OR DAMAGE OF PROPERTY LOANED TO THE OFFICE OF THE VICE PRESIDENT FOR EXHIBIT IN THE RESIDENCE OF THE VICE PRESIDENT. SUCH A LOAN OF PROPERTY TO THE GOVERNMENT FOR EXHIBIT CREATES A BAILMENT FOR MUTUAL BENEFIT.

UNDER SUCH A RELATIONSHIP, THE BAILEE (GOVERNMENT) IS REQUIRED TO EXERCISE ORDINARY CARE TO PROTECT THE BAILED PROPERTY IN ITS POSSESSION. SEE 55 COMP.GEN. 356 (1975); 23 COMP.GEN. 907 (1944). THE GOVERNMENT WOULD THUS NOT BE LIABLE FOR LOSS OR DAMAGE TO THE BAILED PROPERTY ABSENT A SHOWING OF FAULT OR NEGLIGENCE BY AN OFFICER OR EMPLOYEE OF THE UNITED STATES. 23 COMP.GEN. 907, SUPRA. SHOULD THE PARTY LOANING THE PROPERTY BE ABLE TO ESTABLISH SUCH GOVERNMENT LIABILITY, THIS OFFICE COULD SETTLE THE CLAIM UNDER ITS CLAIM SETTLEMENT AUTHORITY IN 31 U.S.C. SEC. 71. ANY AWARD UNDER SUCH A SETTLEMENT WOULD BE CHARGEABLE TO THE APPROPRIATION AVAILABLE FOR THE EXPENSES OF THE OFFICE OF THE VICE PRESIDENT.

WE TRUST THIS SERVES THE PURPOSE OF YOUR INQUIRY.