B-157382, OCT. 19, 1965

B-157382, OCT. 19, 1965

TO TRAFFIC SERVICES INCORPORATED:

IN YOUR LETTER OF SEPTEMBER 7, 1965, YOU REQUEST THAT ACTION BY OUR OFFICE ON FOUR NOTICES OF OVERCHARGE DIRECTED TO GLOBAL VAN LINES, INC., BE HELD IN ABEYANCE UNTIL THE COURT OF CLAIMS DISPOSES OF CERTAIN QUESTIONS AS TO THE PROPER CHARGES APPLICABLE TO THE TRANSPORTATION SERVICES IN CONNECTION WITH WHICH THE STATEMENTS OF OVERCHARGE WERE ISSUED, SINCE THE SUBJECT SHIPMENTS ARE CURRENTLY INCLUDED IN A PETITION FILED WITH THE COURT IN GLOBAL VAN LINES, INC. V. UNITED STATES. CT.CL.NO. 259-65 (OUR FILE B-157382).

OUR PROCEDURES FOR THE AUDIT OF PAYMENTS MADE TO CARRIERS FOR TRANSPORTATION FURNISHED THE UNITED STATES AS PUBLISHED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS SEC. 53.1 AND 53.2 CONTEMPLATE THAT OUR TRANSPORTATION DIVISION WILL, UPON DISCOVERY OF AN OVERCHARGE, ISSUE A NOTICE OF OVERCHARGE (FORM 1003) NOTIFYING THE CARRIER AND REQUESTING REFUND OF THE AMOUNT OVERCHARGED. IF THE CARRIER DECLINES TO MAKE THE REFUND REQUESTED, AND THE TRANSPORTATION DIVISION CONSIDERS THE REASONS STATED IN THE PROTEST TO BE INADEQUATE TO SUPPORT THE AMOUNTS ORIGINALLY PAID, COLLECTION OF THE AMOUNTS CONSIDERED OVERCHARGED WILL BE MADE FROM FUNDS OTHERWISE DUE PURSUANT TO PUBLIC LAW 85-762 DATED AUGUST 26, 1958, 72 STAT. 859, 49 U.S.C. 66. AFTER SUCH DEDUCTIONS THE CARRIER MAY FILE A SUPPLEMENTAL BILL PURSUANT TO 4 C.F.R. 54.1 ET SEQ., TO RECLAIM ALL OR ANY PART OF THE AMOUNT DEDUCTED AND THE BILL WILL BE MADE THE SUBJECT OF A SETTLEMENT CERTIFICATE, EITHER ALLOWING THE CLAIM IN WHOLE OR IN PART, OR DISALLOWING THE CLAIM ENTIRELY. THEN IF THE CARRIER DOES NOT CONCUR WITH THE SETTLEMENT ACTION 4 C.F.R. 55.1 PROVIDES THAT THE DIRECTOR, TRANSPORTATION DIVISION, MAY BE REQUESTED TO RECONSIDER THE CLAIM. FINALLY, 4 C.F.R. 55.2 PROVIDES THAT THE CARRIER, IF STILL DISSATISFIED, MAY REQUEST THE COMPTROLLER GENERAL TO REVIEW THE FINAL ACTION OF THE TRANSPORTATION DIVISION.

