B-136730, JAN. 3, 1964

B-136730, JAN. 3, 1964

TO MISS ZELMA COOLIDGE:

FURTHER REFERENCE IS MADE TO YOUR TELEPHONE CONVERSATION OF DECEMBER 9, 1963, WITH MISS LAMONTE, OUR ADMINISTRATIVE ASSISTANT, REGARDING THE CLAIMS OF YOUR MOTHER, MRS. LILLIAN NORA COOLIDGE, IN THE CASE OF YOUR LATE BROTHER THOMAS JEFFERSON COOLIDGE, UNITED STATES NAVY, WHO DIED DECEMBER 15, 1944.

IN A LETTER OF DECEMBER 11, 1963, TO YOU, YOU WERE ADVISED THAT THE MATTER WOULD AGAIN BE LOOKED INTO AND THAT WE WOULD GIVE YOU A REPORT OF THE RESULTS OF OUR INVESTIGATION AND OUR LEGAL POSITION IN THE MATTER. SINCE THEN ADDITIONAL COMMUNICATIONS HAVE BEEN RECEIVED FROM YOU.

YOUR MOTHER'S CLAIM FOR THE ACTIVE-DUTY PAY AND ALLOWANCES DUE IN THIS CASE WAS THE SUBJECT OF DECISIONS OF AUGUST 19, OCTOBER 14, AND DECEMBER 11, 1958, B-136730, TO HER. IN THOSE DECISIONS, WE EXPLAINED THAT, ON THE BASIS OF THE RECORD AS CORRECTED BY THE BOARD FOR CORRECTION OF NAVAL RECORDS AND UNDER THE APPLICABLE PROVISIONS OF LAW, THE SUM OF $6,560.29, REPRESENTING ACTIVE-DUTY PAY AND ALLOWANCES DUE HER SON, INCLUDING PAYMENT OF A SIX MONTHS' DEATH GRATUITY, WHICH WE HAD ALLOWED HER WAS THE MAXIMUM AMOUNT DUE IN THE CASE ON THOSE ACCOUNTS AND NO FURTHER PAYMENT LEGALLY COULD BE MADE FOR SUCH ITEMS. WE HAVE NO AUTHORITY TO TAKE ANY FURTHER ACTION ON THIS ACCOUNT AND IT APPEARS UNNECESSARY TO AGAIN REPEAT THE SUBSTANCE OF THOSE DECISIONS.

IN OUR LETTERS OF FEBRUARY 27, 1959, AND MAY 5, 1959, TO YOU, WE EXPLAINED THAT YOUR CLAIM ON BEHALF OF YOUR MOTHER FOR CERTAIN ITEMS OF REAL AND PERSONAL PROPERTY ALLEGEDLY BELONGING TO YOUR BROTHER AND FOR CERTAIN ALLEGED RENTALS WAS NOT WITHIN THE JURISDICTION OF OUR OFFICE, AND THAT THERE WAS NO LONGER ANY AUTHORITY UNDER THE APPLICABLE PROVISIONS OF LAW TO AUTHORIZE PAYMENT OF FAMILY ALLOWANCE BENEFITS TO YOUR MOTHER.

AS IN YOUR PREVIOUS CORRESPONDENCE YOU ASSERT, AMONG OTHER THINGS, THAT DURING WORLD WAR II CERTAIN PROPERTIES (LUZON BAR) IN MANILA AND A CONSIDERABLE AMOUNT OF LIQUOR BELONGING TO YOUR BROTHER WERE UNLAWFULLY SEIZED BY THE AUTHORITIES IN CHARGE AT THAT TIME. RELYING UPON CERTAIN ASSERTED LEGAL RULES AND MAXIMS, SUBSTANTIVE AND PROCEDURAL, WHICH YOU APPEAR TO BELIEVE SHOULD GOVERN THIS OFFICE IN DISPOSING OF THE MATTER, YOU CONTEND THAT, SINCE YOUR MOTHER WAS THE BENEFICIARY UNDER YOUR BROTHER'S WILL, SHE SHOULD BE COMPENSATED BY THE GOVERNMENT FOR SUCH PROPERTY. YOU ALSO ASSERT THAT CERTAIN PERSONAL PROPERTY BELONGING TO YOUR BROTHER AT THE TIME OF HIS DEATH WAS NEVER TURNED OVER TO YOUR MOTHER AND YOU APPEAR TO BELIEVE THAT UNDER CERTAIN STATUTORY PROVISIONS, SUCH PROPERTY IS RETAINED IN THIS OFFICE.

