B-132562, AUG. 30, 1957

B-132562, AUG. 30, 1957

TO MR. KENT D. CURRIE:

YOUR LETTER OF JUNE 29, 1957, QUESTIONS THE CORRECTNESS OF OUR OFFICE SETTLEMENT OF JUNE 12, 1957, CONCERNING YOUR CLAIM FOR ADDITIONAL INDEMNITY FOR AN ALLEGED PUREBRED COW DESTROYED AS A BRUCELLOSIS REACTOR. ALSO WE HAVE YOUR LETTER OF AUGUST 3, 1957, REGARDING THIS MATTER.

UNDER SECTION 11 OF THE ACT OF MAY 29, 1884, 23 STAT. 31, AS AMENDED, 21 U.S.C. 114A, THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO CONTROL AND ERADICATE BRUCELLOSIS OF DOMESTIC ANIMALS WHICH THREATEN THE LIVESTOCK INDUSTRY OF THE COUNTRY THROUGH THE DESTRUCTION OF THE DISEASED ANIMALS AND TO PAY INDEMNITIES FOR THE ANIMALS SO DESTROYED IN ACCORDANCE WITH REGULATIONS HE IS AUTHORIZED TO PRESCRIBE. THE REGULATIONS ISSUED BY THE SECRETARY, IN EFFECT AT THE TIME OF SLAUGHTER, WHICH HAVE THE FORCE AND EFFECT OF LAW ARE CONTAINED IN BUREAU OF ANIMAL INDUSTRY ORDER 375 REVISED, AND ITS AMENDMENTS, 18 F.R. 7489, 9 C.F.R. PART 51.

THE REGULATIONS PROVIDE:

"OWNERS OF CATTLE WHICH ARE DESTROYED BECAUSE OF BRUCELLOSIS * * * MAY BE PAID AN INDEMNITY BY THE DEPARTMENT FOR EACH ANIMAL SO DESTROYED NOT TO EXCEED ONE-THIRD OF THE DIFFERENCE BETWEEN THE APPRAISED VALUE OF THE ANIMAL AND THE SALVAGE VALUE THEREOF * * * PROVIDED, HOWEVER, THAT NO SUCH PAYMENT FOR CATTLE DESTROYED SHALL EXCEED $25 FOR ANY GRADE ANIMAL OR $50 FOR ANY PUREBRED ANIMAL * * *. (9 C.F.R. 51.2)

"CATTLE TO BE DESTROYED BECAUSE OF BRUCELLOSIS * * * SHALL BE APPRAISED BY A BRANCH OR STATE REPRESENTATIVE. WHEN THUS APPRAISED, DUE CONSIDERATION SHALL BE GIVEN TO THEIR BREEDING VALUE AS WELL AS TO THEIR DAIRY OR MEAT VALUE. CATTLE PRESENTED FOR APPRAISAL AS PUREBRED SHALL BE ACCOMPANIED BY THEIR REGISTRATION PAPERS AT THE TIME OF THEIR APPRAISAL OR THEY SHALL BE APPRAISED AS GRADE CATTLE: PROVIDED, HOWEVER, THAT IF REGISTRATION PAPERS ARE TEMPORARILY NOT AVAILABLE, OR IF THE CATTLE ARE LESS THAN THREE YEARS OLD AND UNREGISTERED, THE APPROPRIATE VETERINARIAN IN CHARGE MAY GRANT A REASONABLE TIME FOR THE PRESENTATION OF THEIR REGISTRATION PAPERS TO THE APPRAISER OR TO THE VETERINARIAN IN CHARGE.' (9 C.F.R. 51.4)

THE DEPARTMENT OF AGRICULTURE'S REPORTS INDICATES NO REGISTRATION PAPERS WERE PRESENTED AT THE TIME YOUR CATTLE WERE APPRAISED; NOR WAS AN APPLICATION MADE UNDER THE PROVISO CLAUSE FOR A REASONABLE EXTENSION OF TIME WITHIN WHICH TO PRESENT THE PAPERS. ALSO, THE DEPARTMENT REPORTS THAT A REASONABLE EXTENSION OF TIME MAY, IN NO CASE, EXTEND BEYOND THE DATE OF SLAUGHTER. THEREFORE, THE CATTLE PROPERLY WERE APPRAISED AS GRADE ANIMALS.

THE RECORD FURTHER SHOWS THAT YOUR TWO ANIMALS WERE APPRAISED AT $215 AND $225 RESPECTIVELY AND WE NOTE THAT ON YOUR INDEMNITY CLAIM YOU CERTIFIED YOU ACCEPTED THOSE APPRAISALS. ALSO, THROUGH SALE OF THE SLAUGHTERED CATTLE, SALVAGE OF $145.08 AND $132.33 WAS OBTAINED. THE DIFFERENCE BETWEEN THE APPRAISED AND SALVAGE VALUE OF THE CATTLE WAS $69.92 AND $92.67 RESPECTIVELY AND THE OBLIGATION OF THE UNITED STATES WAS TO PAY AS INDEMNITY ONE-THIRD OF SUCH DIFFERENCE (NOT IN EXCESS OF $25.00 FOR EACH ANIMAL) OR $23.30 AND $25.00 RESPECTIVELY OR A TOTAL OF $48.30. A CHECK FOR THAT AMOUNT WAS FORWARDED TO YOU PURSUANT TO OUR OFFICE SETTLEMENT AND NO ADDITIONAL AMOUNT IS DUE YOU.

THE FACT THAT YOU MAY NOT HAVE BEEN FULLY INFORMED OF THE REGULATIONS AT THE TIME YOUR CATTLE WERE DESTROYED, THAT YOU WERE NOT NOTIFIED IN ADVANCE OF THE TIME OF THE APPRAISAL, OR THAT YOU MAY HAVE BEEN ABLE TO PRODUCE WITHIN A REASONABLE PERIOD PRIOR TO THE SLAUGHTER REGISTRATION PAPERS TO SHOW ONE OF THE ANIMALS DESTROYED WAS PUREBRED, IF YOU HAD KNOWN OF THE REGULATIONS, IS NOT CONTROLLING IN THE DISPOSITION OF YOUR CLAIM FOR INDEMNITY. THE PUBLICATION IN THE FEDERAL REGISTER OF SUCH REGULATION WAS NOTICE TO ALL WHO SEEK SUCH INDEMNITY REGARDLESS OF THEIR ACTUAL KNOWLEDGE OF WHAT IS IN THE REGULATION OR OF HARDSHIP RESULTING FROM INNOCENT IGNORANCE. 44 U.S.C. 307; FEDERAL CROP INS. CORP. V. MERRILL, 332 U.S. 380. YOUR ONLY RIGHT TO INDEMNITY ARISES FROM THE REGULATIONS OF THE SECRETARY OF AGRICULTURE ISSUED PURSUANT TO LAW AND THE AMOUNT OF THE CHECK FORWARDED TO YOU REPRESENTS THE FULL AMOUNT DUE THEREUNDER.

OUR SETTLEMENT THUS APPEARS CORRECT AND IS SUSTAINED. CHECK NO. 5,193 WHICH YOU RETURNED WITH YOUR REQUEST FOR REVIEW OF THE SETTLEMENT IS ATTACHED AND IT MAY BE NEGOTIATED THROUGH THE USUAL BANKING CHANNELS.