IN THE PRESENT INSTANCE THE CARRIER'S BILLS FOR THE SERVICES RENDERED WERE PAID IN FULL UPON PRESENTATION. NO CLAIMS FOR ADDITIONAL AMOUNTS WERE FILED AND NO DEDUCTIONS HAVE BEEN MADE. HOWEVER, ON AUDIT IN OUR OFFICE, IT WAS CONSIDERED THAT OVERCHARGES WERE MADE AND YOU WERE NOTIFIED THEREOF BY OUR NOTICES OF OVERCHARGE, FORMS 1003, AND REQUESTED TO REFUND THE AMOUNTS CONSIDERED OVERCHARGED. INSTEAD OF FOLLOWING THE ADMINISTRATIVE PROCEDURE PROVIDED, THESE BILLS OF LADING WERE LISTED IN THE PETITION IN THE SUIT UPON RECEIPT OF THE NOTICES OF OVERCHARGE. THAT TIME THE CARRIER APPEARS TO HAVE BEEN PAID EVERY CENT IT HAD ASSERTED OR CLAIMED TO BE DUE. NO DEDUCTION HAD BEEN MADE BY OUR OFFICE. SPECIFIC AMOUNT IS CLAIMED IN THE PETITION FILED IN THE COURT OF CLAIMS ON THE FOUR BILLS OF LADING AS TO WHICH THE OVERCHARGE NOTICES REFERRED TO BY YOU WERE ISSUED; AND, THERE IS CONSIDERABLE DOUBT WHETHER THE COURT OF CLAIMS WHICH HAS JURISDICTION TO HEAR AND DETERMINE ONLY CAUSES OF ACTION FOR MONEYS CLAIMED DUE FROM THE UNITED STATES (UNITED STATES V. JONES, 131 U.S. 1, HELME CO. V. UNITED STATES, 23 FED.SUPP. 787, CERTIORARI DENIED 305 U.S. 645) WOULD HAVE JURISDICTION ON THE PETITION FILED AS TO THE INVOLVED FOUR SHIPMENTS IN ITS PRESENT FORM, SINCE IT DOES NOT APPEAR THE CARRIER, ON THE PRESENT RECORD, CLAIMS ADDITIONAL AMOUNTS ARE DUE TO THOSE IT HAS BEEN PAID. WE UNDERSTAND THE COMMISSIONERS OF THAT COURT TO WHICH THE COURT ACTION HAS BEEN ASSIGNED CLEARLY HAVE INDICATED THAT ON THE PRESENT RECORD THEY WILL INSIST ON THE PLAINTIFF'S FILING SCHEDULES SHOWING THE AMOUNTS ASSERTED TO BE DUE IN ACCORDANCE WITH APPENDIX B TO THE COURT'S RULES OF PROCEDURE. IF THE CARRIER HAS BEEN PAID ON THE FOUR SHIPMENTS EVERY AMOUNT CLAIMED BY IT AND NO ADDITIONAL AMOUNT IS ASSERTED TO BE DUE, IT WOULD APPEAR NO MONEYS ARE CLAIMED AS TO WHICH THE COURT COULD RENDER JUDGMENT. THUS, THE SUIT AS TO THE FOUR ITEMS MAY HAVE TO BE DISMISSED. ALSO, PUBLIC LAW 85-762 PROVIDES THAT THE RIGHT TO MAKE DEDUCTION MUST BE EXERCISED WITHIN THREE YEARS OF THE PAYMENT OF THE BILLS, AND IS NOT EXTENDED MERELY BECAUSE THE BILLS OF LADING MAY BE INCLUDED IN SUIT. FURTHERMORE, THE FACT THAT A SUIT MAY HAVE BEEN FILED DOES NOT NECESSARILY INDICATE A FINAL JUDICIAL DETERMINATION OF THE ISSUE WILL RESULT THEREFROM, SINCE SUCH SUITS ARE OFTEN DISCONTINUED, THE ITEMS DROPPED FROM THE SUIT AND THE LIKE. ACCORDINGLY, AND IN VIEW OF THE TIME LIMITATION IN THE ACT OF AUGUST 26, 1958, AND WHILE WE UNDERSTAND THAT ONE OF THE ISSUES TO BE DECIDED IN THE SUIT IS THE APPLICATION OF THAT STATUTE TO THE TYPE OF TRANSPORTATION AND CARRIER INVOLVED, WE WOULD NOT BE WARRANTED IN DELAYING OUR COLLECTION OF THESE ASSERTED OVERCHARGES PENDING A FINAL JUDICIAL DETERMINATION OF THE SUIT.