B-147139, MAR. 5, 1962

B-147139, MAR. 5, 1962

TO MR. VINCENT L. CALABRESE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1961, FURTHER REGARDING OUR SETTLEMENT DATED DECEMBER 11, 1950, WHICH DISALLOWED THE CLAIM OF DOMINIC A DELLAIRO FOR REFUND OF THE CHECK AGES AGAINST HIS PAY BY REASON OF ERRONEOUS PAYMENTS OF FAMILY ALLOWANCE FOR THE PERIOD AUGUST 1943 THROUGH MAY 1944 WHILE HE WAS SERVING IN THE NAVY.

THE DISALLOWANCE OF HIS CLAIM WAS SUSTAINED IN OUR DECISIONS OF SEPTEMBER 20, 1961, AND OCTOBER 6, 1961, B-147139, IN WHICH THE FACTS AVAILABLE TO US WERE SET OUT AND, THEREFORE, NEED NOT BE REPEATED HERE.

WITH YOUR LETTER OF NOVEMBER 17, 1961, YOU FORWARDED A COPY OF A LETTER DATED JUNE 1, 1961, FROM THE U.S. SECRET SERVICE TO YOU, WHEREIN IT WAS STATED THAT "IT APPEARS FROM OUR FILES THAT FORMER SECRET SERVICE AGENT O- SHEA CLAIMS THAT HE PAID TO DOMINIC A. DELLAIRO THE $400 ALLEGEDLY RECEIVED FROM ANTHONY TURCO, WHILE ON THE OTHER HAND, DELLAIRO CLAIMS THAT HE NEVER RECEIVED THE ALLEGED AMOUNT FROM O SHEA.' IN THIS CONNECTION, ATTENTION IS INVITED TO A SUBSEQUENT LETTER DATED JULY 13, 1961, WHEREIN YOU WERE ADVISED THAT IT IS NOT POSSIBLE FOR THE SECRET SERVICE TO RETAIN ALL ITS FILES INDEFINITELY AND, AS A PART OF THE RECORDS MANAGEMENT PROGRAM, FILES IN CASES OF THIS NATURE ARE DESTROYED AFTER A PERIOD OF YEARS HAS ELAPSED.

THE RECORD NOW MADE AVAILABLE BY THE DEPARTMENT OF THE TREASURY SHOWS THAT, BASED ON HIS RECOLLECTION, THE FORMER SECRET SERVICE AGENT STATED THAT HE AT ONE TIME COLLECTED $400 FROM ANTHONY TURCO BUT THE ADMINISTRATIVE OFFICE CAN FURNISH NO DEPENDABLE EVIDENCE RELATIVE TO THE MATTER. THE COLLECTION IS ALLEGED TO HAVE BEEN MADE IN 1945 AND A CLAIM BY YOUR CLIENT FOR THE AMOUNT INVOLVED WAS NOT SUBMITTED UNTIL 1950 OR MORE THAN 5 YEARS FROM THE TIME IT IS ALLEGED THAT THE COLLECTION WAS MADE. ALSO, IT APPEARS THAT YOUR CLIENT HAD KNOWLEDGE OF THE COLLECTION AND THAT HIS DELAY IN MAKING HIS CLAIM IS THE PRIMARY CAUSE FOR THE GOVERNMENT'S INABILITY NOW TO ASCERTAIN THE TRUE FACTS IN THIS MATTER.

IN YOUR LETTER OF NOVEMBER 17, 1961, YOU REQUEST TO BE ADVISED WHETHER "AS AN AGENT OF THE GOVERNMENT IS IT TRUE THAT HIS (MR. O-SHEA S) POSSESSION OF THE $400.00 MAKES IT THE RESPONSIBILITY OF THE GOVERNMENT" AND OTHER PORTIONS OF YOUR LETTER INDICATE THAT YOU ARE OF THE VIEW THAT IF IT CANNOT BE ESTABLISHED THAT MR. DELLAIRO RECEIVED THE PAYMENT IN QUESTION AN ACCOUNTING IS REQUIRED TO BE MADE BY THE GOVERNMENT FOR THE $400.

ALTHOUGH IT HAS BEEN HELD THAT A PRIVATE AGENT ACTING WITHIN THE SCOPE OF HIS GENERAL AUTHORITY MAY BIND HIS PRINCIPAL, THE RULE IS THAT WHEN AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED IN HIM, HIS ACT, FROM A LEGAL STANDPOINT, IS NO LONGER THE ACT OF THE GOVERNMENT. COMP. GEN. 280. CF. WHITESIDE, ET AL. V. UNITED STATES, 93 U.S. 247, 257, AND FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380, 384. HAS BEEN REPORTED THAT THE CHECKS HERE INVOLVED WERE NOT FORWARDED TO THE TREASURY DEPARTMENT FOR RECLAMATION OF THE PROCEEDS THEREOF AND, THEREFORE, THE AUTHORITY PURSUANT TO WHICH THE AGENT IN THIS CASE COULD HAVE MADE THE ALLEGED COLLECTION OF THE PROCEEDS OF THOSE CHECKS FROM MR. TURCO IS NOT APPARENT. THUS, EVEN IF IT COULD BE ESTABLISHED BEYOND DOUBT THAT MR. TURCO PAID THE AGENT THE $400 IN QUESTION, THE GOVERNMENT'S LIABILITY TO ACCOUNT FOR THAT AMOUNT AT THIS TIME IS NOT ESTABLISHED BECAUSE THERE IS NO PROOF THAT THE AMOUNT ACTUALLY WAS RECEIVED BY THE GOVERNMENT OR BY AN AGENT OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS AUTHORITY.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED TO CERTIFY OR APPROVE FOR PAYMENT CLAIMS AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT AND IN THAT CONNECTION IT IS NOT NECESSARY TO DETERMINE AFFIRMATIVELY THAT A CLAIM IS INVALID IN ORDER TO DISALLOW IT. ON THE CONTRARY, IT HAS LONG BEEN THE ESTABLISHED RULE, WHICH HAS BEEN UNIFORM IN APPLICATION, THAT THE GOVERNMENT ACCOUNTING AND ADMINISTRATIVE OFFICERS SHOULD REJECT OR DISALLOW ALL CLAIMS WHICH ARE BASED ON MERE CONJECTURE, SURMISE, SUPPOSITION, OR SELF-SERVING STATEMENTS OF CLAIMANTS. IN THIS CONNECTION, SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316.

ACCORDINGLY, THERE IS PERCEIVED NO LEGAL BASIS FOR ALLOWANCE OF THE CLAIM BY THIS OFFICE AND THE SETTLEMENT OF DECEMBER 11, 1950, MUST BE AND IS SUSTAINED.