Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405







                                        

                   ___________________________



                         February 4, 2004

                   ___________________________





                         GSBCA 16038-RELO





               In the Matter of JAMES R. WYATT, JR.



     James R. Wyatt, Jr., Kathleen, GA, Claimant.



     Master Sergeant Karl H. Stanton, Deputy Chief, Excess Cost Adjudication Function,

Joint Personal Property Shipping Office, Department of the Air Force, San Antonio, TX,

appearing for Department of Defense.



HYATT, Board Judge.



     Claimant, James R. Wyatt, Jr., questions the Air Force's claim for excess costs of

shipping his household goods (HHG) in connection with his 1999 transfer from Seymour

Johnson Air Force Base in North Carolina to Warner Robins Air Force Base in Georgia.  The

Air Force has requested repayment of $940.91 in connection with this move on the basis that

the HHG shipped exceeded 18,000 pounds, which is the maximum amount that the

Government can pay to have shipped. 



     Claimant makes a variety of points in opposition to this claim.  First, he notes that he

last moved at Government expense only a few years prior to this move to Georgia and at that

time had only 13,000 pounds of household goods.  He is confident that he did not acquire

another 5000 pounds of household goods in the interim.  In addition, he points out that the

shippers failed to take note of the boxes designated for shipment as professional books,

papers, and equipment (PBP&E).  It appears that these items were included in the weight of

the regular household goods and, thus, might have caused the overage for which the Air

Force now seeks payment.  Since the Air Force took well over two years to inform Mr. Wyatt

of his potential liability for the additional cost of shipping excess goods, claimant asserts that

he is no longer in a good position to challenge the accuracy of the Air Force's claim.   He thus

argues that the Air Force should be precluded from recovering the alleged overpayment by

reason of laches and that the claim should be waived.



     In response to this claim, the Air Force states that there is no documentation approving

separate shipment of claimant's PBP&E, no professional items are noted on the inventory of

HHG, and no other basis has been identified to permit a reduction in the excess costs

claimed.  The Air Force also responds to claimant's frustration with the delay in notification,

explaining that the process has recently been streamlined and further automated to reduce the

time required to identify excess costs of shipping that must be paid for by the transferring

employee. 



                            Discussion



     When an agency transfers an employee from one permanent duty station to another

in the interest of the Government, the Government is responsible for the costs of transporting

and storing not more than 18,000 pounds net weight of the employee's HHG.  5 U.S.C. 

 5724(a)(2) (2000).  This statutory limitation is implemented in the Federal Travel Regulation

(FTR), which applies to most civilian employees of the Federal Government.  41 CFR 302-

7.2 (1999).  Because the Government cannot pay for moving any more than 18,000 pounds

of HHG, the employee whose goods are moved is responsible for reimbursing the

Government for the costs attributable to any weight in excess of 18,000 pounds.  Richard D.

Grulich, GSBCA 15800-RELO, 02-2 BCA   31,891.  As the Board has frequently noted,

these rules leave no room for compromise   if the shipment exceeds 18,000 pounds, the

employee must pay for the cost associated with the additional weight.  E.g., George W.

Currie, GSBCA 15199-RELO, 00-1 BCA   30,814; Robert K. Boggs, GSBCA 14948-RELO,

99-2 BCA   30,491.



     Although the Government may pay separately for PBP&E as an administrative

expense, rather than including those materials as HHG, there are specific regulations setting

forth guidelines for such shipments.  The relevant provisions, in effect as of the time of

claimant's move, are found in section 302-8.2(b) of the FTR and paragraph C8120 of the

Department of Defense's Joint Travel Regulations (JTR).  Both sets of regulations require

that the employee furnish (1) an itemized  inventory of PBP&E for review by the appropriate

official and (2) evidence that shipment of the items as HHG will cause the weight to exceed

the maximum allowance.  In addition, an appropriate official must certify that the PBP&E

are necessary for the performance of the employee's duties at the new official station and that

these or similar items would have to be obtained at Government expense if not transported

to the new permanent duty station.  The regulations establish that PBP&E shall be shipped

as an administrative, rather than as a travel, expense.  Id.; see also Mariano G. Aguilar, Jr.,

GSBCA 15903-RELO, 03-1 BCA   32,178; Nicholas R. Delaplane, GSBCA 14961-RELO,

99-2 BCA   30,489; Ingrid Rodenberg, GSBCA 13729-RELO, 97-2 BCA   29,027.  Here, the

Air Force states that there is no documentation that any of the items shipped were approved

for transport as PBP&E and there is no indication of such on the Government Bill of Lading

(GBL).  Claimant has not established otherwise.  Thus, the regulatory requirements to qualify

for shipment of items as PBP&E were not met and all of the items shipped must be treated

as HHG.



