B-134303, JAN. 15, 1958

B-134303, JAN. 15, 1958

TO ALOHA MOTORS, A DIVISION OF MURPHY MOTORS LIMITED:

REFERENCE IS MADE TO A LETTER IN YOUR BEHALF DATED OCTOBER 3, 1957, WITH ENCLOSURES, REGARDING THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $8,049.80 FOR RENTAL OF CERTAIN WAREHOUSING SPACE FROM THE DEPARTMENT OF THE NAVY AT THE HONOLULU INTERNATIONAL AIRPORT.

IT APPEARS THAT DURING THE 18-MONTH PERIOD IMMEDIATELY PRECEDING MAY 1, 1956, YOU RENTED FROM THE HAWAII AERONAUTICS COMMISSION CERTAIN WAREHOUSING SPACE IN HANGER BUILDING NO. 206 AT THE HONOLULU INTERNATIONAL AIRPORT. THE AGREEMENT COVERING THIS RENTAL PERIOD IS REPORTED TO HAVE CARRIED A "SCHEDULE OF FEES" FOR THE PREMISES OF $0.03 A SQUARE FOOT FOR THE AREA OCCUPIED ON THE FIRST FLOOR AND $0.008 A SQUARE FOOT FOR THE SECOND FLOOR. THE AMOUNT OF RENTAL PAID BY YOU WAS $298.04 A MONTH FOR THE 18-MONTH PERIOD INVOLVED. ON OR ABOUT MAY 1, 1956, THE DEPARTMENT OF THE NAVY RESUMED CONTROL OF HANGAR BUILDING NO. 206 AND IT APPEARS THAT YOU WERE ADVISED OF SUCH RESUMPTION OF CONTROL BY A COPY OF THE DEPARTMENT OF THE NAVY'S LETTER DATED MAY 1, 1956, TO THE HAWAII AERONAUTICS COMMISSION. BY A SUBSEQUENT LETTER DATED JULY 31, 1956, THE DEPARTMENT OF THE NAVY FURTHER ADVISED YOU THAT THE SAME "SCHEDULE OF FEES"--- $0.03 AND $0.008 A SQUARE FOOT FOR THE FIRST AND SECOND FLOORS, RESPECTIVELY--- THAT YOU HAD BEEN PAYING THE HAWAII AERONAUTICS COMMISSION WOULD CONTINUE TO APPLY FOR THE PERIOD FROM MAY 1 TO OCTOBER 31, 1956, THE TIME DESIGNATED AS THE "COST OUT" PERIOD FOR THE RENTAL OF THE PREMISES. IN ADDITION, YOU WERE ADVISED THAT, BASED UPON THE "SCHEDULE OF FEES" AND THE AMOUNT OF FLOOR SPACE FOUND TO BE OCCUPIED BY YOU IN HANGAR BUILDING NO. 206, A MONTHLY RENTAL OF $2,012.45 WAS FOUND TO BE PROPERLY DUE. YOU VACATED THE PREMISES IN AUGUST 1956 AND ON THE BASIS OF THE $2,012.45 MONTHLY RENTAL FEE THE DEPARTMENT OF THE NAVY CLAIMED RENTAL IN THE TOTAL AMOUNT OF $8,049.80 RETROACTIVE TO MAY 1, 1956. UPON YOUR REFUSAL TO PAY THE INCREASED FEE THE AMOUNT OF $8,049.80 WAS WITHHELD FROM AMOUNTS OTHERWISE PROPERLY DUE YOU. SUCH ACTION HAS RESULTED IN YOUR CLAIM FOR A FAIR AND MORE EQUITABLE ADJUSTMENT IN THE MATTER.

