B-180994, JUN 12, 1974

B-180994, JUN 12, 1974

CLAIM UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, AS AMENDED, 31 U.S.C. 240-243, FOR LOSS DUE TO THEFT OF FORMER EMPLOYEE'S BICYCLE USED TO COMMUTE TO WORK AND PARKED IN AGENCY GARAGE IS NOT WITHIN JURISDICTION OF GAO SETTLEMENT AUTHORITY BUT IS FOR CONSIDERATION BY EMPLOYING AGENCY (ENVIRONMENTAL PROTECTION AGENCY).

TO MR. MARCUS W. PUGH:

THIS DECISION TO MR. MARCUS W. PUGH, CERTIFYING OFFICER, ENVIRONMENTAL PROTECTION AGENCY (EPA), IS IN RESPONSE TO HIS REQUEST OF MARCH 28, 1974, FOR AN ADVANCE DECISION AS TO WHETHER A CLAIM FOR LOSS DUE TO THE THEFT OF A FORMER EMPLOYEE'S BICYCLE SHOULD BE PAID.

THE RECORD SHOWS THAT THE FORMER EMPLOYEE COMMUTED TO WORK AT EPA BY PERSONALLY OWNED BICYCLE. THE BICYCLE WAS PARKED IN THE BICYCLE RACK PROVIDED BY THE AGENCY IN THE FEDERALLY LEASED GARAGE. THE EMPLOYEE SECURED THE BICYCLE TO THE RACK EACH DAY WITH A BICYCLE CHAIN AND LOCK. ON OCTOBER 3, 1972, THE CHAIN WAS CUT AND THE BICYCLE STOLEN. THE EMPLOYEE PRESENTED A CLAIM FOR $91.80 WHICH WAS APPROVED BY THE EPA CLAIMS OFFICER PURSUANT TO THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. 240-243.

THE CERTIFYING OFFICER HAS DOUBT AS TO THE VALIDITY OF PAYMENT SINCE THE BICYCLE WAS USED AS AN ALTERNATIVE MODE OF TRANSPORTATION IN LIEU OF A MOTOR VEHICLE THE LOSS OF WHICH IS EXCLUDED FROM EPA REGULATIONS, AND BECAUSE IN HIS VIEW A BICYCLE PARKED IN A FEDERALLY LEASED GARAGE IS NOT IN POSSESSION OF THE EMPLOYEE WHILE PERFORMING SERVICE FOR THE GOVERNMENT.

SECTION 3(A) OF PUBLIC LAW 88-558, APPROVED AUGUST 31, 1964, 78 STAT. 767, AS AMENDED BY SECTION 3(B) OF PUBLIC LAW 89-185, APPROVED SEPTEMBER 15, 1965, 79 STAT. 789, 31 U.S.C. 241(B), SUPPLEMENT IV, READS, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM THE UNITED STATES CODE):

"(1) SUBJECT TO ANY POLICIES THE PRESIDENT MAY PRESCRIBE TO EFFECTUATE THE PURPOSES OF THIS SUBSECTION AND UNDER SUCH REGULATIONS AS THE HEAD OF AN AGENCY *** MAY PRESCRIBE, HE OR HIS DESIGNEE MAY SETTLE AND PAY A CLAIM ARISING *** AGAINST THE UNITED STATES FOR NOT MORE THAN $6,500 MADE BY A MEMBER OF THE UNIFORMED SERVICES UNDER THE JURISDICTION OF THAT AGENCY OR BY A CIVILIAN OFFICER OR EMPLOYEE OF THAT AGENCY FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE. IF THE CLAIM IS SUBSTANTIATED AND THE POSSESSION OF THAT PROPERTY IS DETERMINED TO BE REASONABLE, USEFUL, OR PROPER UNDER THE CIRCUMSTANCES, THE CLAIM MAY BE PAID ***."

31 U.S.C. 242 READS AS FOLLOWS:

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE SETTLEMENT OF A CLAIM UNDER SECTIONS 240 TO 243 IS FINAL AND CONCLUSIVE."

IT WOULD APPEAR TO US TO BE AT LEAST QUESTIONABLE AS TO WHETHER THE THEFT OF AN EMPLOYEE'S BICYCLE FROM A GARAGE EITHER FEDERALLY OWNED OR LEASED AND IN WHICH HE WAS PERMITTED TO LEAVE HIS BICYCLE, APPARENTLY FOR HIS OWN CONVENIENCE IN COMMUTING TO WORK, IS SUCH A LOSS OF PERSONAL PROPERTY INCIDENT TO HIS SERVICE AS WOULD BE CONTEMPLATED BY THE ACT.

HOWEVER, IN VIEW OF THE PROVISIONS OF PUBLIC LAW 88-558, AS AMENDED, IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO CONSIDER CLAIMS FOR DAMAGES FOR LOSS OF, OR DAMAGE TO, PERSONAL PROPERTY OF EMPLOYEES OF THE ENVIRONMENTAL PROTECTION AGENCY. IN THE ABSENCE OF ANY OVERALL POLICIES PRESCRIBED BY THE PRESIDENT PURSUANT TO SECTION 3(A) OF THE ACT, ANY SUCH CLAIM IS FOR CONSIDERATION BY THE HEAD OF THE AGENCY OR HIS DESIGNEE, AND, IN ACCORDANCE WITH THE TERMS OF THE ACT, SETTLEMENT OF A CLAIM UNDER ITS PROVISIONS WOULD BE FINAL AND CONCLUSIVE.