B-177738, MAR 9, 1973

B-177738, MAR 9, 1973

CIVILIAN EMPLOYEE - INDEBTEDNESS TO U.S. - EXCESS SHIPMENT WEIGHT DECISION UPHOLDING THE INDEBTEDNESS TO THE UNITED STATES OF MADISON E. MITCHELL, AN EMPLOYEE OF THE NATIONAL SECURITY AGENCY, IN THE AMOUNT NEEDED TO REIMBURSE THE GOVERNMENT FOR ADDITIONAL CHARGES RESULTING FROM THE SHIPMENT OF GOODS IN EXCESS OF 7,000 POUNDS INCIDENT TO HIS PERMANENT CHANGE OF STATION FROM DACHAU, GERMANY TO FORT MEADE, MD. SINCE THE MAXIMUM WEIGHT ALLOWABLE AT THE TIME THESE GOODS WERE SHIPPED WAS 7,000 POUNDS, 5 U.S.C. 73B-1(A), AND SINCE THE EMPLOYEE AGREED TO THIS LIMITATION IN HIS APPLICATION FOR SHIPMENT, HE IS LIABLE FOR THE COST TO THE GOVERNMENT OF SHIPMENT OF THOSE GOODS IN EXCESS OF 7,000 POUNDS, NOTWITHSTANDING THE FACT THAT HE WAS MISINFORMED BY GOVERNMENT AGENTS AND THE CARRIER WITH REGARD TO HIS RIGHTS, BECAUSE THIS LIMITATION MAY NOT BE WAIVED BY A GOVERNMENT AGENCY OR OFFICIAL.

TO MR. GILBERT H. DAWSON:

THIS REFERS TO YOUR LETTER OF DECEMBER 27, 1972, SERIAL: N41/1443F, WITH ENCLOSURES, REQUESTING A DECISION FROM OUR OFFICE CONCERNING THE INDEBTEDNESS OF MR. MADISON E. MITCHELL, A CIVILIAN EMPLOYEE OF THE NATIONAL SECURITY AGENCY.

YOU SAY THAT YOU WERE REQUESTED BY LETTER DATED JANUARY 6, 1972, FROM THE CHIEF, TRANSPORTATION DIVISION, FCUSA TO COLLECT $94.35 FROM THE PAY OF MR. MITCHELL, A CIVILIAN EMPLOYEE OF THE NATIONAL SECURITY AGENCY. MR. MITCHELL IS PROTESTING THE INDEBTEDNESS AND REQUESTED YOUR AGENCY TO OBTAIN A DECISION FROM THE COMPTROLLER GENERAL CONCERNING THE VALIDITY OF THE INDEBTEDNESS. THE INFORMATION FURNISHED SHOWS THAT TRAVEL ORDER DATED APRIL 5, 1965, AUTHORIZED SHIPMENT OF MR. MITCHELL'S HOUSEHOLD GOODS NOT TO EXCEED 7,000 POUNDS FROM DACHAU, GERMANY, TO FORT GEORGE G. MEADE. MR. MITCHELL SHIPPED 7,370 POUNDS OF GOODS AND HE WAS REQUIRED TO REIMBURSE THE GOVERNMENT FOR CHARGES RESULTING FROM SHIPMENT OF THE GOODS IN EXCESS OF 7,000 POUNDS. MR. MITCHELL STATES THAT PLANS WERE MADE FOR HIM TO RETURN ON THE SS UNITED STATES AFTER TWO CONSECUTIVE TOURS OF DUTY IN GERMANY. BASED ON THIS MODE OF TRANSPORTATION, HE SAYS HE WAS ENTITLED TO AND PLANNED TO CARRY ABOARD APPROXIMATELY THE AMOUNT OF OVERAGE FOR HIS FAMILY. JUST PRIOR TO THE PACKING DATE THE DEPARTMENT OF DEFENSE CURTAILED COMMERCIAL SURFACE TRANSPORTATION DUE TO BUDGETARY RESTRICTIONS. PLANS WERE THEN CHANGED TO INCLUDE THIS LUGGAGE IN HIS HOUSEHOLD GOODS SHIPMENT AND HE AND HIS FAMILY RETURNED BY AIR TRANSPORTATION. PARAGRAPH C 6304-4 OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, PROVIDES THAT THE WEIGHT OF ANY UNACCOMPANIED BAGGAGE SHIPPED OR TRANSPORTED BY ANY MODE, AT GOVERNMENT EXPENSE, WILL BE CONSIDERED A PART OF THE HOUSEHOLD GOODS WEIGHT ALLOWANCE WHEN PERMANENT DUTY TRAVEL IS INVOLVED.

