B-24747, JUNE 1, 1942, 21 COMP. GEN. 1071

B-24747, JUNE 1, 1942, 21 COMP. GEN. 1071

PRIVATE PROPERTY - DAMAGES CAUSED BY OR TO AUTOMOBILES OPERATED ON MILEAGE BASIS BY GOVERNMENT EMPLOYEES AN ACCIDENT CAUSED BY A GOVERNMENT EMPLOYEE WHO WAS OPERATING A PRIVATELY OWNED AUTOMOBILE ON A MILEAGE BASIS AT THE TIME OF THE ACCIDENT AND WHO, THEREFORE, HAD THE DUTIES AND LIABILITIES OF A PRIVATE DRIVER, MAY NOT BE CONSIDERED AS HAVING BEEN CAUSED BY THE GOVERNMENT, AND THERE IS NO AUTHORITY UNDER A STATUTORY PROVISION AUTHORIZING ADMINISTRATIVE SETTLEMENT OF CLAIMS FOR DAMAGES TO PRIVATE PROPERTY RESULTING FROM NEGLIGENCE OF EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, FOR CONSIDERATION OF A CLAIM FOR DAMAGES SO CAUSED, WHETHER OR NOT THE CLAIMANT, ALSO, IS A GOVERNMENT EMPLOYEE. THE STATUTORY AUTHORITY OF THE ADMINISTRATOR OF THE NATIONAL YOUTH ADMINISTRATION TO SETTLE CERTAIN CLAIMS FOR PRIVATE PROPERTY DAMAGE RESULTING FROM THE NEGLIGENCE OF THE ADMINISTRATION'S EMPLOYEES INCLUDES AUTHORITY TO SETTLE THE CLAIM OF AN EMPLOYEE OF THE ADMINISTRATION FOR DAMAGE TO A PRIVATELY OWNED AUTOMOBILE, WHICH WAS BEING USED FOR OFFICIAL TRAVEL ON A MILEAGE BASIS, CAUSED BY THE NEGLIGENCE OF ANOTHER EMPLOYEE OF THE ADMINISTRATION ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT, PROVIDED THE EMPLOYEE CAUSING THE ACCIDENT WAS NOT HIMSELF OPERATING AN AUTOMOBILE ON A MILEAGE BASIS AT THE TIME. 20 COMP. GEN. 339, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JUNE 1, 1942:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1942, AS FOLLOWS:

PARAGRAPH 21 OF THE NATIONAL YOUTH ADMINISTRATION APPROPRIATION ACT OF 1942 PROVIDES:

"THE NATIONAL YOUTH ADMINISTRATOR, SUBJECT TO THE APPROVAL OF THE FEDERAL SECURITY ADMINISTRATOR, IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY FROM THE APPROPRIATION IN PARAGRAPH 1 ANY CLAIM ARISING OUT OF OPERATIONS THEREUNDER ACCRUING AFTER JUNE 30, 1941, ON ACCOUNT OF DAMAGE TO, OR LOSS OF, PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE OF THE NATIONAL YOUTH ADMINISTRATION, WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. NO CLAIM SHALL BE CONSIDERED HEREUNDER WHICH IS IN EXCESS OF $500 OR WHICH IS NOT PRESENTED IN WRITING WITHIN ONE YEAR FROM THE DATE OF ACCRUAL THEREOF. ACCEPTANCE BY A CLAIMANT OF THE AMOUNT ALLOWED ON ACCOUNT OF HIS CLAIM SHALL BE DEEMED TO BE IN FULL SETTLEMENT THEREOF, AND THE ACTION UPON SUCH CLAIM SO ACCEPTED BY THE CLAIMANT SHALL BE CONCLUSIVE.'

THE NATIONAL YOUTH ADMINISTRATOR HAS BEFORE HIM FOR CONSIDERATION A CLAIM FOR DAMAGE TO A PRIVATELY OWNED AUTOMOBILE ARISING OUT OF AN ACCIDENT CAUSED BY THE NEGLIGENCE OF AN EMPLOYEE OF THE NATIONAL YOUTH ADMINISTRATION, WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. AT THE TIME OF THE ACCIDENT THE CLAIMANT, WHO WAS ALSO AN EMPLOYEE OF THE NATIONAL YOUTH ADMINISTRATION, WAS TRAVELING IN HER PRIVATELY OWNED AUTOMOBILE ON A MILEAGE BASIS UNDER A TRAVEL AUTHORIZATION PROPERLY ISSUED IN ACCORDANCE WITH PARAGRAPH 12 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

