Shull v. United States

228 Ct. Cl. 750, 1981 U.S. Ct. Cl. LEXIS 649, 1981 WL 21476
CourtUnited States Court of Claims
DecidedJuly 10, 1981
DocketNos. 16-, 332-, 333-, 352-, 356- and 409-78
StatusPublished
Cited by17 cases

This text of 228 Ct. Cl. 750 (Shull v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shull v. United States, 228 Ct. Cl. 750, 1981 U.S. Ct. Cl. LEXIS 649, 1981 WL 21476 (cc 1981).

Opinion

The above-numbered cases between the same plaintiff and defendant were consolidated by order of the trial judge and are now before this court on cross-motions for summary judgment. There is no issue of material fact. We hold in defendant’s favor and dismiss all petitions.

Plaintiff, John C. Shull, a United States citizen residing in the Philippines, brings these six pro se actions against the United States seeking a total of $21,923.27. The parties have apparently agreed to consolidation and disposition by summary judgment in light of the common issues involved and plaintiffs residence in the Philippines. For simplicity’s sake, we have dealt with each case as a separate matter in [751]*751Sections A through F of this order. Each section contains the facts as we find them and the disposition of the petition. Although both plaintiff and defendant offer several theories to support their respective summary judgment motions, we deem it necessary to discuss only the following ones.

A. No. 16-78

Costs of Shipping Professional Books

On June 26, 1972, plaintiff Shull was separated from active duty with the United States Army in Saigon, Republic of Vietnam. For the two months prior to separation, plaintiff was an Assistant Mortuary Officer. Before that, plaintiff was a Plans, Policy and Research Officer for the Joint United States Public Affairs Office (JUSPAO). JUSPAO apparently handled routine administrative and liaison matters for military personnel. At the time his active duty ended, plaintiff requested and received authorization to ship 2,000 pounds of goods in excess of his baggage allowance of 600 pounds.

Almost a year after his separation from the Army, plaintiff requested authorization to ship an additional 8,000 pounds of "professional” books at Army expense. The Army apparently denied this request in May 1973 and at least once again in April 1975 when plaintiff resubmitted his request. In the interim, plaintiff conducted extensive correspondence with the Army and members of Congress to gain approval of his claim. Shortly after the April 1975 denial, plaintiff shipped the materials at his own expense.

Plaintiff filed a claim with the Army Finance Center in June 1975 seeking reimbursement of the shipping costs, $2,054.40. The United States General Accounting Office (GAO) denied plaintiffs claim in July 1976. That decision was sustained by the Comptroller General in December 1976. Upon plaintiffs urgings, the GAO reconsidered the claim in 1977 but reached the same result. On January 11, 1978, plaintiff filed the petition in No. 16-78 seeking $4,408.18 for shipping costs, related personal expenses, and the costs of prosecuting his claim.

[752]*752Together, 37 U.S.C. § 406 (1970)1 and Paragraph M8000-6, volume 1 of the Joint Travel Regulations (JTR) (June 1, 1972), entitle service personnel to transportation of household goods upon discharge or separation from service. Additionally, 1 JTR Paragraph M8004 (April 1,1976) allows such personnel to ship at Government expense certain professional books, papers, and equipment necessary to perform official duties.

The relevant departmental regulation, Army Regulation (AR) 55-71 (May 1, 1972), provides in Paragraph 5-2a that military personnel must certify that such a shipment contains only items necessary in the performance of official duties. That regulation further provides that at the time a member makes application for shipment, a listing of claimed items be supplied and that the transportation officer must satisfy himself that only items qualifying as professional items are included in the weight cited in the itemization, since this weight must later be certified by the transportation officer. In making this verification, the transportation officer is required to give full consideration to the member’s duty assignment, grade, and length of service.

Plaintiff apparently sought to comply with this regulation in March 1975. Attached to plaintiffs petition is a certification dated March 2,1975, in which plaintiff alleges all listed materials were necessary to his official duties. Neither this certification and listing nor the earlier correspondence evidently persuaded the transportation officer that the items were qualifying professional materials, for the shipment was never approved. In the main, plaintiff argues that the 1975 decision was error because no inspection was conducted and that these materials qualified under a "local policy” that had been applied to other servicemen. We need not decide whether the Army could deny this claim based solely on a listing of the alleged professional materials, a point on which the regulation is unclear. Documents in this record suggest an inspection [753]*753was in fact made and resulted in the denial of the claim. There is, of course, a general presumption that an agency has acted in good faith and in a manner consistent with the law. See, e.g., Gross v. United States, 205 Ct. Cl. 605, 613, 505 F. 2d 1271, 1275-1276 (1974); Boyle v. United States, 207 Ct. Cl. 27, 34-35, 515 F. 2d 1397, 1401 (1975); Horne v. United States, 190 Ct. Cl. 145, 150, 419 F.2d 416, 419 (1969). While this presumption may be rebutted, plaintiff needs far more than his unsupported allegations which at least in part conflict with the documentary record. Similarly, an agency’s interpretation or application of its own regulation is entitled to considerable deference. E.g., Udall v. Tallman, 380 U. S. 1, 16-17 (1965); Baldwin v. United States, 175 Ct. Cl. 264, 269 (1966), cert. denied, 385 U. S. 1014 (1967), and cases cited thereat. We find no reason on this record to reject the agency’s determination that these materials were not necessary in the performance of plaintiffs duties with JUSPAO or as a Mortuary Officer. Plaintiff has simply failed to convince us the Army was wrong.2 Accordingly, defendant’s motion for summary judgment as to No. 16-78 should be granted.

B. No. 356-78

Damage Claim for Household Goods Shipped from Vietnam to South Carolina

Also during April 1975, plaintiff shipped an authorized 1,500 pounds of personal, unaccompanied baggage. This authorized shipment was made and received under emergency evacuation proceedings and arrived in Oakland, California, in May 1975. At that time, plaintiff was on his way to Iran, so the goods were delivered to plaintiffs brother in late June 1975 at Newberry, South Carolina. As there was no inventory to establish the contents or condi[754]*754tion of the shipment, plaintiffs brother took no exception to the delivery and received the goods in "as is” condition.

On November 21, 1976, plaintiff filed a claim for $4,925 with the Army Claims Service. Plaintiff contemporaneously executed a Subrogation and Insurance Statement. On both the damage claim and subrogation agreement, plaintiff indicated he did not have private insurance applicable to the loss.

In April 1977 the Army Claims Service contacted the United Services Automobile Association (USAA), plaintiffs private insurer, and requested information relative to plaintiffs coverage.

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Bluebook (online)
228 Ct. Cl. 750, 1981 U.S. Ct. Cl. LEXIS 649, 1981 WL 21476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shull-v-united-states-cc-1981.