B-61401, DECEMBER 9, 1946, 26 COMP. GEN. 398

B-61401, DECEMBER 9, 1946, 26 COMP. GEN. 398

POSTAL SERVICE - POSTMASTERS - RELIEF FROM LOSS OF FUNDS THROUGH UNAVOIDABLE CASUALTY A LOSS OF POSTAL FUNDS IN A POSTMASTER'S CUSTODY THROUGH ENEMY INVASION AND SEIZURE IS TO BE REGARDED AS A LOSS RESULTING FROM AN "UNAVOIDABLE CASUALTY" WITHIN THE PURVIEW OF THE ACT OF DECEMBER 7, 1945, PRESCRIBING, IN SUCH CASES, A METHOD AND MEASURE OF RELIEF, AND, AS SUCH, IS SPECIFICALLY EXCEPTED (5 U.S.C. 384) FROM THE PROVISIONS IN 5 U.S.C. CODE 383, 384 AUTHORIZING THE GENERAL ACCOUNTING OFFICE, WITH THE CONSENT OF THE POSTMASTER GENERAL, TO RELIEVE POSTAL SERVICE EMPLOYEES OF LIABILITY ARISING FROM ACCOUNTABILITY FOR PUBLIC MONEYS.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, DECEMBER 9, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 8, 1946, REFERENCE 50, AS FOLLOWS:

THE COMPTROLLER OF THE POST OFFICE DEPARTMENT HAS CERTIFIED THAT THE CASE OF JAMES H. UNDERWOOD, FORMER POSTMASTER AT GUAM, GUAM, INVOLVING LIABILITY TO THE UNITED STATES IN THE SUM OF $25,439.31, IS ONE PROBABLY REQUIRING THE EXERCISE OF THE POWERS OF THE POSTMASTER GENERAL OVER FINES, PENALTIES, FORFEITURES AND LIABILITIES, PURSUANT TO TITLE 5, SECTIONS 383 AND 384 OF THE UNITED STATES CODE. ACCORDINGLY, I HEREBY CONSENT TO THE ACTION PROPOSED AND TRANSMIT THE CASE FOR CONSIDERATION BY YOUR OFFICE.

THIS LIABILITY REPRESENTS THE AMOUNT OF MONEY ORDER AND POSTAL FUNDS LOST AT GUAM, GUAM, WHICH OCCURRED ON DECEMBER 10, 1941, WHEN THE ISLAND WAS INVADED BY THE JAPANESE ARMED FORCES AND THE POST OFFICE WAS SEIZED BY THE INVADERS. THE POSTMASTER WAS TAKEN INTO CUSTODY AND FORCED TO OPEN THE VAULT AND SURRENDER THE KEYS. HE THEN WAS REMOVED FROM THE ISLAND TO A PRISON CAMP AT KOBE, JAPAN.

THE ATTACHED REPORT OF POST OFFICE INSPECTOR DONALD LAMBERT RELATES TO THE INVESTIGATION CONDUCTED BY CAPTAIN E. L. FRASE, USMCR, A UNITED STATES POST OFFICE INSPECTOR ON ACTIVE DUTY WITH THE MILITARY FORCES. FORMER EMPLOYEES AT THE GUAM POST OFFICE, WHO REMAINED ON THE ISLAND DURING THE JAPANESE OCCUPATION, ADVISED CAPTAIN FRASE THAT SEVERAL MONTHS SUBSEQUENT TO THE DATE OF INVASION THE POST OFFICE WAS RE OPENED AS A JAPANESE POST OFFICE; THAT IN FEBRUARY 1944, THE POST OFFICE WAS MOVED TO ANOTHER BUILDING; AND THAT THE NEW POST OFFICE BUILDING AND CONTENTS WERE ALMOST COMPLETELY DESTROYED BY BOMBS IN THE ENGAGEMENT LEADING TO THE REOCCUPATION OF THE ISLANDS BY THE AMERICAN FORCES.

ACCORDING TO INFORMATION FURNISHED BY THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE, THE MONEY ORDER AND POSTAL ACCOUNTS OF JAMES H. UNDERWOOD, FORMER POSTMASTER AT GUAM, SHOW BALANCES OF $918.84 AND $24,520.47, RESPECTIVELY.

THE INVESTIGATION DISCLOSED NO EVIDENCE WHICH WOULD INDICATE ANY PECULATIONS ON THE PART OF THE POSTMASTER OR THE EMPLOYEES OF THE GUAM POST OFFICE. IT APPEARS THAT THE FUNDS WERE PROPERLY ON HAND AND THE LOSS RESULTED FROM CONDITIONS OVER WHICH MR. UNDERWOOD HAD NO CONTROL. THEREFORE, AM OF THE OPINION THAT THE AMOUNTS OUTSTANDING IN THE MONEY ORDER AND POSTAL ACCOUNTS OF JAMES H. UNDERWOOD, FORMER POSTMASTER AT GUAM, GUAM, SHOULD BE REMITTED.

