B-151903, JUL. 11, 1963

B-151903: Jul 11, 1963

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IT APPEARS THAT THE DAMAGE WAS DONE AT 3:00 P.M. REPORTEDLY "WAS BEING USED TO SPOT TREES WITH GOOD QUANTITIES OF CATKINS IN A BIRCH SEED COLLECTION PROGRAM.'. TREE WAS CUT DOWN AND THE SCOPE WAS PLACED AGAINST THE BOTTOM OF THE STUMP. DROVE OVER AND DID CONSIDERABLE DAMAGE TO THE SPOTTING SCOPE WHICH WAS THE PERSONAL PROPERTY OF MR. THE CLAIM WAS CONSIDERED TO BE WITHIN THE PURVIEW OF THE FEDERAL TORT CLAIMS ACT. IT WAS CONSIDERED BY THE FIELD SOLICITOR THAT SUCH DAMAGE WAS THE RESULT OF NEGLIGENCE ON THE PART OF THE CLAIMANT. SMITH WAS NOT ENTITLED TO AN AWARD UNDER THE TERMS OF THE FEDERAL TORT CLAIMS ACT. SINCE THE GOVERNMENT WOULD NOT BE LIABLE FOR THIS DAMAGE IF IT WERE A PRIVATE PERSON.

B-151903, JUL. 11, 1963

TO THE SECRETARY OF THE INTERIOR:

BY LETTER DATED JUNE 21, 1963, THE ADMINISTRATIVE OFFICER, FISH AND WILDLIFE SERVICE, BUREAU OF SPORT FISHERIES AND WILDLIFE, REGION 6, JUNEAU, ALASKA, REFERRED TO OUR OFFICE FOR APPROPRIATE ACTION, PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, A CLAIM BY STEVEN R. SMITH, FOR DAMAGES TO A SPOTTING SCOPE IN THE AMOUNT OF $54.50.

IT APPEARS THAT THE DAMAGE WAS DONE AT 3:00 P.M. ON SEPTEMBER 27, 1962, AT A POINT APPROXIMATELY SEVEN MILES SOUTH OF SOLDOTNA, ALASKA. THE SCOPE, MOUNTED ON A GUN STOCK, REPORTEDLY "WAS BEING USED TO SPOT TREES WITH GOOD QUANTITIES OF CATKINS IN A BIRCH SEED COLLECTION PROGRAM.' TREE WAS CUT DOWN AND THE SCOPE WAS PLACED AGAINST THE BOTTOM OF THE STUMP. SMITH, A SEASONAL EMPLOYEE, THEN PROCEEDED TO LIMB THE TOP OF THE TREE WHILE REX E. WILLIAMS, ANOTHER SEASONAL BUREAU EMPLOYEE AND DRIVER OF A TRACTOR AND TRAILER, DROVE OVER AND DID CONSIDERABLE DAMAGE TO THE SPOTTING SCOPE WHICH WAS THE PERSONAL PROPERTY OF MR. SMITH.

THE CLAIM WAS CONSIDERED TO BE WITHIN THE PURVIEW OF THE FEDERAL TORT CLAIMS ACT, BUT IT WAS CONSIDERED BY THE FIELD SOLICITOR THAT SUCH DAMAGE WAS THE RESULT OF NEGLIGENCE ON THE PART OF THE CLAIMANT, AND, THEREFORE, MR. SMITH WAS NOT ENTITLED TO AN AWARD UNDER THE TERMS OF THE FEDERAL TORT CLAIMS ACT, SINCE THE GOVERNMENT WOULD NOT BE LIABLE FOR THIS DAMAGE IF IT WERE A PRIVATE PERSON. ACCORDINGLY, THE CLAIM WAS PRESENTED TO THIS OFFICE BY THE ADMINISTRATIVE OFFICER "HOPING THAT A SETTLEMENT MAY BE HAD THROUGH THE APPLICATION OF THE MERITORIOUS CLAIMS ACT, 31 U.S.C. .'

THE ACT OF APRIL 10, 1928, 31 U.S.C. 236, PROVIDES THAT:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

AS INDICATED ABOVE, THE PRESENT CLAIM IS WITHIN THE SETTLEMENT AUTHORITY OF THE DEPARTMENT OF THE INTERIOR UNDER THE TORT CLAIMS ACT. IT IS NOT, HOWEVER, A TYPE OF CLAIM WHICH COMES WITHIN THE SETTLEMENT JURISDICTION OF THE GENERAL ACCOUNTING OFFICE. WE HAVE TAKEN THE POSITION THAT THE PROVISIONS OF THE ACT OF APRIL 10, 1928, APPLY ONLY TO CLAIMS OVER WHICH WE HAVE SETTLEMENT JURISDICTION. 13 COMP. GEN. 406; B-149624, OCTOBER 10, 1962.

ACCORDINGLY, WE MUST DECLINE TO REPORT MR. SMITH'S CLAIM TO THE CONGRESS UNDER THAT ACT.