MR. MITCHELL STATES THAT ON THE DAY OF PACKING, WHEN THE SHIPMENT WAS WEIGHED THE CARRIER ADVISED HIM THAT THE WEIGHT WAS WITHIN THE WEIGHT LIMITATION STIPULATED BY THE UNITED STATES GOVERNMENT. MR. MITCHELL FURTHER STATES THAT IN VIEW OF THE CIRCUMSTANCES IF THERE ARE ANY CHARGES FOR SHIPMENT OF EXCESS WEIGHT OF HOUSEHOLD GOODS THE BURDEN SHOULD BE PLACED WITH THE SHIPPER TO MAKE REFUND AS THE SHIPPER WAS ACTING AS AN AGENT OF THE UNITED STATES GOVERNMENT.

AT THE TIME THE HOUSEHOLD GOODS WERE SHIPPED, AUTHORITY FOR TRANSPORTING HOUSEHOLD GOODS OF TRANSFERRED EMPLOYEES AT GOVERNMENT EXPENSE WAS FOUND IN 5 U.S.C. 73B-1(A), WHICH ALSO ESTABLISHED THE MAXIMUM WEIGHT OF THE GOODS TO BE TRANSPORTED AS 7,000 POUNDS. A SIMILAR WEIGHT LIMITATION WAS CONTAINED IN PARAGRAPH C 7052-2A OF JTR, PAGE 7-19, AND THE STATUTORY REGULATIONS FOUND IN OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, DATED APRIL 30, 1962, AS AMENDED. THE MAXIMUM WEIGHT WHICH COULD HAVE BEEN TRANSPORTED AT GOVERNMENT EXPENSE, AT THE TIME OF THE SHIPMENT WAS MADE, WAS 7,000 POUNDS AND NO GOVERNMENT AGENCY OR EMPLOYEE HAS THE AUTHORITY TO WAIVE SUCH STATUTORY WEIGHT LIMITATION. MOREOVER, PURSUANT TO PARAGRAPH C 7052-2 OF THE JTR, AN EMPLOYEE IS LIABLE FOR ALL COSTS IN CONNECTION WITH SHIPMENTS OF HOUSEHOLD EFFECTS IN EXCESS OF THE WEIGHT LIMITATION, AND HIS SIGNATURE ON THE APPLICATION FOR SHIPMENT, FORM 1299, CONSTITUTES AN AGREEMENT TO PAY EXCESS WEIGHT CHARGES. THE AGREEMENT TO THAT EFFECT IS A PART OF THE RECORD.

WHILE IT IS REGRETTABLE THAT MR. MITCHELL MAY HAVE BEEN MISLED BY THE ERRONEOUS INFORMATION FURNISHED BY THE SHIPPER, HIS RIGHTS ARE FOR DETERMINATION ON THE BASIS OF THE FACTS RATHER THAN ON SUCH ERRONEOUS INFORMATION. IT IS WELL ESTABLISHED THAT THE GOVERNMENT, WHICH MAY ACT ONLY THROUGH ITS AGENTS, IS LIABLE ONLY TO THE EXTENT THAT ITS AGENTS ACT WITHIN THE SCOPE OF STATUTES AND REGULATIONS ISSUED PURSUANT TO STATUTES. ALSO, IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE 44 COMP. GEN. 337 (1964) AND DECISIONS CITED THEREIN.

IN VIEW OF THE FOREGOING MR. MITCHELL IS LIABLE TO THE GOVERNMENT FOR THE EXCESS SHIPPING CHARGES AND COLLECTION SHOULD BE EFFECTED.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER ARE RETURNED.