B-167330, SEP. 24, 1969

B-167330, SEP. 24, 1969

MILITARY - TRANSPORTATION - NONDEPENDENTS DECISION TO RETIRED AIR FORCE MEMBER SUSTAINING HOLDING IN B-167330, JULY 17, 1969, THAT MEMBER IS LIABLE FOR TRANSPORTATION OF DAUGHTER OVER 21 YEARS OF AGE AND GRANDCHILDREN ON SPACE-AVAILABLE COMMERCIAL TRANSPORTATION FROM JAPAN TO TRAVIS AIR FORCE BASE.

TO CWO-4 ALLAN A. SAMSON, USAF (RET.):

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1969, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU FOR TRANSPORTATION FURNISHED YOUR DAUGHTER AND HER TWO CHILDREN FROM TACHIKAWA AIR FORCE BASE, JAPAN, TO TRAVIS AIR FORCE BASE, CALIFORNIA, ON JULY 2, 1969. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED MAY 13, 1969, AND SUCH ACTION WAS SUSTAINED BY DECISION TO YOU OF JULY 17, 1969, B-167330.

IN THAT DECISION YOU WERE ADVISED THAT SINCE YOUR DAUGHTER AND HER CHILDREN WERE NOT YOUR DEPENDENTS YOU WERE NOT ENTITLED TO THEIR TRANSPORTATION ON A SPACE-REQUIRED BASIS, AND THE FACT THAT SUCH TRANSPORTATION HAD BEEN FURNISHED DUE TO AN ERROR BY PERSONNEL HANDLING THE FLIGHT ARRANGEMENTS DID NOT ENTITLE YOU TO REFUND OF THE AMOUNT COLLECTED FROM YOU AS THE COST OF THE TRANSPORTATION. IN THIS CONNECTION WE POINTED OUT THAT IT LONG HAS BEEN HELD THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR THE NONFEASANCE, MISFEASANCE OR NEGLIGENCE OF ITS OFFICERS, EMPLOYEES, OR AGENTS, CITING GERMAN BANK V UNITED STATES, 148 U.S. 573, AND ROBERTSON V SICHEL, 127 U.S. 507.

IN YOUR PRESENT LETTER YOU SAY THAT AFTER THE TRANSPORTATION WAS FURNISHED THE AIR FORCE FORCED YOU TO REMIT THE COST TO COVER THE ERROR. YOU PROTEST SUCH ACTION AND POINT OUT THAT WHEN THE CLAIM WAS SUBMITTED HERE THE AIR FORCE RECOMMENDED PAYMENT. ALSO, SINCE WE SAID THAT THE LAW DEFINES "DEPENDENT" FOR TRANSPORTATION PURPOSES TO INCLUDE AN UNMARRIED CHILD UNDER 21 YEARS OF AGE AND MENTIONED THAT YOUR DAUGHTER (MRS. HOPKINS) WAS OVER 21 YEARS OF AGE WHEN SHE JOINED YOU OVERSEAS, YOU SAY THAT SHE JOINED YOU IN AUGUST 1967 AND DID NOT BECOME 21 UNTIL THE NEXT MONTH. IN ADDITION, YOU QUESTION THE EXISTENCE OF A LEGAL INTERPRETATION THAT EXCUSES ACTS OF NEGLIGENCE ON THE PART OF EMPLOYEES AND TRANSFERS THE RESULTANT COSTS TO PERSONS INNOCENT OF NEGLIGENCE IN THE MATTER.

THE RECORD SHOWS THAT YOUR DAUGHTER WAS BORN ON SEPTEMBER 24, 1946. THE BASIS OF YOUR STATEMENTS THAT HER HUSBAND DESERTED HER IN JULY 1967, THAT YOU BROUGHT HER TO YOUR OVERSEAS STATION AT YOUR OWN EXPENSE AND THAT A CHILD WAS BORN TO HER IN JAPAN IN JANUARY 1968, IT APPEARED THAT SHE WAS OVER 21 WHEN SHE JOINED YOU AT YOUR STATION. ALTHOUGH YOUR PRESENT STATEMENT IS THAT SHE ACTUALLY REACHED YOUR OVERSEAS STATION BEFORE HER 21ST BIRTHDAY, THIS IS NOT MATERIAL TO YOUR CLAIM SINCE AS A MARRIED CHILD SHE WAS NOT YOUR DEPENDENT AND HER CHILDREN LIKEWISE WERE NOT YOUR DEPENDENTS.

WITH RESPECT TO THE ACTION OF THE AIR FORCE IN REQUIRING YOU TO PAY FOR THE TRANSPORTATION SINCE IT SEEMS CLEAR THAT YOU WERE FURNISHED SPACE- REQUIRED COMMERCIAL TRANSPORTATION FOR TRAVEL OF YOUR DAUGHTER AND GRANDCHILDREN WHICH, UNDER THE LAW, YOU WERE NOT ENTITLED TO RECEIVE AT GOVERNMENT EXPENSE, COLLECTION OF THE COST BY THE AIR FORCE WAS PROPER.

WHILE THE AIR FORCE ACCOUNTING AND FINANCE CENTER RECOMMENDED PAYMENT OF YOUR CLAIM FOR THE REASON THAT "THE ERROR WAS BEYOND CONTROL OF THE INDIVIDUAL," AS EXPLAINED IN THE DECISION OF JULY 17, 1969, SUCH REASON DOES NOT AFFORD A LEGAL BASIS FOR PAYMENT OF A CLAIM AGAINST THE UNITED STATES.

WITH RESPECT TO YOUR LAST CONTENTION, IN CLAIMS AGAINST THE GOVERNMENT WHERE THERE IS NO ENTITLEMENT UNDER THE LAW BUT WHERE THE CLAIMANT URGES THAT HIS CLAIM SHOULD BE PAID BECAUSE OF ERRONEOUS ADVICE OR ACTIONS BY GOVERNMENT PERSONNEL, IT LONG HAS BEEN THE VIEW THAT IN THE ABSENCE OF SOME STATUTORY PROVISION SO PROVIDING SUCH ERRONEOUS ADVICE OR ACTIONS DO NOT AFFORD A BASIS FOR PAYMENT OF THE CLAIM.

THUS, REGARDLESS OF SITUATIONS OF OFFICERS AND EMPLOYEES OF THE GOVERNMENT IN THAT REGARD, WE ARE OBLIGED TO HOLD THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LEGALLY LIABLE TO CLAIMANTS AGAINST THE GOVERNMENT FOR LOSS RESULTING FROM ERRONEOUS ACTIONS OR ADVICE BY ITS OFFICERS OR EMPLOYEES.

THEREFORE, ALTHOUGH THE TRANSPORTATION WAS FURNISHED THROUGH ERROR AND YOU WERE NOT AT FAULT IN THE MATTER, WE TRUST YOU WILL UNDERSTAND THAT WE HAVE NO ALTERNATIVE BUT TO SUSTAIN OUR PRIOR ACTION.