YOU AND YOUR PREDECESSORS APPEAR TO HAVE CONSISTENTLY HELD THAT THE PAYMENT OF MILEAGE FOR THE USE OF A PRIVATELY OWNED AUTOMOBILE COMMUTES EVERY EXPENSE, INCLUDING REPAIRS DUE TO HAZARDS OF THE WEATHER OR TO ACCIDENTS. (7 COMP. GEN. 284, 15 ID. 76, ID. 735, 19 ID. 39, B-20763, RENDERED DECEMBER 2, 1941.) HOWEVER, NONE OF THESE DECISIONS HAVE BEEN PREDICATED ON A SITUATION WHEREIN THE DAMAGE TO THE CLAIMANT EMPLOYEE'S CAR WAS CAUSED BY THE NEGLIGENCE OF ANOTHER GOVERNMENT EMPLOYEE WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT, NOR, WITH THE POSSIBLE EXCEPTION OF CERTAIN LANGUAGE IN THE LAST PARAGRAPH OF A DECISION RENDERED JANUARY 2, 1941 (20 COMP. GEN. 339), DOES THIS SITUATION EVER APPEAR TO HAVE BEEN DISCUSSED.

IN THE ABSENCE OF A DEFINITE DETERMINATION ON THIS POINT, THE NATIONAL YOUTH ADMINISTRATOR HAS REQUESTED THAT YOUR DECISION BE SOLICITED ON THE QUESTION WHETHER A CLAIM OF THIS TYPE (WHEREIN THE GOVERNMENT ITSELF IS A TORT FEASOR) IS FOR CONSIDERATION UNDER PARAGRAPH 21 OF THE ACT REFERRED TO ABOVE, AND, IF OTHERWISE PROPER, WHETHER SUCH CLAIM MAY BE PAID FROM THE APPROPRIATION MADE BY THAT ACT.

TRAVEL ON A MILEAGE BASIS WAS THE SPECIFIC SUBJECT OF THE DECISION OF DECEMBER 2, 1941, WHICH YOU CITE (21 COMP. GEN. 507), WHERE, FOR REASONS THERE STATED IN DETAIL, IT WAS CONCLUDED,"IN OTHER WORDS, IN THE MILEAGE ARRANGEMENT THE EMPLOYEE SUBSTITUTES HIMSELF FOR THE COMMON CARRIER USUALLY EMPLOYED, AND, AS IN THE CASE OF A COMMON CARRIER, THE LEGAL INCIDENCE OF SUCH TRANSPORTATION--- REFERRING BOTH TO THE POWER OF CONTROL AND THE LIABILITY FOR RESULTS--- WOULD SEEM TO FALL UPON THE EMPLOYEE, AND NOT UPON THE GOVERNMENT.' BASED UPON SUCH PREMISES IT WOULD FOLLOW THAT AN ACCIDENT CAUSED BY SUCH A TRAVELER WAS NOT CAUSED BY THE GOVERNMENT, AND THAT CONSIDERATION OF A CLAIM FOR DAMAGES SO CAUSED WAS NOT WARRANTED UNDER THE STATUTE IN QUESTION. SUCH CONCLUSION NECESSARILY WOULD BE REQUIRED WHETHER OR NOT THE PERSON CLAIMING PAYMENT FOR DAMAGE TO HIS PROPERTY MIGHT HAPPEN TO BE AN EMPLOYEE OF THE GOVERNMENT.

IN A CASE WHERE THE DAMAGE ACTUALLY IS CAUSED BY THE NEGLIGENCE OF A GOVERNMENT EMPLOYEE WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT (NOT CAUSED BY A TRAVELER ON A MILEAGE BASIS), IT IS SETTLED THAT THE CLAIM OF ANOTHER GOVERNMENT EMPLOYEE WHOSE PROPERTY WAS DAMAGED MAY BE CONSIDERED UPON THE SAME BASIS AS THAT OF A PRIVATE PERSON. 20 COMP. GEN. 339. IN A CASE WHERE THAT CLAIMANT IS AN OFFICIAL TRAVELER ON A MILEAGE BASIS, HIS DUTIES AND LIABILITIES ARE THOSE OF A PRIVATE DRIVER (21 COMP. GEN. 507, SUPRA); CORRESPONDINGLY, HE HAS THE SAME RIGHTS AND PRIVILEGES, INCLUDING THE PRIVILEGE OF REIMBURSEMENT FOR PROPERTY LOSS ACTUALLY CAUSED BY GOVERNMENT NEGLIGENCE, SO FAR AS PROVIDED BY THE STATUTE QUOTED IN YOUR LETTER, BUT THE DAMAGE MUST RESULT FROM THE NEGLIGENCE OF SOME EMPLOYEE WHO IS NOT AT THE TIME OF THE ACCIDENT OPERATING AN AUTOMOBILE ON A MILEAGE BASIS. WITH THAT RESERVATION" AND THUS AMPLIFYING THE DECISION OF JANUARY 2, 1941, 20 COMP. GEN. 339, SUPRA, YOUR QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.