B-122268, NOV. 4, 1964

B-122268: Nov 4, 1964

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WAS ABOLISHED. YOU WERE ELIGIBLE FOR HOME LEAVE AND REASSIGNMENT AT THE TIME. YOU WERE AUTHORIZED TO TRAVEL FROM STUTTGART TO WASHINGTON FOR HOME LEAVE WITH THREE DAYS CONSULTATION IN WASHINGTON DURING LEAVE. THE ORDER WAS AMENDED ON JANUARY 16 TO CORRECTLY SHOW YOUR PLACE OF RESIDENCE AS MIAMI. SEVERAL FURTHER AMENDMENTS TO THE ORDER WERE MADE WHICH. AT WHICH TIME YOU WERE SEPARATED FROM SERVICE AND YOU AND YOUR FAMILY WERE AUTHORIZED TO TRAVEL TO MIAMI. AT NO EXPENSE TO YOU ALSO WAS AUTHORIZED FROM THAT POINT TO MIAMI. THE STUTTGART CONSULATE GENERAL INFORMED YOU THE EFFECTS WOULD HAVE TO LEAVE THERE BY SEPTEMBER 26. YOU ALSO SAY THAT UPON RECEIPT OF SUCH REQUEST FOR INSTRUCTIONS YOU CONTACTED THE PERSONNEL OFFICE IN THE DEPARTMENT OF STATE IN WASHINGTON AND A MEMORANDUM WAS PREPARED TO THE FOREIGN POST ADVISING OF YOUR REQUEST THAT THE PERIOD DURING WHICH YOU WERE AUTHORIZED TO SHIP THE EFFECTS BE EXTENDED 90 DAYS SINCE YOU WERE BEING CONSIDERED FOR AN ASSIGNMENT WITH THE UNITED STATES INFORMATION AGENCY.

B-122268, NOV. 4, 1964

TO MR. PAUL A. NEULAND:

ON SEPTEMBER 29, 1964, YOU REQUESTED REVIEW OF SETTLEMENT DATED JANUARY 8, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR STORAGE OF YOUR HOUSEHOLD EFFECTS FROM OCTOBER 27, 1953 TO JULY 27, 1954, FOLLOWING YOUR SEPARATION ON JUNE 30, 1953, FROM YOUR POSITION OF FOREIGN SERVICE OFFICER, DEPARTMENT OF STATE.

IT APPEARS THAT ON DECEMBER 31, 1952, YOUR POSITION IN THE AMERICAN CONSULATE AT STUTTGART, GERMANY, WAS ABOLISHED. YOU WERE ELIGIBLE FOR HOME LEAVE AND REASSIGNMENT AT THE TIME. ACCORDINGLY, BY ORDER OF JANUARY 5, 1953, YOU WERE AUTHORIZED TO TRAVEL FROM STUTTGART TO WASHINGTON FOR HOME LEAVE WITH THREE DAYS CONSULTATION IN WASHINGTON DURING LEAVE. THE ORDER WAS AMENDED ON JANUARY 16 TO CORRECTLY SHOW YOUR PLACE OF RESIDENCE AS MIAMI, FLORIDA, AND THUS ENABLE YOU TO TRAVEL FROM WASHINGTON TO MIAMI TO AVAIL YOURSELF OF THE LEAVE. SEVERAL FURTHER AMENDMENTS TO THE ORDER WERE MADE WHICH, SO FAR AS PERTINENT HERE, AUTHORIZED YOU TO REMAIN ON CONSULTATION IN WASHINGTON UNTIL JUNE 30, 1953, AT WHICH TIME YOU WERE SEPARATED FROM SERVICE AND YOU AND YOUR FAMILY WERE AUTHORIZED TO TRAVEL TO MIAMI. TRANSPORTATION OF YOUR EFFECTS WHICH HAD BEEN STORED IN STUTTGART, GERMANY, AT NO EXPENSE TO YOU ALSO WAS AUTHORIZED FROM THAT POINT TO MIAMI.

BY WIRELESS OPERATIONS MEMORANDUM OF JULY 2, 1953, THE DEPARTMENT OF STATE NOTIFIED THE FOREIGN OFFICE (HICOG-BONN) OF YOUR SEPARATION FROM SERVICE ON JUNE 30, 1953, AND DIRECTED THAT YOUR EFFECTS BE HELD PENDING YOUR SHIPPING INSTRUCTIONS. APPARENTLY YOU GAVE NO INSTRUCTIONS FOR YOU SAY THAT SOME TWO MONTHS LATER OR BY LETTER OF SEPTEMBER 4, 1953, THE STUTTGART CONSULATE GENERAL INFORMED YOU THE EFFECTS WOULD HAVE TO LEAVE THERE BY SEPTEMBER 26, 1953, AND REQUESTED THAT YOU WIRE INSTRUCTIONS AS TO WHERE TO SEND THEM. YOU ALSO SAY THAT UPON RECEIPT OF SUCH REQUEST FOR INSTRUCTIONS YOU CONTACTED THE PERSONNEL OFFICE IN THE DEPARTMENT OF STATE IN WASHINGTON AND A MEMORANDUM WAS PREPARED TO THE FOREIGN POST ADVISING OF YOUR REQUEST THAT THE PERIOD DURING WHICH YOU WERE AUTHORIZED TO SHIP THE EFFECTS BE EXTENDED 90 DAYS SINCE YOU WERE BEING CONSIDERED FOR AN ASSIGNMENT WITH THE UNITED STATES INFORMATION AGENCY. AT OR ABOUT THE SAME TIME THE ORDER AGAIN WAS AMENDED TO EXTEND THE PERIOD TO DECEMBER 25, 1953. IN THIS CONNECTION IT IS OBSERVED THAT FURTHER AMENDMENTS WERE MADE UNTIL THE PERIOD EVENTUALLY WAS EXTENDED TO JUNE 30, 1954, OR ONE YEAR FOLLOWING YOUR SEPARATION FROM SERVICE. HOWEVER, THE DEPARTMENT'S OBLIGATION WAS FULFILLED IN PROVIDING AUTHORITY FOR SHIPMENT AT GOVERNMENT EXPENSE WHICH WAS CONTAINED IN THE AMENDMENT OF JUNE 30, 1953. THEREAFTER THE RESPONSIBILITY FOR PROVIDING SHIPPING INSTRUCTIONS WAS YOURS AND ANY EXTENSIONS OF TIME OR OTHER EFFORTS BY THE OFFICIALS OF THE AGENCY WERE MADE FOR YOUR BENEFIT AND CANNOT SERVE TO INCREASE THE LIABILITY OF THE GOVERNMENT IN THE MATTER OR TO CONVEY ANY RIGHTS NOT AUTHORIZED BY LAW AND IMPLEMENTING REGULATIONS.

