B-127766, JUL. 26, 1956

B-127766, JUL. 26, 1956

TO MR. H. M. COOPER:

RECEIPT OF ACKNOWLEDGED OF YOUR RECENT LETTERS (WITH ENCLOSURES), MAKING FURTHER REFERENCE TO OUR SETTLEMENT OF JANUARY 25, AND EXPLANATORY LETTER DATED APRIL 11, 1956, WHEREIN YOU WERE DENIED PAYMENT OF YOUR CLAIM FOR DAMAGES SUSTAINED AS A RESULT OF THE REPEATED FLOODING OF YOUR FARM LAND SITUATED IN THE VICINITY OF CHAMBERSBURG (PIKE COUNTY), ILLINOIS, FROM WATERS OF THE MCGEE CREEK. YOU CONTEND THAT THE FLOOD DAMAGE WAS CAUSED BY A LEVEE ERECTED SEVERAL YEARS AGO WHICH HAS BEEN REPAIRED OR RESTORED FROM TIME TO TIME SINCE 1944 BY THE CORPS OF ENGINEERS, WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY).

INFORMATION ON FILE HERE DOES NOT SHOW WHEN OR BY WHOM THE SO-CALLED CHAMBERSBURG LEVEE WAS ERECTED, BUT A REPORT FROM THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, STATES THAT IT WAS NOT CONSTRUCTED BY THE FEDERAL GOVERNMENT. IN ANY EVENT, YOU ALLEGE THAT THE DAMAGES COMPLAINED OF OCCURRED AFTER THE LEVEE WAS REPAIRED OR RESTORED OVER YOUR PROTEST.

PAYMENT OF YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 25, 1956, FOR THE REASON THAT THE CLAIM IS ONE SOUNDING IN TORT, AND NO JURISDICTION IS CONFERRED ON THIS OFFICE WITH RESPECT TO TORT CLAIMS ARISING IN ANY FEDERAL AGENCY OTHER THAN THE GENERAL ACCOUNTING OFFICE IN ANY AMOUNT. SEE UNITED STATES V. ST. LOUIS CLAY PRODUCTS CO., 68 F.SUPP. 902, WHEREIN IT WAS STATED THAT THE GENERAL ACCOUNTING OFFICE "HAS NO GENERAL AUTHORITY TO AWARD DAMAGES AS FOR TORT.'

SECTION 403/A) OF THE FEDERAL TORT CLAIMS ACT OF AUGUST 2, 1946, 60 STAT. 843, AS AMENDED, CONFERS UPON THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THAT PURPOSE ACTING ON BEHALF OF THE UNITED STATES, DISCRETIONARY AUTHORITY TO CONSIDER AND SETTLE OTHERWISE PROPER CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES OF $1,000 OR LESS "FOR INJURY OR LOSS OF PROPERTY * * * CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OF OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, UNDER CIRCUMSTANCES WHERE THE UNITED STATES, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED.' JURISDICTION TO DETERMINE AND SETTLE TORT CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES IN EXCESS OF $1,000 IS VESTED EXCLUSIVELY IN THE COURTS. SEE SECTION 1346/B), TITLE 38, U.S.C. ALSO, SEE SECTION 1331, TITLE 28, U.S. CODE, WHICH PROVIDES:

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF $3,000, EXCLUSIVE OF INTERESTS AND COSTS, AND ARISES UNDER THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES.'

AFTER HAVING RELEASED THE ABOVE-MENTIONED SETTLEMENT, AN ADMINISTRATIVE REPORT WAS REQUESTED FROM THE DEPARTMENT OF THE ARMY, AND A COPY OF THE DETAILED REPORT AND RECOMMENDATION SIGNED BY THE DISTRICT ENGINEER, ST. LOUIS DISTRICT, CORPS OF ENGINEERS, WAS FORWARDED TO YOU WITH OUR LETTER DATED APRIL 11, 1956. IN YOUR RECENT COMMUNICATIONS YOU QUESTION CERTAIN FACTS RELATED IN THAT REPORT. HOWEVER, THE RULE IS WELL ESTABLISHED AND LONG FOLLOWED BY GOVERNMENT ACCOUNTING OFFICERS THAT IN THE EVENT OF A DISAGREEMENT BETWEEN THE FACTS STATED BY A CLAIMANT AND THOSE REPORTED BY THE ADMINISTRATIVE OFFICE CONCERNED, THE LATTER MUST BE ACCEPTED AS CONTROLLING IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF OFFICIAL RECORDS. ALSO, YOU SPECIFICALLY REQUEST COPIES OF CERTAIN DOCUMENTS OR PAPERS REFERRED TO IN THE REPORT SIGNED BY THE DISTRICT ENGINEER. SINCE THE REQUESTED PAPERS OR DOCUMENTS ARE UNDER THE CUSTODY OF THE AGENCY INVOLVED AND ARE NOT AVAILABLE HERE, SUCH REQUESTS SHOULD BE ADDRESSED DIRECT TO THE DISTRICT ENGINEER, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C.

IN VIEW OF THE ABOVE, NO BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT DATED JANUARY 25, 1956, DENYING PAYMENT OF YOUR CLAIM MUST BE AND IS SUSTAINED.