B-154149, JUN. 5, 1964

B-154149: Jun 5, 1964

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THE CHECK WAS ENDORSED AS FOLLOWS: "WALTER J. IT IS ALLEGED THAT SIMPSON NEGOTIATED THE CHECK AT A LOCAL MARKET IN CHATTANOOGA AND RETAINED THE PROCEEDS FOR HIS OWN USE. THE DEPARTMENT OF THE NAVY SUBMITTED THE MATTER OF YOUR CLAIM TO OUR OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT BECAUSE IT DETERMINED THAT SATISFACTION OF YOUR CLAIM BY PAYMENT FROM APPROPRIATED FUNDS OF THE NAVY WAS NOT APPROPRIATED. ORRELL WAS INDUCED TO ENDORSE THE CHECK BY A MEMBER OF THE UNITED STATES NAVY ACTING IN HIS OFFICIAL CAPACITY AND THAT THE MEMBER IMPROPERLY OBTAINED THE CHECK UNDER A FALSE PRETEXT. IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT IN THE ABSENCE OF A STATUTE SO PROVIDING. THE GOVERNMENT IS NOT RESPONSIBLE FOR THE NONFEASANCE.

B-154149, JUN. 5, 1964

TO MRS. MAJORIE V. ORRELL:

YOUR CLAIM FOR THE PROCEEDS OF CHECK NO. 52,922, DATED JULY 15, 1961, DRAWN ON THE TREASURER OF THE UNITED STATES TO THE ORDER OF WALTER J. ORRELL FOR $106 HAS BEEN REFERRED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236.

YOU ALLEGE THAT SUBSEQUENT TO THE DEATH OF YOUR SON WALTER J. ORRELL, UNITED STATES NAVY, DECEASED, ONE JOHN WESLEY SIMPSON, 6579857, HMC, USN, ACTING IN HIS OFFICIAL CAPACITY AS A REPRESENTATIVE OF THE UNITED STATES NAVY INDUCED JAMES M. ORRELL, FATHER OF THE DECEASED, TO ENDORSE THE CHECK IN THE NAME OF HIS SON. THE CHECK WAS ENDORSED AS FOLLOWS: "WALTER J. ORRELL BY JAMES M. ORRELL.' ALSO, YOU ALLEGE THAT SIMPSON IMPROPERLY OBTAINED THE CHECK ON THE PRETEXT OF FORWARDING IT FOR CANCELLATION BY THE GOVERNMENT AND FOR INCLUSION IN THE FINAL SETTLEMENT OF YOUR SON'S PAY ACCOUNT. HOWEVER, IT IS ALLEGED THAT SIMPSON NEGOTIATED THE CHECK AT A LOCAL MARKET IN CHATTANOOGA AND RETAINED THE PROCEEDS FOR HIS OWN USE.

THE DEPARTMENT OF THE NAVY SUBMITTED THE MATTER OF YOUR CLAIM TO OUR OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT BECAUSE IT DETERMINED THAT SATISFACTION OF YOUR CLAIM BY PAYMENT FROM APPROPRIATED FUNDS OF THE NAVY WAS NOT APPROPRIATED. THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, PROVIDES, IN EFFECT, THAT A CLAIM FILED IN OUR OFFICE WHICH MAY NOT BE PAID BY USE OF AN APPROPRIATION ACT BUT WHICH IN THE JUDGMENT OF THE COMPTROLLER GENERAL CONTAINS ELEMENTS OF LEGAL LIABILITY OR EQUITY DESERVING OF THE CONSIDERATION OF THE CONGRESS MAY BE SUBMITTED TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND RECOMMENDATIONS THEREON. ACCORDINGLY, IN ORDER THAT YOUR CLAIM MAY BE SUBMITTED TO THE CONGRESS FAVORABLY UNDER THIS ACT, OUR OFFICE MUST FIND IN THE CLAIM ELEMENTS OF (1) LEGAL LIABILITY, OR (2) EQUITY DESERVING THE CONSIDERATION OF THE CONGRESS.

REGARDING THE ALLEGATIONS THAT JAMES M. ORRELL WAS INDUCED TO ENDORSE THE CHECK BY A MEMBER OF THE UNITED STATES NAVY ACTING IN HIS OFFICIAL CAPACITY AND THAT THE MEMBER IMPROPERLY OBTAINED THE CHECK UNDER A FALSE PRETEXT, IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR THE NONFEASANCE, MISFEASANCE, OR NEGLIGENCE OF ITS OFFICERS AND EMPLOYEES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. ALSO, SINCE THE RECORD SHOWS THAT YOU WERE PRESENT AT THE TIME THAT JAMES M. ORRELL ENDORSED THE CHECK AND GAVE IT TO SIMPSON, YOU APPARENTLY ACQUIESCED IN THE ACTIONS TAKEN BY JAMES M. ORRELL REGARDING THE CHECK. THE ENCASEMENT OF THE CHECK WAS MADE POSSIBLE BY SUCH ACTIONS. THEREFORE, IT IS OUR VIEW THAT YOUR CLAIM DOES NOT CONTAIN THE ELEMENTS OF LEGAL LIABILITY OR EQUITY CONTEMPLATED BY THE STATUTE SO AS TO WARRANT REPORTING THE MATTER FOR THE CONSIDERATION OF THE CONGRESS. WE TRUST YOU WILL UNDERSTAND THAT IT IS FOR SUCH REASONS AND NOT FROM ANY LACK OF SYMPATHY IN YOUR CASE THAT WE MAY NOT REPORT YOUR CLAIM TO THE CONGRESS FOR ITS CONSIDERATION.