DUE TO THE DELAY IN RECEIVING THE MEMORANDUM WHICH YOU SAY WAS PREPARED ON SEPTEMBER 17, 1953, AND TO OTHER UNEXPLAINED REASONS A PORTION OF YOUR EFFECTS WERE NOT HELD AS YOU REQUESTED AND UPON ARRIVAL THEREOF IN NEW YORK CITY IN OCTOBER 1953, WERE PLACED IN COMMERCIAL STORAGE AT YOUR EXPENSE AND PRESUMABLY AT YOUR REQUEST. THIS WAS SOME FOUR MONTHS FOLLOWING YOUR SEPARATION FROM SERVICE, AND FOR REASONS WHICH ARE NOT APPARENT YOU PERMITTED THE EFFECTS TO REMAIN IN SUCH COMMERCIAL STORAGE FOR AN ADDITIONAL NINE-MONTH PERIOD FOR WHICH YOU CLAIM REIMBURSEMENT IN THE SUM OF $436.23.

THE DEPARTMENT OF STATE HAS DISAPPROVED YOUR CLAIM CALLING ATTENTION TO THE FACT THAT PRIOR TO THE ENACTMENT OF PUB.L. 86-707, EFFECTIVE SEPTEMBER 6, 1960 (74 STAT. 796, 5 U.S.C. 3039), IT WAS WITHOUT AUTHORITY TO PAY STORAGE CHARGES IN CONNECTION WITH AN EMPLOYEE'S SEPARATION FROM SERVICE. IN THIS CONNECTION SEE PARAGRAPH 2, PAGE 20, REPORT 902 OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON POST OFFICE AND CIVIL SERVICE SUBMITTED TO ACCOMPANY H.R. 7758 WHICH BECAME PUB.L. 86-707. THE ACT PROVIDED FOR STORAGE FOR A PERIOD NOT TO EXCEED THREE MONTHS AND WAS NOT MADE RETROACTIVELY EFFECTIVE.

IN OUR SETTLEMENT OF JANUARY 8, 1964, IT WAS STATED THAT THERE WAS NO APPLICABLE LAW OR REGULATION IN EFFECT AT THE TIME THE EFFECTS WERE STORED UNDER WHICH REIMBURSEMENT OF THE CHARGES THEREFOR WAS AUTHORIZED. IN YOUR PRESENT LETTER YOU INDICATE AN AWARENESS THAT STORAGE AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED BUT YOU FEEL THAT THE EXPENSE IN QUESTION WAS INCURRED AS THE RESULT OF NEGLIGENCE OF THE OFFICIALS OF THE AGENCY AND THAT THE GOVERNMENT SHOULD ASSUME RESPONSIBILITY THEREFOR.

WE ARE NOT AWARE OF ANY LAW OR REGULATION UNDER WHICH THE GOVERNMENT WAS REQUIRED TO FURNISH YOU CONTINUED FREE STORAGE FACILITIES UNDER THE CIRCUMSTANCES INVOLVED HERE, HENCE WE DO NOT VIEW THE AGENCY'S UNSUCCESSFUL EFFORT TO SO FAVOR YOU AS HAVING DEPRIVED YOU OF ANY RIGHT TO WHICH YOU WERE LEGALLY ENTITLED. FURTHERMORE, IT IS A WELL-ESTABLISHED RULE OF LAW THAT IN THE ABSENCE OF STATUTORY PROVISIONS PROVIDING OTHERWISE, THE GOVERNMENT IS NOT LIABLE FOR THE NONFEASANCE, MISFEASANCE OR NEGLIGENCE OF ITS OFFICERS AND EMPLOYEES. SEE GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573 AND CASES CITED THEREIN.

REGARDING YOUR STATEMENT THAT YOUR CLAIM "MERITS CONSIDERATION AS AN EMERGENCY, UNUSUAL, OR ADDITIONAL PAYMENT UNDER SECTION 2.25 OF VOLUME I, PART III, OF THE FOREIGN SERVICE GULATIONS,"THE PERTINENT PROVISION IN EFFECT AT THE TIME PROVIDED FOR PAYMENT" IF ALLOWABLE UNDER EXISTING AUTHORITY WHETHER OR NOT SPECIFICALLY PROVIDED FOR BY THESE REGULATIONS," AND AS STATED EARLIER HEREIN THERE WAS NO AUTHORITY AT THAT TIME FOR PAYMENT OF STORAGE CHARGES ON THE EFFECTS OF EMPLOYEES OF THE FOREIGN SERVICE AFTER THEIR SEPARATION FROM SERVICE.

UPON REVIEW, THE SETTLEMENT OF JANUARY 8, 1964, IS SUSTAINED.