IN A PETITION FILED BY YOU ON BEHALF OF YOUR MOTHER ON MAY 9, 1960, IN THE UNITED STATES COURT OF CLAIMS (LILLIAN NORA COOLIDGE V. UNITED STATES, CT.CL. NO. 173-60), YOU LIKEWISE SOUGHT TO RECOVER FOR THE LOSS OF A NUMBER OF ITEMS INCLUDING COMPENSATION FOR THE LOSS OF YOUR BROTHER'S PROPERTY AND INCOME. THE RECORD SHOWS THAT ON MOTION OF THE DEFENDANT FOR SUMMARY JUDGMENT, THE PETITION WAS DISMISSED BY ORDER OF THE COURT ON JUNE 30, 1961, FOR THE REASON THAT THE "PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION WITHIN THE JURISDICTION OF THIS COURT.' THE JURISDICTION OF THE COURT OF CLAIMS IS SET FORTH IN 28 U.S.C. 1491, AND THE COURT MAY RENDER A JUDGMENT WITHOUT REGARD TO CONGRESSIONAL AUTHORIZATION OR AVAILABILITY OF FUNDS TO PAY THE CLAIM. UNLIKE THE COURT OF CLAIMS HOWEVER, THE GENERAL ACCOUNTING OFFICE IN THE EXERCISE OF ITS CLAIMS SETTLEMENT AUTHORITY MAY NOT ALLOW A CLAIM UNLESS THERE IS SOME STATUTORY BASIS FOR GOVERNMENT LIABILITY AND FEDERAL FUNDS ARE AVAILABLE FOR ITS PAYMENT. THE LEGAL RULES AND MAXIMS TO WHICH YOU REFER DO NOT OPERATE TO EXTEND OUR AUTHORITY IN THAT RESPECT. SINCE THE COURT OF CLAIMS UNDER ITS MUCH BROADER CLAIMS JURISDICTION DISMISSED YOUR PETITION BECAUSE YOU HAD FAILED TO STATE A CAUSE OF ACTION WITHIN THE JURISDICTION OF THAT COURT, WE HAD NO CHOICE BUT TO CONCLUDE THAT, UNDER OUR LIMITED CLAIMS JURISDICTION, YOUR MOTHER'S CLAIM FOR COMPENSATION FOR PROPERTY LOCATED IN THE PHILIPPINES, WAS NOT ONE OVER WHICH OUR OFFICE HAS JURISDICTION. OUR LETTER OF NOVEMBER 8, 1963, TO YOU, IN WHICH WE SAID THE MATTER WAS RES JUDICATA HAD REFERENCE TO THIS ASPECT OF THE MATTER AND, OF COURSE, HAVING NO JURISDICTION TO EVEN CONSIDER THE PROPERTY CLAIMS WE MAY TAKE NO ACTION ON THEM. IN THIS REGARD, IT APPEARS FROM THE CORRESPONDENCE IN THE FILE, THAT SIMILAR CLAIMS HAVE BEEN FILED BY YOU WITH THE DEPARTMENT OF THE NAVY UNDER THE MILITARY PERSONNEL CLAIMS ACT OF 1945, THE PHILIPPINE WAR DAMAGE COMMISSION AND THE WAR CLAIMS COMMISSION.

