B-177639, MAR 9, 1973

B-177639, MAR 9, 1973

CIVILIAN EMPLOYEE - CONFLICTING EVIDENCE - BURDEN OF PROOF - EXCESS SHIPMENT WEIGHT DECISION AFFIRMING THAT IRVING I. SCHIFFMAN, AN EMPLOYEE OF THE DEPARTMENT OF STATE, IS INDEBTED TO THE UNITED STATES IN AN AMOUNT REPRESENTING THE COST TO THE GOVERNMENT FOR SHIPMENT OF HOUSEHOLD GOODS IN EXCESS OF THE ALLOWABLE MAXIMUM WEIGHT. WHERE THERE IS A CONFLICT BETWEEN THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE STATED BY A CLAIMANT, GAO WILL RELY ON THE FACTS SUBMITTED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT. B-171328, FEBRUARY 2, 1971. ACCORDINGLY, SINCE THE EVIDENCE SUBMITTED BY THE CLAIMANT IN THIS CASE DOES NOT MEET THE BURDEN OF OVERCOMING THE ADMINISTRATIVE AGENCY'S DETERMINATION OF THE EXCESS WEIGHT, GAO CAN ONLY AFFIRM THIS DETERMINATION. CF. 48 COMP. GEN. 638 (1969).

TO MR. IRVING I. SCHIFFMAN:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 22, 1972, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE DETERMINATION OF OUR TRANSPORTATION AND CLAIMS DIVISION BY LETTERS DATED APRIL 26 AND AUGUST 24, 1971, THAT THE FINDING OF THE DEPARTMENT OF STATE THAT YOU WERE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $113.99 WAS CORRECT.

THE RECORD INDICATES THAT PURSUANT TO TRAVEL ORDER NO. 8-60074, DATED JUNE 2, 1967, YOU EFFECTED A CHANGE OF OFFICIAL DUTY STATION FROM WASHINGTON, D. C., TO BUCHAREST, ROMANIA. INCIDENT THERETO YOU WERE AUTHORIZED THE SHIPMENT AND/OR STORAGE OF YOUR HOUSEHOLD EFFECTS, THE AGGREGATE THEREOF NOT TO EXCEED 12,500 POUNDS NET WEIGHT.

AS STATED IN THE LETTER TO YOU OF APRIL 26, 1971, THE RECORD FURTHER REVEALS THAT YOUR ADMINISTRATIVE AGENCY REQUESTED THE AMERICAN EMBASSY IN BUCHAREST TO EFFECT COLLECTION OF $362.74 FROM YOU FOR AN EXCESS OF 3,870 POUNDS ON SHIPMENT UNDER THE SUBJECT TRAVEL ORDER. YOU PROTESTED THIS CHARGE ON JULY 29, 1968. A COMMITTEE WAS REQUESTED TO MAKE A DETERMINATION AND RECOMMEND WHAT CHARGE, IF ANY, SHOULD BE POSTED AGAINST YOUR ACCOUNT. THIS COMMITTEE ON SEPTEMBER 10, 1968, APPROVED THE ACTUAL WEIGHT OF THE HOUSEHOLD EFFECTS SHIPMENT OF 7,720 NET POUNDS BUT DEDUCTED 2,655 NET POUNDS REPRESENTING FOOD SHIPMENT, LEAVING THE AMOUNT OF 5,065 NET POUNDS AS HOUSEHOLD EFFECTS AND STORAGE ALLOWANCE OF 7,435 NET POUNDS INSTEAD OF 4,780 NET POUNDS. ON THE BASIS OF THIS DETERMINATION AS TO YOUR STORAGE ALLOWANCE, AND IN VIEW OF THE FACT THAT THE RECORD SHOWED YOU PLACED IN STORAGE 8,650 POUNDS NET, THE AMERICAN EMBASSY IN BUCHAREST WAS REQUESTED TO AMEND THE CHARGE AGAINST YOU AND REDUCE THE AMOUNT TO $113.99, BASED UPON AN EXCESS OF 1,215 POUNDS NET.

TO DATE THE RECORD SHOWS THAT YOU HAVE REFUSED TO ACCEPT THE AMENDED CHARGE, CONTENDING THAT YOUR DEPARTMENT SHOULD ACCEPT THE WEIGHT SHOWN ON THE GREEK RAILWAY COMPANY'S INVOICE AS 3,788 KGS WHICH CONVERTS TO 8,351 POUNDS GROSS. ACCEPTANCE OF THIS WEIGHT OF 8,351 POUNDS GROSS WOULD REFUTE THE DEPARTMENT'S CALCULATIONS OF THE EXCESS BASED ON U.S. GOVERNMENT BILL OF LADING NO. C-8909042 AND DA FORM 40B SHOWING THE GROSS WEIGHT AS 10,050 POUNDS (NET 7,720).

