B-154960 August 27, 1964

B-154960: Aug 27, 1964

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Farah was employed by the Department of the Air Force at Andrews Air Force Base. With which you are familiar. The Report of Survey recommendation was approved by an Official designated to act in such cases by the Secretary of the Air Force. The appeal was denied upon a finding that Mr. Farah's negligence was the cause of the fire and damage. It is the position of our office that inasmuch as Mr. Farah's liability was determined pursuant to 10 U.S.C. 9835. Such determination is final. The only course remaining for our Office is to carry out the law that places with us the responsibility for recovery of amounts found due to the United States. You question whether 10 U.S.C. 9835 is applicable to civilian employees of the Department of the Air Force and ask the procedures our Office would follow if Mr.

B-154960 August 27, 1964

The Honorable David N. Henderson House of Representatives

Dear Mr. Henderson:

By letter dated August 6, 1964, acknowledged August 11, you wrote to our Office concerning the indebtedness in the amount of $810.68 of Mr. Thomas Farah.

This indebtedness represents damage to a low bed trailer incurred as the result of a fire while Mr. Farah was employed by the Department of the Air Force at Andrews Air Force Base. An Air Force Report of Survey, with which you are familiar, recommended that Mr. Farah be held pecuniarily liable for the damage. On appeal, the Report of Survey recommendation was approved by an Official designated to act in such cases by the Secretary of the Air Force. The appeal was denied upon a finding that Mr. Farah's negligence was the cause of the fire and damage.

As pointed out in our letter to you of August 4, 1964, it is the position of our office that inasmuch as Mr. Farah's liability was determined pursuant to 10 U.S.C. 9835, and such determination is final, the only course remaining for our Office is to carry out the law that places with us the responsibility for recovery of amounts found due to the United States.

In your letter of August 6, you question whether 10 U.S.C. 9835 is applicable to civilian employees of the Department of the Air Force and ask the procedures our Office would follow if Mr. Farah refuses to make payment.

The law codified at 10 U.S.C. 9835 reads as follows:

"(a) Under such regulations as the Secretary of the Air Force may prescribe, any officer of the Air Force designated by him may act upon reports of surveys and vouchers pertaining to the loss, spoilage, unserviceability, unsuitability, or destruction of or damage to property of the United States under control of the Department of the Air Force."

"(b) Action taken under subsection (a) is final, except that action holding a person pecuniarily liable for loss, spoilage, destruction, or damage is not final until approved by the Secretary or an officer of the Air Force designated by him."

This language is based on the act of October 11, 1951, ch. 484, 65 Stat. 387, which in turn was based on an earlier Army statute, the act of October 30, 1941, ch. 465, 55 Stat. 758. 10 U.S.C. 4835.

The act of October 11, 1951, provided:

"That, under regulations prescribed by the Secretary of the Air Force, designated officers may take action upon reports of survey and all other vouchers pertaining to the loss, damage, spoilage, unserviceability, unsuitability, or destruction of property of the United States under the control of the Department of the Air Force, and the action taken by any such officer on those surveys or vouchers shall be final: Provided, That in any such case where a person or concern is held pecuniarily liable, the findings shall not be final until approved by the Secretary of the Air Force or by such officers as the Secretary may designate." (Underscoring added).

We have found nothing in the legislative histories of the acts of October 11, 1951, or October 30, 1941, which lends support to the proposition that the word "person" was intended to be limited to military personnel. Moreover, the use of the word "concern" in those statutes -- which was omitted in the codification of 10 U.S.C. 9835, because such word is covered by the definition of "person" in 1 U.S.C.1-- lends us to the conclusion that the statute is general in its application and applies to all parties found liable under 10 U.S.C. 9835. See also Air Force Manual 177-111, section 10202, and Air Force Regulation 67-10, paragraph 3, spelling out clearly that civilians in the Department of the Air Force are within the framework of the governing requirement.

As to the action our Office will take if Mr. Farah refuses to make payment, our established procedure is to affect collection by demand letter without resort to court action where possible. If Mr. Farah refuses to make payment and his financial position indicates that he could meet a court judgement, the matter will be referred to the Department of Justice with the recommendation that suit be commended.

In the present consideration, Mr. Farah has refused to allow deduction from his salary and attempts to obtain information regarding his financial status have not met with success. Therefore, until such time as Mr. Farah furnishes our office with a Standing of Financial Status, we will continue our collection efforts. If, upon receipt of a report of his financial status, we decide that he is financially capable of meeting a court judgement, the matter will be forwarded to the Department of Justice with our recommendation that suite be commenced.

If collection is not made by suit or by voluntary payment, the indebtedness will be carried as outstanding in our records. In the event that at a later date Mr. Farah brings an action against the United States, this amount will be reported to the Department of Justice as being available for setoff. Also, if not previously collected, this amount will be deducted from any pay or allowances due Mr. Farah upon his separation from Government service. See 33 Comp. Gen. 443.

We regret that a more favorable reply cannot be made to you regarding Mr. Farah's indebtedness. However, as set forth in the controlling statute, the decision of the Department of the Air Force in this matter is final and is not subject to review by our Office. In this circumstance, we must follow our established procedures on behalf of the United States.

Sincerely yours,

Joseph Campbell Comptroller General of the United States