B-204766 L/M, MAR 2, 1982

B-204766 L/M: Mar 2, 1982

Additional Materials:

Contact:

Shirley Jones
(202) 512-8156
jonessa@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THAT ACT IS CONSTRUED TO APPLY ONLY TO CLAIMS WHICH FALL WITHIN GAO'S SETTLEMENT AUTHORITY. THE NAVY'S SETTLEMENT OF A CLAIM FOR DAMAGES IS FINAL AND CONCLUSIVE. THE CLAIM IS INAPPROPRIATE FOR REPORTING TO CONGRESS UNDER THE ACT. UNITED STATES HOUSE OF REPRESENTATIVES: THIS IS IN RESPONSE TO YOUR LETTER TO MR. HE IS ENTITLED TO FILE A CLAIM FOR DAMAGES WITH THE GENERAL ACCOUNTING OFFICE UNDER U.S.C. CONCLUDING THAT "THE AVAILABLE EVIDENCE *** DOES NOT ESTABLISH NAVY RESPONSIBILITY INASMUCH AS IT WOULD APPEAR THE CAUSE OF THE ACCIDENT WAS THE FAILURE OF THE PARKING BRAKES AND NOT ANY NEGLIGENCE ON THE PART OF THE U. SUCH THAT THE ONLY WAY TO TAKE ADVANTAGE OF THEIR STOPPING CAPABILITY WAS TO PARK IN TWO STALLS AND STRADDLE THE STALL MARKINGS.

B-204766 L/M, MAR 2, 1982

DIGEST: CIVILIAN EMPLOYEE OF THE NAVY DEPARTMENT HAD HIS CLAIM UNDER 28 U.S.C. SEC. 2672 FOR DAMAGES AGAINST THE UNITED STATES FOR LOSS OF PROPERTY ALLEGEDLY CAUSED BY THE NEGLIGENCE OF NAVY OFFICIALS DENIED BY THE AGENCY. AS TO THE COMPTROLLER GENERAL REPORTING THE MATTER TO CONGRESS AS A MERITORIOUS CLAIM UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 236, THAT ACT IS CONSTRUED TO APPLY ONLY TO CLAIMS WHICH FALL WITHIN GAO'S SETTLEMENT AUTHORITY. SINCE, UNDER 28 U.S.C. SEC. 2672, THE NAVY'S SETTLEMENT OF A CLAIM FOR DAMAGES IS FINAL AND CONCLUSIVE, GAO HAS NO AUTHORITY IN THE MATTER; THEREFORE, THE CLAIM IS INAPPROPRIATE FOR REPORTING TO CONGRESS UNDER THE ACT.

NORMAN D. SHUMWAY, UNITED STATES HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER TO MR. JAMES MANSHEIM OF OUR SAN FRANCISCO REGIONAL OFFICE REGARDING A CLAIM AGAINST THE UNITED STATES BY MR. LEROY POWERS. THE LETTER STATES THAT "ACCORDING TO MR. POWERS, HE IS ENTITLED TO FILE A CLAIM FOR DAMAGES WITH THE GENERAL ACCOUNTING OFFICE UNDER U.S.C. TITLE 31, SECTION 236." YOU REQUESTED THAT WE REVIEW THIS MATTER AND ADVISE YOU OF OUR OPINION.

THE ENCLOSURES TO YOUR LETTER INDICATE THAT, ON NOVEMBER 19, 1980, MR. POWERS PARKED A FORD PICKUP TRUCK, WHICH HE HAD BORROWED APPARENTLY FROM THE VEHICLE OWNER (MR. WILLIAM T. POWERS), IN A PARKING STALL NEAR THE NAVAL COMMAND STATION FIRE DEPARTMENT, BUILDING 117, ROUGH & READY ISLAND, STOCKTON, CALIFORNIA. HE APPLIED THE EMERGENCY BRAKE, LEFT THE TRUCK UNATTENDED AND REPORTED TO WORK AT THE FIRE STATION. MR. PAUL MCCONAHEY, WHO ALSO WORKED AT THE FIRE STATION, DISCOVERED THE TRUCK IN A DITCH ADJACENT TO THE PARKING AREA, WITH DAMAGE TO ITS RIGHT FENDER AND BUMPER.

