B-146256, AUG. 16, 1961

TO AUTHORIZED CERTIFYING OFFICER, FEDERAL AVIATION AGENCY:

YOUR LETTER DATED JUNE 2, 1961, TRANSMITTED HERE BY LETTER OF JUNE 26 FROM THE GENERAL COUNSEL OF THE FEDERAL AVIATION AGENCY, REQUESTS A DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHERS TRANSMITTED THEREWITH IN FAVOR OF GEORGE E. BUCK, HENRY E. SPRAGUE, JACK S. HANLINE AND WALTER P. HERLL, EMPLOYEES OF THE FEDERAL AVIATION AGENCY, IN THE RESPECTIVE AMOUNTS OF $121.03, $305.27, $194.39 AND $117.48. THE VOUCHERS REPRESENT CLAIMS FOR REIMBURSEMENT OF THE COST OF PERSONALLY OWNED HAND TOOLS STOLEN WHILE STORED IN QUARTERS OCCUPIED BY THE AIRCRAFT AND AVIONICS MAINTENANCE SECTION OF THE AGENCY, FAIRFAX MUNICIPAL AIRPORT, KANSAS CITY, KANSAS.

EACH VOUCHER IS SUPPORTED BY A STATEMENT BY THE CLAIMANT, APPROVED BY THE ACTING SUPERINTENDENT OF MAINTENANCE, AIRCRAFT AND AVIONICS MAINTENANCE SECTION OF THE FACILITY, SETTING FORTH THE CAPACITY IN WHICH THE CLAIMANT IS EMPLOYED, NAMELY, AIRCRAFT MECHANIC; THE FACT THAT CLAIMANT WAS EMPLOYED WITH THE UNDERSTANDING THAT HE WOULD FURNISH HIS OWN HAND TOOLS; THAT DUE TO THE NUMBER OF TOOLS INVOLVED AND THE INCONVENIENCE OF TRANSPORTING THEM EACH DAY FROM HIS HOME TO THE FACILITY THE TOOLS WERE STORED AFTER WORK HOURS IN ROLL-A-WAY TOOL BOXES KEPT IN THE MAIN HANGER IN AREAS DESIGNATED THEREFOR BY THE AGENCY; THAT THE DOOR NEAR WHICH THE TOOL BOXES WERE KEPT DID NOT HAVE A LOCK BUT WAS BARRED FROM THE INSIDE AND WAS OPENED EACH DAY FROM THE INSIDE; THAT SOMETIME ON DECEMBER 2, 3, 4, OR 5, 1960, A THIEF GAINED ENTRANCE INTO THE HANGER BY BREAKING A PANE OF GLASS IN THE DOOR AND REMOVING THE BAR WHICH BLOCKED THE DOOR; AND THAT THE THIEF STOLE THE TOOLS FROM THE TOOL BOXES AND TO DATE HAS NOT BEEN APPREHENDED. THERE IS ATTACHED, ALSO, TO EACH VOUCHER AN ITEMIZED LIST OF THE TOOLS STOLEN AND THE COST THEREOF FOR WHICH REIMBURSEMENT IS CLAIMED.

YOU STATE THAT THE REGIONAL COUNSEL OF THE AGENCY HAS DETERMINED THAT THE GOVERNMENT CANNOT LEGALLY REPLACE THE STOLEN HAND TOOLS. ALSO, YOU STATE THAT IN VIEW OF THE FACT THERE WAS AN UNDERSTANDING AT THE TIME THE EMPLOYEES WERE HIRED THAT THEY WOULD FURNISH THEIR OWN HAND TOOLS, AND THAT THEFT OF THE TOOLS WAS THROUGH NO NEGLIGENCE ON THEIR PART, IT WOULD APPEAR EQUITABLE THAT THEY SHOULD BE REIMBURSED FOR THE COST OF THE TOOLS. THE GENERAL COUNSEL OF THE AGENCY IN HIS TRANSMITTAL LETTER OF JUNE 26 EXPRESSES CONCURRENCE IN YOUR SUGGESTION FOR EQUITABLE RELIEF OF THE EMPLOYEES.

THE FACTS AS REPORTED INDICATE THAT THE CLAIMANTS WERE REQUIRED, UNDER THE TERMS OF THEIR EMPLOYMENT, TO FURNISH THEIR OWN HAND TOOLS AND THAT THEY VOLUNTARILY STORED THE TOOLS AFTER WORK HOURS IN A PLACE OF SEEMING SECURITY PROVIDED BY THE GOVERNMENT. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE GOVERNMENT THEREBY ACCEPTED POSSESSION OF THE TOOLS OR OTHERWISE BECAME AN INSURER THEREOF. THE LOSS OF THE TOOLS ATTRIBUTABLE SOLELY TO THE CRIMINAL ACT OF A THIEF BREAKING INTO AND ENTERING THE PREMISES, WHEREIN OTHER EQUIPMENT OWNED BY THE GOVERNMENT PRESUMABLY WAS KEPT, AFFIRMATIVELY SHOWS THE LACK OF ANY NEGLIGENCE ON THE PART OF THE GOVERNMENT WITH RESPECT TO EITHER THE TOOLS OR THE BUILDING AND, THEREFORE, NEGATIVES ANY LIABILITY OR OBLIGATION ON THE PART OF THE GOVERNMENT FOR PROPERTY STOLEN WHILE STORED UNDER SUCH CIRCUMSTANCES.

WHILE THE CONGRESS HAS SEEN FIT TO LEGISLATE CONCERNING LOSS OF, OR DAMAGE TO, PROPERTY OF EMPLOYEES OF THE MILITARY DEPARTMENTS, 10 U.S.C. 2732, THERE IS NO STATUTE WHICH SPECIFICALLY IMPOSES ON THE UNITED STATES ANY LIABILITY FOR THE PAYMENT OF CLAIMS SUCH AS HERE INVOLVED, AND CONSEQUENTLY NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF SUCH CLAIMS BY THIS OFFICE. MOREOVER, UNDER THE WELL-SETTLED PRINCIPLE OF LAW THAT AN EMPLOYEE ASSUMES CERTAIN RISKS OF EMPLOYMENT OR RISKS UNDER WHICH HIS PROPERTY MAY HAVE BEEN VOLUNTARILY PLACED BY HIM DURING THE COURSE OF SUCH EMPLOYMENT, WE HAVE NEVER VIEWED CASES SIMILAR TO THE ONE UNDER CONSIDERATION AS CONTAINING SUCH ELEMENTS OF LEGAL OR EQUITABLE LIABILITY ON THE UNITED STATES, AS WOULD JUSTIFY THE SUBMISSION THEREOF TO THE CONGRESS FOR ITS CONSIDERATION PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

YOU ARE ACCORDINGLY ADVISED THAT THE SUBJECT VOUCHERS, WHICH WILL BE RETAINED HERE, MAY NOT BE CERTIFIED.