SECTIONS 383 AND 384, TITLE 5, U.S. CODE, CITED AS AUTHORITY FOR THE RELIEF OF THE POSTMASTER HERE INVOLVED, PROVIDE AS FOLLOWS:

383. REMITTING FINES, PENALTIES, AND FORFEITURES.

IN ALL CASES OF FINE, PENALTY, FORFEITURE, OR DISABILITY, OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE, UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS,OR BUSINESS OF THE POSTAL SERVICE, THE POSTMASTER GENERAL MAY PRESCRIBE SUCH GENERAL RULES AND MODES OF PROCEEDING AS SHALL APPEAR TO BE EXPEDIENT, FOR THE GOVERNMENT OF THE BUREAU OF ACCOUNTS IN THE POST OFFICE DEPARTMENT, IN ASCERTAINING THE FACT IN EACH CASE IN WHICH THE COMPTROLLER OF THE BUREAU OF ACCOUNTS SHALL CERTIFY TO HIM THAT THE INTERESTS OF THE DEPARTMENT PROBABLY REQUIRE THE EXERCISE OF HIS POWERS OVER FINES, PENALTIES, FORFEITURES AND LIABILITIES; AND UPON THE FACT BEING ASCERTAINED, THE GENERAL ACCOUNTING OFFICE MAY, WITH THE WRITTEN CONSENT OF THE POSTMASTER GENERAL, MITIGATE OR REMIT SUCH FINE, PENALTY, OR FORFEITURE, REMOVE SUCH DISABILITY, OR COMPROMISE, RELEASE, OR DISCHARGE SUCH CLAIM FOR SUCH SUM OF MONEY AND DAMAGES, AND ON SUCH TERMS AS THE COMPTROLLER OF THE BUREAU OF ACCOUNTS IN THE POST OFFICE DEPARTMENT SHALL DEEM JUST AND EXPEDIENT ( R.S. SEC. 409; JUNE 10, 1921, CH. 18, SEC. 304, 42 STAT. 24.)

384. SAME; BALANCES DUE UNITED STATES FOR PUBLIC MONEYS UNDER LAWS RELATING TO POSTAL SERVICE.

THE PROVISIONS OF SECTION 383 OF THIS TITLE SHALL EXTEND IN ALL CASES PENDING ON MARCH 4, 1925, OR WHICH MAY THEREAFTER ARISE TO BALANCES DUE TO THE UNITED STATES THROUGH ACCOUNTABILITY FOR PUBLIC MONEYS UNDER ANY PROVISION OF LAW IN RELATIONS TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, EXCEPTING THE CLASS OF CASES COGNIZABLE UNDER SECTION 49 OF TITLE 39. ( MAR. 4, 1925, CH. 531, 43 STAT. 1266.) ITALICS SUPPLIED.)

SECTION 49, TITLE 39, U.S. CODE, AS AMENDED BY THE ACT OF DECEMBER 7, 1945, 59 STAT. 603, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE POSTMASTER GENERAL MAY INVESTIGATE ALL CLAIMS OF POSTMASTERS * * * FOR THE LOSS OF ANY FUNDS OR VALUABLE PAPER WHICH THEY MAY HAVE IN THEIR OFFICIAL CUSTODY, RESULTING FROM BURGLARY, FIRE, OR OTHER UNAVOIDABLE CASUALTY * * * AND IF HE SHALL DETERMINE THAT SUCH LOSS RESULTED FROM NO FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICERS OR EMPLOYEES, MAY PAY TO THEM OR CREDIT THEM WITH THE AMOUNT SO ASCERTAINED TO HAVE BEEN LOST OR DESTROYED * * * PROVIDED * * * NO CLAIM EXCEEDING THE SUM OF $10,000 SHALL BE PAID OR CREDITED UNTIL AFTER THE FACTS SHALL HAVE BEEN ASCERTAINED BY THE POSTMASTER GENERAL, AND AN APPROPRIATION MADE THEREFOR. * * *

THE CIRCUMSTANCES UNDER WHICH THE FUNDS HERE INVOLVED WERE LOST, THAT IS, AS AN INCIDENT OF THE WAR WITH JAPAN, THROUGH THE INVASION OF THE ISLAND OF GUAM AND THE SEIZURE OF THE FUNDS BY ENEMY TROOPS, WOULD APPEAR TO REPRESENT A CLEAR CASE OF LOSS BY "UNAVOIDABLE CASUALTY.' SEE, IN SUCH CONNECTION, 43 WORDS AND PHRASES, PAGE 44, FROM WHICH IT APPEARS THAT THE COURTS HAVE DEFINED THE PHRASE "UNAVOIDABLE CASUALTY" AS "ONE WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF REASONABLE DILIGENCE AND SKILL," OR AS "AN EVENT OR ACCIDENT WHICH HUMAN PRUDENCE AND SAGACITY CANNOT PREVENT.' SECTION 49, TITLE 39, U.S. CODE, SUPRA, SPECIFICALLY PROVIDES THE METHOD AND MEASURE OF RELIEF IN CASES OF LOSS OF POSTAL FUNDS UNDER SUCH CIRCUMSTANCES. AND SECTION 384, TITLE 5, U.S. CODE, SUPRA, SPECIFICALLY EXCLUDES FROM THE APPLICABILITY OF ITS PROVISIONS CASES COGNIZABLE UNDER SAID SECTION 49 OF TITLE 39.

IN VIEW OF THE FOREGOING I AM CONSTRAINED TO HOLD THAT THE INSTANT CASE IS NOT ONE PROPER FOR CONSIDERATION UNDER THE SECTIONS OF THE U.S.C. CITED IN YOUR LETTER.