ON NOVEMBER 24, MR. POWERS FILED A CLAIM WITH THE NAVY DEPARTMENT UNDER THE FEDERAL TORT CLAIMS ACT, FOR DAMAGES IN THE AMOUNT OF $329.48. THE NAVY CONSIDERED THE CLAIM AND DENIED IT, CONCLUDING THAT "THE AVAILABLE EVIDENCE *** DOES NOT ESTABLISH NAVY RESPONSIBILITY INASMUCH AS IT WOULD APPEAR THE CAUSE OF THE ACCIDENT WAS THE FAILURE OF THE PARKING BRAKES AND NOT ANY NEGLIGENCE ON THE PART OF THE U. S. NAVY." MR. POWERS THEN SOUGHT RECONSIDERATION OF HIS CLAIM AND THE NAVY AFFIRMED ITS PRIOR DISALLOWANCE.

MR. POWERS' CLAIM IMPLIES THAT THE TRUCK SUSTAINED DAMAGE AS A RESULT OF NEGLIGENCE ON THE PART OF NAVY OFFICIALS. IN ESSENCE, MR. POWERS ALLEGES THAT THE NAVY IMPROPERLY PLACED CONCRETE BLOCKS WITHIN THE PARKING STALLS, SUCH THAT THE ONLY WAY TO TAKE ADVANTAGE OF THEIR STOPPING CAPABILITY WAS TO PARK IN TWO STALLS AND STRADDLE THE STALL MARKINGS. MR. POWERS ALSO SUGGESTS THAT IF THE CONCRETE BLOCKS HAD BEEN PROPERLY PLACED BEFORE HIS ACCIDENT, THE TRUCK WOULD NOT HAVE ROLLED FROM A PARKING STALL INTO THE DITCH. FURTHERMORE, MR. POWERS STATES THAT AFTER HIS ACCIDENT THE NAVY REPLACED THE CONCRETE BLOCKS WITH A SOLID BARRIER.

THE MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 236 (1976), PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

WHILE THE STATUTE DOES NOT CONTAIN RESTRICTIVE LANGUAGE AS TO THE TYPES OF CLAIMS WHICH ARE REPORTABLE TO CONGRESS BY THIS OFFICE, WE HAVE CONSISTENTLY CONSTRUED IT AS APPLYING ONLY TO CLAIMS OF THE TYPES WHICH FALL WITHIN OUR SETTLEMENT AUTHORITY, BUT WHICH MAY NOT BE ADJUSTED AND SETTLED REGARDLESS OF THE EQUITIES INVOLVED, BECAUSE AGENCY APPROPRIATIONS ARE NOT AVAILABLE TO PAY A CLAIM FOR WHICH THE UNITED STATES IS NOT LEGALLY LIABLE. E.G., 34 COMP.GEN. 490 (1955); B-203204, JULY 24, 1981.

AS A GENERAL RULE, ALL CLAIMS AGAINST THE UNITED STATES ARE COGNIZABLE BY OUR OFFICE EXCEPT WHERE SETTLEMENT AUTHORITY HAS BEEN SPECIFICALLY DELEGATED TO SOME OTHER AGENCY. IN THIS REGARD, CLAIMS FOR DAMAGES AGAINST THE UNITED STATES CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF A GOVERNMENT EMPLOYEE WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, ARE CONSIDERED AND ADJUSTED UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC. 2672 (1976). UNDER THE PROVISIONS OF 28 U.S.C. SEC. 2672 THE HEAD OF EACH FEDERAL AGENCY OR HIS DESIGNEE IS AUTHORIZED TO CONSIDER AND SETTLE ANY TORT CLAIM AGAINST THAT AGENCY. SETTLEMENTS MADE UNDER 28 U.S.C. SEC. 2672 ARE "FINAL AND CONCLUSIVE." THEREFORE, THIS TYPE OF CLAIM IS ONE OF THOSE FOR WHICH SETTLEMENT AUTHORITY HAS BEEN DELEGATED ELSEWHERE, AND OUR OFFICE HAS NO AUTHORITY TO EITHER CONSIDER THE MERITS OF THIS CLAIM OR REVIEW SETTLEMENTS MADE UNDER THOSE PROVISIONS.

ACCORDINGLY, SINCE MR. POWERS' CLAIM IS NOT WITHIN THE SETTLEMENT AUTHORITY OF THIS OFFICE, IT IS OUR OPINION THAT IT IS NOT APPROPRIATE FOR US TO CONSIDER IT FOR SUBMISSION TO THE CONGRESS AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF 31 U.S.C. SEC. 236.

Jan 14, 2021

Jan 13, 2021

Looking for more? Browse all our products here