B-217861, JUN 24, 1985

B-217861, JUN 24, 1985

CLAIMS - REPORTING TO CONGRESS - MERITORIOUS CLAIMS ACT - REPORTING NOT WARRANTED DIGEST: GAO AFFIRMS THE DECISION OF OUR CLAIMS GROUP THAT CLAIM FOR PROPERTY DAMAGE BY CONTRACTOR'S EMPLOYEE WORKING FOR THE DEPARTMENT OF DEFENSE DOES NOT WARRANT RECOMMENDATION TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 3702(D) BECAUSE IT DOES NOT MEET GAO CRITERIA FOR MAKING SUCH RECOMMENDATIONS.

CLAIM OF DEBORAH S. CALDWELL:

MS. DEBORAH S. CALDWELL APPEALS THE ACTION OF OUR CLAIMS GROUP IN DETERMINING THAT HER CLAIM IS INAPPROPRIATE FOR REPORTING TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. SEC. 3702(D). AS WILL BE EXPLAINED BELOW, WE CONCUR WITH THE CLAIMS GROUP.

WHILE WORKING FOR A CONTRACTOR PERFORMING WORK FOR THE DEPARTMENT OF THE ARMY IN 1983, MS. CALDWELL LEASED GOVERNMENT-OWNED QUARTERS IN BABITT, NEVADA, AS A RESIDENCE. THE QUARTERS WERE UNDER THE JURISDICTION OF THE DEPARTMENT OF THE ARMY, WHICH HAD CONTRACTED WITH A PRIVATE CORPORATION TO MANAGE THE FACILITIES. ON NOVEMBER 10, 1983, A SEVERE STORM WITH WINDS IN EXCESS OF 90 MILES PER HOUR OCCURRED IN THE BABITT AREA. ACCORDING TO MS. CALDWELL, THE STORM CAUSED POWER SURGES THAT OVERLOADED THE CIRCUITS. DUE TO THE SURGES, CERTAIN OF HER ELECTRICAL APPLIANCES-- A TELEVISION, STEREO, AND HOME COMPUTER-- WERE DAMAGED. SHE INCURRED COSTS OF $460 TO REPAIR THE APPLIANCES.

MS. CALDWELL INDICATES THAT THE DEPARTMENT OF THE ARMY INFORMED ALL OCCUPANTS OF THE GOVERNMENT HOUSING THAT THEY COULD FILE CLAIMS FOR DAMAGE TO THEIR PERSONAL PROPERTY OCCASIONED BY THE STORM. SHE THEREFORE FILED A CLAIM FOR HER FINANCIAL LOSS. ALTHOUGH APPARENTLY SOME INDIVIDUALS WERE REIMBURSED FOR THEIR LOSSES, MS. CALDWELL WAS NOT.

AS EXPLAINED IN THE LETTER SENT BY THE ARMY TO MS. CALDWELL, THE ARMY ADJUDICATED HER CLAIM UNDER THE PROVISIONS OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SEC. 3721 (FORMERLY 31 U.S.C. SEC. 240-243). SINCE THE ACT ONLY AUTHORIZES CLAIMS TO BE PAID FOR DAMAGE TO PERSONAL PROPERTY OWNED BY A MEMBER OF THE UNIFORMED SERVICES OR AN OFFICER OR EMPLOYEE OF A FEDERAL AGENCY, MS. CALDWELL, AN EMPLOYEE OF A PRIVATE CONTRACTOR, WAS NOT ELIGIBLE TO RECOVER UNDER THE ACT. THE ARMY, HOWEVER, DID SUGGEST TO MS. CALDWELL THAT SHE SUBMIT HER CLAIM TO THE CLAIMS GROUP OF THE GENERAL ACCOUNTING OFFICE FOR CONSIDERATION FOR REPORTING TO THE CONGRESS AS A MERITORIOUS CLAIM. WHEN SHE DID THIS, THE CLAIMS GROUP INFORMED HER THAT THE CLAIM DID NOT MEET GAO CRITERIA FOR SUBMISSION TO THE CONGRESS AS A MERITORIOUS CLAIM.