IN THE LETTER OF MOORE, TERKILDSON AND RICE DATED OCTOBER 3, 1957, THERE IS AGAIN REITERATED THE POSITION TAKEN BY THE ATTORNEYS AT ALL TIMES, THAT IS, THEY DO NOT DENY THAT SOME REASONABLE RENTAL IS DUE AND PAYABLE FOR THE TIME DURING WHICH OCCUPANCY CONTINUED AFTER THE DEPARTMENT OF THE NAVY RESUMED CONTROL OF THE PREMISES, BUT THEY TAKE THE POSITION THAT THE AMOUNT WITHHELD, AS BEING PROPERLY DUE, BY THE DEPARTMENT OF THE NAVY FOR THE WAREHOUSING SPACE IS EXCESSIVE, PARTICULARLY WITH RESPECT TO THE RETROACTIVE APPLICATION. ALSO, THE ATTORNEYS SEEK FURTHER ADVICE AND INFORMATION AS TO THE GOVERNMENTAL PROCEDURES WHICH THEY MAY FOLLOW IN YOUR BEHALF TO RESOLVE THE ENTIRE CLAIM WITH PARTICULAR INQUIRY AS TO WHETHER THEY NOW MUST INITIATE ACTION IN THE COURT OF CLAIMS OR ELSEWHERE.

WHILE NO SPECIFIC REQUEST FOR A REVIEW OF THE MATTER OR PARTICULAR CONTENTIONS ARE SET FORTH BY MOORE, TERKILDSON AND RICE IN THEIR LETTER OF OCTOBER 3, 1957, AS THE BASIS FOR SUCH A REVIEW, OUR OFFICE WILL CONSIDER HERE THE SAID LETTER AS AN APPEAL OF THE COLLECTION ACTION PREVIOUSLY TAKEN AND REVIEW THE LEGAL ASPECTS INVOLVED IN THE CASE. IN THIS REGARD, THERE ALSO WILL BE CONSIDERED THE FACTS SET FORTH IN THE LETTER OF THE ATTORNEYS DATED MARCH 15, 1957, TO THE PUBLIC WORKS OFFICE, FOURTEENTH NAVAL DISTRICT, AND THE LETTER DATED APRIL 12, 1957, TO THE DEPARTMENT OF THE NAVY.

THE FIRST PARAGRAPH OF THE DEPARTMENT OF THE NAVY LETTER DATED JULY 31, 1956, TO YOU, READS AS FOLLOWS:

"YOU WERE ADVISED THAT THE NAVY RESUMED CONTROL OF BUILDING 206 BY A COPY OF OUR LETTER TO THE HAWAII AERONAUTICS COMMISSION ON MAY 1, 1956.'

