B-131027, JUN. 6, 1957

B-131027, JUN. 6, 1957

TO MALONE FREIGHT LINES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1957, REQUESTING RECONSIDERATION OF OUR DECISION OF APRIL 12, 1957, WHICH SUSTAINED THE AUDIT ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN STATING AN OVERPAYMENT IN THE SUM OF $90.90 MADE ON YOUR BILL NO. US-1111 FOR FREIGHT TRANSPORTATION FURNISHED FROM HOUSTON, TEXAS, TO HUNTSVILLE, ALABAMA, UNDER GOVERNMENT BILL OF LADING NO. WV-7304391, IN MARCH 1945.

FOR THE INVOLVED SERVICES, YOU CLAIMED AND WERE PAID $737.30, PREDICATED ON A THROUGH RATE, AND IN THE AUDIT OF THE CHARGES PAID, OUR TRANSPORTATION DIVISION DETERMINED THAT THE APPLICABLE CHARGES WERE $646.40, COMPUTED ON THE BASIS OF THE AGGREGATE OF INTERMEDIATE RATES OVER MEMPHIS, TENNESSEE, THE JUNCTION POINT INVOLVED.

IN YOUR SUBMISSION YOU ASSERT THAT OUR OFFICE HAS NO AUTHORITY TO DETERMINE THE JUSTNESS AND REASONABLENESS OR UNJUSTNESS OR UNREASONABLENESS OF THE RATE IN QUESTION OR ANY OTHER LAWFULLY PUBLISHED RATE; THAT DETERMINATION OF WHETHER A RATE IS JUST AND REASONABLE IS WITHIN THE EXCLUSIVE INITIAL JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION; THAT THE CLAIM INVOLVED IS FOR REPARATION; AND THAT WE HAVE NO AUTHORITY TO AWARD THE GOVERNMENT REPARATION ON THE BASIS OF SELF-SERVING STATEMENTS AND DETERMINATIONS. HOWEVER, OUR DECISION SPECIFICALLY SET FORTH THAT OUR OFFICE DOES NOT MAKE DETERMINATIONS AS TO THE REASONABLENESS OR UNREASONABLENESS OF TARIFF RATES, BUT THAT WE DO DETERMINE WHETHER THE FACTS AND CIRCUMSTANCES IN CONNECTION WITH A GIVEN CLAIM SHOW THAT THE CLAIM IS BASED ON A RATE APPLIED UNDER CIRCUMSTANCES WHERE SIMILAR RATES IN SIMILAR CIRCUMSTANCES HAVE BEEN DECLARED BY THE INTERSTATE COMMERCE COMMISSION TO BE PRIMA FACIE UNREASONABLE. IT WAS ALSO SET FORTH THAT TO SANCTION THE AVAILABILITY OF PUBLIC FUNDS FOR THE PAYMENT OF CHARGES CLAIMED IN SUCH SITUATIONS WOULD VIOLATE THE DUTY IMPOSED BY LAW UPON OUR OFFICE TO CONSIDER, IN THE SETTLEMENT OF CLAIMS, SUBSTANTIVE DEFENSES IN LAW.

OUR DECISION STATED THAT IN THE PRESENT CASE IT IS OUR DUTY TO DECIDE WHETHER APPROPRIATED FUNDS ARE PROPERLY AVAILABLE FOR THE PAYMENT OF CHARGES ON THE BASIS OF A THROUGH RATE WHEN WE KNOW THAT IN PROCEEDINGS BEFORE THE INTERSTATE COMMERCE COMMISSION INVOLVING A SIMILAR SITUATION SUCH A RATE HAS BEEN FOUND PRESUMPTIVELY UNREASONABLE TO THE EXTENT THAT IT EXCEEDS THE AGGREGATE OF INTERMEDIATE RATES. WE CITED VARIOUS CASES IN SUPPORT OF OUR POSITION AND POINTED OUT THAT IN ANY CASE INVOLVING CLAIMS OF DOUBTFUL VALIDITY THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE REQUIRED TO RESOLVE THE DOUBT IN FAVOR OF THE GOVERNMENT. LONGWILL AND JOHNSON'S CASES, 17 C.CLS. 288, 291, AND CHARLES V. UNITED STATES, 19 C.CLS. 316, 319.

AS WE PREVIOUSLY NOTED IN THE INSTANT MATTER, THERE APPEARS NOT MERELY A DOUBT AS TO THE VALIDITY OF THE CHARGES CLAIMED, BUT RATHER A PRESUMPTION OF PARTIAL INVALIDITY ARISING FROM THE PRIMA FACIE UNREASONABLENESS OF THE RATE EMPLOYED AS A BASIS FOR THE CLAIM, AND WE WOULD NOT BE JUSTIFIED IN HOLDING APPROPRIATED FUNDS TO BE AVAILABLE FOR THE PAYMENT OF THE TOTAL CHARGES CLAIMED IN THE FIRST INSTANCE.

IN YOUR SUBMISSION YOU REFER TO VARIOUS COURT CASES IN SUPPORT OF YOUR REQUEST THAT WE WITHDRAW OUR CLAIM. HOWEVER, NONE OF THESE AUTHORITIES, INCLUDING THE WESTERN PACIFIC CASE (PARTICULARLY EMPHASIZED), AFFORDS ANY AUTHORITY FOR A DIFFERENT CONCLUSION FROM THAT REACHED IN OUR DECISION OF APRIL 12, 1957. ACCORDINGLY, THAT CONCLUSION IS REAFFIRMED. THE OVERPAYMENT OF $90.90 ($737.30 LESS $646.40) SHOULD BE PROMPTLY REFUNDED; OTHERWISE, ADJUSTMENT WILL BE ACCOMPLISHED BY OTHER APPROPRIATE MEANS.