WITH REGARD TO THE DISCREPANCY BETWEEN THE WEIGHTS LISTED ON THE GOVERNMENT BILL OF LADING (10,050 POUNDS GROSS) AND THE GREEK RAILWAY COMPANY'S INVOICE (8,351 POUNDS GROSS), THE FOLLOWING STATEMENT DATED JANUARY 8, 1970, BY MR. EDWARD G. BOEHM, DIRECTOR, FINANCIAL SERVICES, WAS NOTED IN OUR LETTER TO YOU OF AUGUST 24, 1971:

*** IF YOU EXAMINE THE U.S. GOVERNMENT BILL OF LADING (C-8909042) AND FORM DA-40B ATTACHED, YOU WILL FIND THAT CASES NUMBERED 1, 2, AND 6 WEIGHED 8,350 POUNDS GROSS, CASES NUMBERED 3, 4, AND 5 WEIGHED 1,700 POUNDS GROSS. IT IS A NORMAL PROCEDURE TO STAMP THE GROSS WEIGHT ON THE OUTSIDE OF THE CASE WHEN PACKED FOR EXPORT. THESE WEIGHTS ARE ALSO SHOWN ON THE HELLENIC LINE OCEAN BILL OF LADING WHICH YOU APPARENTLY HAVE AT THIS TIME.

AS STATED IN MY LETTER TO YOU DATED NOVEMBER 27, 1968, THE GREEK RAILWAY COMPANY EVIDENTLY DID NOT WEIGH THREE (3) OF THESE CASES OR AT LEAST DID NOT SHOW THE WEIGHT ON THEIR INVOICE. THE 3,788 KGS CONVERTS TO 8,351 POUNDS AND OBVIOUSLY RELATES TO CASES 1, 2, AND 6 ABOVE.

THE FOREGOING STATEMENT ESSENTIALLY FORMS THE BASIS FOR THE POSITION WHICH HAS BEEN TAKEN BY THE DEPARTMENT OF STATE, THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $113.99 FOR HOUSEHOLD EFFECTS STORED AND/OR SHIPPED IN EXCESS OF THE 12,500 POUND NET ALLOWANCE. ACCORDINGLY, THE DEPARTMENT HAS CHOSEN NOT TO ACCEPT AS CONTROLLING THOSE CONFLICTING FACTS WHICH YOU HAVE ASSERTED (THE GREEK RAILWAY COMPANY INVOICE) AS WOULD INDICATE A LESSER AMOUNT OF HOUSEHOLD AFFECTS WAS SHIPPED TO THE NEW DUTY STATION AT BUCHAREST.

IN INSTANCES IN WHICH THERE IS A CONFLICT BETWEEN THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE STATED BY A CLAIMANT, IT HAS LONG BEEN THE ESTABLISHED RULE OF THIS OFFICE TO RELY ON THE REPORT OF THE FACTS SUBMITTED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE REPORT. B-171328, FEBRUARY 2, 1971, COPY ENCLOSED.

WHILE IT MAY BE THAT THE PROPRIETY OF A CLAIM SUCH AS THE PRESENT ONE COULD BE ESTABLISHED BY CIRCUMSTANTIAL EVIDENCE, AS URGED IN YOUR LETTER OF AUGUST 22, 1972, WE ARE OF THE OPINION THAT THE EVIDENCE WHICH YOU HAVE FURNISHED IS INSUFFICIENT TO OVERCOME THE PRIMA FACIE CASE IN FAVOR OF THE GOVERNMENT. BUT SINCE OUR PROCEEDINGS OBVIOUSLY ARE NOT COMPARABLE TO JUDICIAL PROCEEDINGS, WE DO NOT SETTLE CLAIMS AND MAKE DETERMINATIONS SUBJECT TO A "PREPONDERANCE OF THE EVIDENCE," EXCEPT AS THAT TERM MAY BE EQUATED WITH CLEAR AND CONVINCING PROOF. SUCH PROOF MUST BE PLAIN AND CONVINCING BEYOND REASONABLE CONTROVERSY THAT THE DEPARTMENT OF STATE AND THE RECORDS UPON WHICH IT HAS RELIED ARE IN ERROR.

THE EVIDENCE YOU HAVE SUBMITTED DOES NOT, IN OUR OPINION, REMOVE ALL REASONABLE DOUBT AS TO THE PROPRIETY OF REVERSING THE ACTION TAKEN BY THE DEPARTMENT (AS WELL AS OUR TRANSPORTATION AND CLAIMS DIVISION). BECAUSE OF THIS DOUBT WE DECLINE NOW TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE DEPARTMENT OFFICIALS WHO WERE THEN IN THE BEST POSITION TO INVESTIGATE AND DETERMINE THE RIGHTS AND OBLIGATIONS OF THE PARTIES. OUR DECLINATION IS PREDICATED ON A FURTHER REVIEW OF THE AVAILABLE RECORD WHICH WE FEEL SUPPORTS THE DETERMINATION MADE BY THE DEPARTMENT OF STATE. CF. 48 COMP. GEN. 638 (1969).

ACCORDINGLY, ON THE BASIS OF THE FOREGOING, THE DETERMINATION REACHED BY OUR TRANSPORTATION AND CLAIMS DIVISION IS HEREBY SUSTAINED.