WITH RESPECT TO YOUR BROTHER'S PERSONAL EFFECTS, YOU CITE 22 U.S.C. 1175. SECTION 1175 OF TITLE 22 OF THE U.S.C. IMPOSES UPON A CONSULAR OFFICER RESPONSIBILITY---

"TO TAKE POSSESSION AND TO DISPOSE OF THE PERSONAL ESTATE LEFT BY ANY CITIZEN OF THE UNITED STATES * * * WHO SHALL DIE * * * WITHIN HIS JURISDICTION * * *.'

THE LAW FURTHER PROVIDES THAT IF AFTER EXPIRATION OF ONE YEAR FROM THE DATE OF DEATH, THE CONSULAR OFFICER CANNOT MAKE PROPER DISPOSITION OF THE PROPERTY, THE PERSONAL ESTATE IS TO BE TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE "THERE TO BE HELD IN TRUST FOR THE LEGAL CLAIMANT.' SINCE YOUR BROTHER DIED WHILE ON ACTIVE DUTY IN THE NAVY THOSE PROVISIONS OF LAW WOULD NOT APPEAR TO BE APPLICABLE IN HIS CASE. WE HAVE, HOWEVER, MADE A THOROUGH SEARCH OF THE INVENTORY RECORDS AND ITEMS FURNISHED US UNDER 22 U.S.C. 1175, AND THE NAME OF THOMAS JEFFERSON COOLIDGE DOES NOT APPEAR ON THAT LIST, NOR DO WE HAVE IN OUR CUSTODY ANY ITEMS OF PERSONAL EFFECTS BELONGING TO HIM. IN THIS CONNECTION, SINCE YOUR BROTHER DIED WHILE IN THE NAVAL SERVICE, IT WOULD APPEAR THAT ANY OF HIS PERSONAL EFFECTS WHICH WERE LOCATED AND IDENTIFIED AFTER HIS DEATH WOULD HAVE COME UNDER THE JURISDICTION OF THE CHIEF OF NAVAL PERSONNEL (PARAGRAPH C-7004, BUREAU OF NAVAL PERSONNEL MANUAL, 1942 EDITION, NOW IN C-9810 OF THE 1959 EDITION). WE NOTE, HOWEVER, FROM THE RECORD THAT, ON JUNE 7, 1963, THE AMERICAN EMBASSY, MANILA, PHILIPPINES, ADVISED YOU THAT YOUR BROTHER'S ESTATE CONSISTING OF PERSONAL PROPERTY AND CASH DEPOSITED IN A BANK IN MANILA WAS ADJUDICATED BY A COURT IN MANILA AND THAT YOUR MOTHER RECEIVED APPROXIMATELY $3,000. THERE IS NO LEGAL BASIS UPON WHICH WE MAY QUESTION THE DETERMINATION OF A PROPER JUDICIAL TRIBUNAL HAVING JURISDICTION OVER THE DISTRIBUTION OF YOUR BROTHER'S PERSONAL ESTATE AND WE SUGGEST THAT THE MATTER BE TAKEN UP WITH THE LAW FIRM WHICH HANDLED THE ESTATE IN MANILA.

AS STATED ABOVE, YOUR MOTHER'S CLAIM FOR LOSS OF THE PROPERTY ITEMS IS NOT LEGALLY WITHIN THE JURISDICTION OF OUR OFFICE AND OUR SETTLEMENT ACTION IN THE MATTER OF HIS PAY AND ALLOWANCES AND DEATH GRATUITY REPRESENTS THE FULL EXTENT OF OUR SETTLEMENT AUTHORITY IN THIS ENTIRE MATTER. THUS, WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, THERE IS NO LEGAL BASIS FOR ANY FURTHER ACTION BY US ON YOUR MOTHER'S CLAIMS. SINCE, ON THE PRESENT RECORD, FURTHER CORRESPONDENCE BY US IN THE MATTER WILL SERVE NO USEFUL PURPOSE, ANY FURTHER COMMUNICATION FROM YOU ABOUT THIS CASE ..END :