SUBSEQUENT TO THE ACTION OF THE CLAIMS GROUP, MS. CALDWELL PROVIDED ADDITIONAL INFORMATION IN SUPPORT OF HER CLAIM. SHE NOW ALLEGES THAT THE DAMAGE TO HER APPLIANCES WAS DUE TO THE SUBSTANDARD NATURE OF THE HOUSING IN WHICH SHE LIVED. SPECIFICALLY, IN HER LETTER SHE STRESSES THAT THE HOUSE HAD 30 TO 60 AMP BREAKERS IN IT AND "THE FMHA HOUSING REQUIREMENTS SAY THAT IT SHOULD HAVE A MINIMUM OF 100 AMP BREAKERS." CONSEQUENTLY, SHE SUGGESTS THAT HAD THE ELECTRICAL SERVICE MET FMHA STANDARDS, HER APPLIANCES WOULD NOT HAVE SUSTAINED THE DAMAGE FROM THE POWER SURGES.

DISCUSSION

THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. SEC. 3702(D), PROVIDES AS FOLLOWS:

"THE COMPTROLLER GENERAL SHALL REPORT TO CONGRESS ON A CLAIM AGAINST THE GOVERNMENT THAT IS TIMELY PRESENTED UNDER THIS SECTION THAT MAY NOT BE ADJUSTED BY USING AN EXISTING APPROPRIATION, AND THAT THE COMPTROLLER GENERAL BELIEVES CONGRESS SHOULD CONSIDER FOR LEGAL OR EQUITABLE REASONS. THE REPORT SHALL INCLUDE RECOMMENDATIONS OF THE COMPTROLLER GENERAL."

WE HAVE CONSISTENTLY CONSTRUED THIS ACT AS BEING APPLICABLE TO CLAIMS WHICH ARE TIMELY PRESENTED AND WHICH HAVE ELEMENTS OF LEGAL OR EQUITABLE MERIT BUT WHICH CANNOT BE ADJUSTED AND SETTLED REGARDLESS OF THE EQUITIES INVOLVED, BECAUSE NO AGENCY APPROPRIATION IS AVAILABLE TO PAY IT. SEE 34 COMP.GEN. 490 (1955).

AS A MATTER OF POLICY, THIS OFFICE HAS GENERALLY DECLINED TO CONSIDER CLAIMS FOR WHICH THE UNDERLYING AUTHORITY TO MAKE CONCLUSIVE SETTLEMENTS HAS BEEN SPECIFICALLY DELEGATED TO ANOTHER AGENCY. SEE 62 COMP.GEN. 280 (1983). IN THIS INSTANCE, MS. CALDWELL'S CLAIM FOR LOSS OR DAMAGE TO PROPERTY UNDER THE ONLY TWO APPLICABLE STATUTES-- THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEE'S CLAIM ACT OF 1964, CITED EARLIER, OR THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS. 2671-80-- LIES WITHIN THE EXCLUSIVE JURISDICTION OF THE HEAD OF THE AGENCY CONCERNED OR HIS DELEGEE FOR SETTLEMENT.

EVEN IF THIS WERE NOT THE CASE, MS. CALDWELL'S CLAIM DOES NOT MEET OUR CRITERIA FOR RECOMMENDATION TO THE CONGRESS AS A MERITORIOUS CLAIM, FOR THE REASONS EXPLAINED TO MS. CALDWELL BY OUR CLAIMS SUPERVISORY ADJUDICATOR IN HER LETTER OF APRIL 24, 1984.

WE THEREFORE AFFIRM THE DECISION OF OUR CLAIMS GROUP THAT MS. CALDWELL'S CLAIM DOES NOT MERIT SUBMISSION TO THE CONGRESS AS A MERITORIOUS CLAIM UNDER 31 U.S.C. SEC. 3702(D).