B-130241, JAN. 15, 1957

B-130241, JAN. 15, 1957

TO DR. F. W. ROSCOE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1956, AND ENCLOSURE, RELATIVE TO OUR CLAIMS DIVISION SETTLEMENT DATED JUNE 20, 1956, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR MEDICAL AND SURGICAL SERVICES STATED TO HAVE BEEN RENDERED BY YOU TO ALLIED PRISONERS OF WAR DURING THE APPROXIMATELY TWO AND A HALF YEARS YOU WERE INTERNED IN GERMAN PRISON CAMPS FROM DECEMBER 1941 TO JUNE 1944.

IT APPEARS THAT WHILE YOU WERE ABROAD IN VIENNA FOR THE PURPOSE OF STUDYING MEDICINE AND UPON THE DECLARATION OF WORLD WAR II BETWEEN THE UNITED STATES AND GERMANY, YOU WERE INTERNED BY THE GERMANS. YOU STATE THAT THEREAFTER, AND UNTIL REPATRIATED IN 1944 YOU WERE ASSIGNED TO PERFORM AND ACTUALLY RENDERED MEDICAL AND SURGICAL SERVICES IN GERMAN INTERNMENT CAMPS IN WHICH YOU WERE DETAINED.

PURSUANT TO ARTICLE 14 OF THE CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR SIGNED AT GENEVA, SWITZERLAND, ON JULY 27, 1929, SET OUT IN OUR CLAIMS DIVISION LETTER, AND AGREEMENTS OF THE BELLIGERENTS EXTENDING THE CONVENTION TO CIVILIAN INTERNEES, THE EXPENSES OF TREATMENT OF PRISONERS OF WAR AND CIVILIAN INTERNEES WERE REQUIRED TO BE BORNE BY THE DETAINING POWER, IN YOUR CASE, GERMANY. SO FAR AS DISCLOSED BY THE RECORD, THE UNITED STATES GOVERNMENT DID NOT EMPLOY YOU TO RENDER THE SERVICES NOR DID IT EXERCISE ANY CONTROL WHATEVER OVER THE RENDITION OF THE SERVICES. THUS, WHILE AMERICAN AND OTHER ALLIED INTERNEES AND PRISONERS OF WAR MAY HAVE RECEIVED THE BENEFIT OF YOUR SERVICES, THERE APPEARS TO BE NO LEGAL OBLIGATION UPON THE UNITED STATES TO PAY FOR SUCH SERVICES.

INSOFAR AS YOU ASSERT A CLAIM FOR DAMAGES FOR THE ALLEGED IMPROPER WITHHOLDING OF A PASSPORT TO RETURN TO YOUR HOME IN THE UNITED STATES PRIOR TO THE OUTBREAK OF THE WAR, THE REPORT OF THE STATE DEPARTMENT TO US INDICATES THAT WHILE YOU WERE DENIED PASSPORT FACILITIES TO CONTINUE TO RESIDE ABROAD, YOU COULD, AT ANY TIME PRIOR TO THE OUTBREAK OF THE WAR IN DECEMBER 1941, HAVE OBTAINED A PASSPORT FOR RETURN TO THE UNITED STATES. THUS IT DOES NOT APPEAR, AS APPARENTLY ASSERTED BY YOU, THAT ANY ACTION OF AMERICAN OFFICERS OR EMPLOYEES PREVENTED YOUR RETURN TO THE UNITED STATES PRIOR TO THE DECLARATION OF WAR BETWEEN GERMANY AND THE UNITED STATES.

IN CASES WHERE, AS HERE, THE FACTS RELATING TO A CLAIM AS REPORTED BY THE ADMINISTRATIVE AGENCY CONCERNED DIFFER FROM THOSE REPORTED BY THE CLAIMANT, WE MUST NECESSARILY ACCEPT THE ADMINISTRATIVELY REPORTED FACTS IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY AND A CLEAR SHOWING OF ERROR ON THE PART OF THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT.

FURTHERMORE SUCH A CLAIM FOR DAMAGES SOUNDS IN TORT. WHILE THE JURISDICTION TO SETTLE CERTAIN TORT CLAIMS AGAINST THE UNITED STATES OCCURRING ON AND AFTER JANUARY 1, 1945, IN AN AMOUNT IN EXCESS OF $1,000 IS VESTED IN THE DISTRICT COURTS, UNDER THE FEDERAL TORT CLAIMS ACT OF AUGUST 2, 1946, 60 STAT. 842, AS AMENDED, AS TO TORTS PRIOR THERETO OR THOSE NOT ENCOMPASSED BY THE TORT CLAIMS ACT, IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT LIABLE FOR TORTS COMMITTED BY ITS OFFICERS OR AGENTS. GIBBONS V. UNITED STATES, 8 WALL. 269; BIGBY V. UNITED STATES, 188 U.S. 400; 3 COMP. DEC. 374; 1 COMP. GEN. 178. MOREOVER, THE JURISDICTION OF OUR OFFICE HAS NEVER EXTENDED TO THE ALLOWANCE OF TORT CLAIMS ARISING IN OTHER GOVERNMENT AGENCIES IN ANY AMOUNT. AS STATED IN UNITED STATES V. ST. LOUIS CLAY PRODUCTS CO., 68 F.SUPP. 902, 905, OUR OFFICE "HAS NO GENERAL AUTHORITY TO AWARD DAMAGES AS FOR TORT.'

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS NO PROPER BASIS FOR ALLOWING ANY PART OF YOUR CLAIM AND THE ACTION OF OUR CLAIMS DIVISION IN SO ADVISING YOU APPEARS CORRECT AND IS SUSTAINED.