MOREOVER, THE RECORD APPEARS TO ESTABLISH THAT THE "SCHEDULE OF FEES" APPLICABLE TO THE RENTAL AGREEMENT WAS $0.03 A SQUARE FOOT AND $0.008 A SQUARE FOOT FOR THE FIRST AND SECOND FLOORS, RESPECTIVELY, OF HANGAR BUILDING NO. 206. HENCE, THERE MAY BE LITTLE, IF ANY, DOUBT THAT YOU WERE TIMELY APPRISED OF THE RESUMPTION OF CONTROL OF THE PREMISES BY THE DEPARTMENT OF THE NAVY AND THAT YOU HAD A FULL AND COMPLETE KNOWLEDGE OF THE "SCHEDULE OF FEES" THAT WAS IN EFFECT. THIS BEING THE CASE, AND SINCE IT IS REPORTED THAT PERIODIC INSPECTIONS OF A HANGAR BUILDING NO. 206 WERE MADE BY THE DEPARTMENT OF THE NAVY DURING THE PERIOD OF YOUR OCCUPANCY AFTER MAY 1, 1956, AND THAT SUCH INSPECTIONS SHOWED THAT THE ENTIRE FIRST AND SECOND FLOORS OF THE BUILDING, EXCLUDING ONLY A SMALL SPACE OCCUPIED BY THE JAPAN AIRLINE AND NON-USABLE BAY AREA SPACE, WERE OCCUPIED BY YOU IT MUST BE ACCEPTED BY OUR OFFICE THAT THE TOTAL AREA SQUARE FEET REPORTED BY THE DEPARTMENT OF THE NAVY AS BEING USED BY YOU, NAMELY, 54,781 SQUARE FEET ON THE FIRST FLOOR AND 46,128 SQUARE FEET ON THE SECOND FLOOR, ARE THE PROPER AREAS UPON WHICH YOUR RENTAL FEE WAS, AND SHOULD HAVE BEEN, COMPUTED. NEITHER YOU NOR THE ATTORNEYS IN YOUR BEHALF APPEAR TO CONTEST, IN THE SQUARE FOOTAGE REPORTED BY THE DEPARTMENT OF THE NAVY TO HAVE BEEN OCCUPIED BY YOU IN HANGAR BUILDING NO. 206, OR THE "SCHEDULE OF FEES, HERETOFORE REFERRED TO FOR THE FIRST AND SECOND FLOORS AS BEING THE APPLICABLE RENTAL RATE. RATHER, THE ENTIRE BASIS OF THE REQUEST FOR RELIEF IN THE MATTER SEEMS TO BE THAT, REGARDLESS OF THE APPLICABLE RENTAL RATE OR THE AMOUNT OF SPACE OCCUPIED, YOU WERE ASSESSED A MONTHLY RENTAL FEE OF $2,012.45 FOR THE SAME SPACE THAT YOU PREVIOUSLY HAD PAID ONLY $298.04 A MONTH TO THE HAWAII AERONAUTICS COMMISSION. IN THIS REGARD, THERE MAY NOT BE ACCEPTED AS CONTROLLING, THE FACT THAT YOU MAY HAVE NEVER PAID MORE THAN $298.04 A MONTH FOR THE SAME SPACE TO THE HAWAII AERONAUTICS COMMISSION FOR THE 18-MONTH PERIOD PRECEDING MAY 1, 1956, PARTICULARLY WHEN THE FACTS REPORTED IN THE CASE RAISE CONSIDERABLE DOUBT AS TO THE PROPRIETY OF THE TOTAL MONTHLY AMOUNT PAID FOR SUCH PERIOD.

IN VIEW OF THE FOREGOING, THE COLLECTION ACTION PREVIOUSLY TAKEN IN REGARD TO YOUR INDEBTEDNESS TO THE UNITED STATES OF $8,049.80 MUST BE SUSTAINED ON THE BASIS OF THE PRESENT RECORD.

REGARDING THE QUESTION OF MOORE, TERKILDSON AND RICE AS TO FURTHER GOVERNMENTAL PROCEDURES OR COURT ACTION IN THE MATTER, THIS IS TO ADVISE THAT THE DECISIONS OF OUR OFFICE ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THE LAW MAKES NO PROVISION FOR AN APPEAL THEREFROM. SEE SECTION 304 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24. HOWEVER, IF YOU HAVE ADDITIONAL FACTS OR EVIDENCE WHICH YOU FEEL WILL CONCLUSIVELY ESTABLISH THAT THE MONTHLY RENTAL RATE OF $2,012.45 WAS EXCESSIVE, OUR OFFICE WILL CONSIDER A FURTHER REVIEW OF THE COLLECTION ACTION PREVIOUSLY TAKEN, AS SUSTAINED HEREIN. SUCH ADDITIONAL MATERIAL NEED NOT BE FURNISHED TO OUR OFFICE ON ANY PARTICULAR FORMS. IN THE EVENT YOU DESIRE TO NOW SEEK THE ALTERNATIVE COURT ACTION, YOUR ATTENTION IS INVITED TO SECTION 24, AS AMENDED, AND SECTION 145 OF THE JUDICIAL CODE, TITLE 28, U.S. CODE, SECTIONS 1491 AND 1346, PERTAINING TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE COURT OF CLAIMS OF THE UNITED STATES.