B-137638, NOV 20, 1958

B-137638, NOV 20, 1958

PRECIS-UNAVAILABLE

MR. LELAND S. HAMILTON:

YOUR LETTER OF SEPTEMBER 29, 1958, REQUESTS THAT WE RECONSIDER YOUR CLAIM FOR REFUND OF THE $150.93, DESCRIBED BELOW, AND THAT OUR RECONSIDERATION BE UPON THE BASIS OF CERTAIN POINTS YOU MAKE CONCERNING THE PROVISIONS OF SUBSECTION 17(A) OF EXECUTIVE ORDER NO. 9805 AND CONCERNING WHO IS RESPONSIBLE FOR "ADEQUATE PACKING WITHIN WEIGHT LIMITS" THEREOF.

THE AMOUNT OF $150.93 REPRESENTS THE COSTS COLLECTED FROM YOU BY THE AIR FORCE BECAUSE OF THE EXCESS GROSS WEIGHT OF YOUR HOUSEHOLD GOODS SHIPPED ON GOVERNMENT BILLS OF LADING INCIDENT TO THE CHANGE OF YOUR OFFICIAL STATION FROM WILLIAMS AIR FORCE BASE,CHANDLER, ARIZONA, TO CHATEAUROUX, FRANCE, UNDER TRAVEL ORDER NO. D-FRANCE-C-317 DATED OCTOBER 31, 1955.

YOUR CLAIM WAS DISALLOWED IN OUR SETTLEMENT OF SEPTEMBER 15, 1958, FOR THE REASON THAT SECTION 1 AND 7 OF PUBLIC LAW 600, 60 STAT. 806, 805, AND EXECUTIVE ORDERS NOS. 9778 AND 9805, CITED IN THE SETTLEMENT, DO NOT ESTABLISH A MAXIMUM ALLOWANCE FOR THE WEIGHT OF THE MATERIALS USED IN THE PACKING AND CRATING OF A SHIPMENT OF HOUSEHOLD GOODS AND PERSONAL EFFECTS. IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY, WE MUST ASSUME IN YOUR CASE THAT THE PACKING AND CRATING WAS DONE BY PERSONS EXPERIENCED IN THE SHIPMENT OF HOUSEHOLD GOODS, AND THAT THE TYPE OF MATERIALS USED WERE NECESSARY IN ORDER TO PROTECT YOUR GOODS FROM DAMAGE WHILE BEING TRANSPORTED OVERSEAS. ALSO, AS A MATTER OF LAW, THE MOVEMENT OF A CIVILIAN EMPLOYEE'S HOUSEHOLD GOODS AND PERSONAL EFFECTS IS NOT A GOVERNMENTAL FUNCTION. WHEN AN AGENCY OF THE GOVERNMENT THROUGH ITS REPRESENTATIVES UNDERTAKES TO PACK, CRATE, AND SHIP HOUSEHOLD GOODS AND PERSONAL EFFECTS ON BEHALF OF AN EMPLOYEE, IT DOES SO ONLY AS AN AGENT OF THE EMPLOYEE. MOREOVER, ONLY THE EMPLOYEE CAN DETERMINE WHICH ARTICLES OF HIS HOUSEHOLD GOODS AND EFFECTS HE DESIRES TO BE TRANSPORTED. WE BELIEVE YOU WILL RECOGNIZE THAT MANY ARTICLES IN THE USUAL HOUSEHOLD ARE OF A FRAGILE NATURE AND ARE DIFFICULT TO PACK AND CRATE SECURELY SO THAT NO DAMAGE WOULD RESULT FROM WEATHER CONDITIONS OR THROUGH REPEATED HANDLING AND HAULAGE DURING AN EXTENDED JOURNEY, SUCH AS FROM ARIZONA TO FRANCE.

WHILE YOUR GOODS MAY HAVE BEEN PACKED AND CRATED MORE SECURELY THAN YOU PERSONALLY WOULD HAVE PACKED THEM, THE APPLICABLE LAW SPECIFIES A MAXIMUM GROSS WEIGHT OF 8,750 POUNDS WHICH MAY BE SHIPPED AT GOVERNMENT EXPENSE. ALTHOUGH SUBSECTION 17(A) OF THE REGULATIONS CONTAINS PROVISIONS WHICH COULD BE VIEWED AS SAYING THAT THE WEIGHT OF THE PACKING AND CRATING MATERIALS NORMALLY SHOULD NOT EXCEED 20 PERCENT OF THE GROSS WEIGHT, WE CAN CONCLUDE ONLY THAT SUCH STATUTORY REGULATIONS DO NOT AND COULD NOT PROPERLY AUTHORIZE ALLOWANCE AT GOVERNMENT EXPENSE OF AN AMOUNT OF PACKED AND CRATED PROPERTY OF AN EMPLOYEE GREATER THAN THE STATUTORY GROSS WEIGHT.

IN LIGHT OF THE ABOVE SPECIFIC STATUTORY LIMITATION, WE HAVE NO ALTERNATIVE OTHER THAN TO DENY PAYMENT OF YOUR CLAIM FOR THE REFUND OF $150.93. THE SETTLEMENT OF SEPTEMBER 15, 1958, THEREFORE, IS SUSTAINED.

REGARDING YOUR REQUEST TO BE ADVISED OF THE "NEXT HIGHEST AUTHORITY WHO CAN ACCEPT MY CLAIM FOR CONSIDERATION," SECTION 71, TITLE 31, U. S. CODE, PROVIDES IN PART THAT ALL CLAIMS AND DEMANDS WHATEVER AGAINST THE GOVERMENT SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE. OUR ACTION UPON CLAIMS SUCH AS YOURS IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, YOU ARE PRIVILEGED TO FILE SUIT IN THE COURT OF CLAIMS UNDER 28 U.S.C. 1491, IF YOU SO DESIRE.