     Mr. Wyatt further contends that for his previous move, two years earlier, he had only

13,000 pounds of HHG and he did not acquire an additional 5000 pounds of HHG prior to

the move in issue.  A similar contention was squarely rejected in Rodenberg as insufficient

to overturn the carrier's documentation.  Indeed, the Board has observed that the

opportunities for relief in cases such as this are severely constrained.  Michael J. Kunk,

GSBCA 14721-RELO, 99-1 BCA   30,164 (1998).  In the absence of proven error or fraud,

the carrier's reported weight is deemed to be accurate.  As we stated in Kunk, the employee

may only avoid liability for the cost of transporting weight alleged to be in excess of 18,000

pounds "where the Government's assessment of costs is based on charges proven by clear and

substantial evidence to be marred by error."  99-1 BCA at 149,283 (citing Jerry Jolly,

GSBCA 14158-RELO, 98-1 BCA   29,518 (1997) (record contained persuasive documentary

evidence that mover's charges were based upon unreliable weight data); Robert G. Gindhart,

GSBCA 14288-RELO, 98-1 BCA   29,405 (1997) (mover's charges were based on weight

of household goods which became waterlogged during shipment)).  Mere suspicion that the

reported weight of the goods is not accurate, which is essentially all that we have here, does

not suffice to constitute clear and substantial evidence of error or fraud.  Boggs. 

Accordingly, we conclude that the Air Force has properly established a debt in this case. 



     Finally, Mr. Wyatt contends that the Air Force was not sufficiently diligent in

establishing its claim for repayment and that the agency should be barred from asserting it

under the doctrine of laches.  He additionally asks the Board to waive repayment of the

amount claimed by the Air Force.  These are not matters that the Board may appropriately

address, however.  



     The equitable doctrine of laches may be asserted as a defense against stale claims.  A

matter will not be barred on account of laches unless the party raising the defense proves

both (1) unreasonable and unexcused delay on the part of the party asserting the claim and

(2) prejudice to the responding party occasioned by the delay.  C. I. Whitten Transfer Co.,

GSBCA 13911-RATE, 97-1 BCA   28,860.  The general rule is that the United States is not

subject to a defense of laches.  United States v. Summerlin, 310 U.S. 414, 416 (1940); United

States v. Popovich, 820 F.2d 134, 136 (5th Cir. 1987).  The Court of Appeals for the Federal

Circuit has recognized this rule, although it may, in some circumstances, be willing to

entertain an argument that the doctrine should apply:



                At the outset we note that it is not entirely clear whether

          the defense of laches may be asserted against the government. 

          See S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1,

          6-9 (Fed.Cir.1985) (discussing apparently conflicting authority

          in various circuits and in the Court of Claims, and concluding

          that "we do not think that the thrust of the decisions is that

          laches is always inapplicable per se in any contract or other

          claim where a legal rather than an equitable remedy is sought."). 

          

JANA, Inc. v. United States, 936 F.2d 1265, 1269 (Fed. Cir. 1991).



     In any event, we need not resolve this issue here.  On the record before us, claimant

has not established the severe prejudice contemplated to invoke the defense against the

Government.  Additionally, the Board does not grant equitable relief in claims of this nature. 

Our review authority is limited to the legal determination of whether the requirements of

statute and regulation have been met.  Having determined that the debt was properly

established under the applicable statutory and regulatory provisions, the Board's review

function is ended.  We have no authority to waive the indebtedness.  E.g., Stephen V. Yates,

15236-RELO (Dec. 19, 2003); Jennings W. Bunn. Jr., GSBCA 15656-TRAV, 02-2 BCA 

 31,930.



     The authority to waive claimant's indebtedness is vested in the Air Force, which may

exercise that authority if it concludes that collection would be "against equity and good

conscience and not in the best interests of the United States" and if there is no indication of

"fraud, misrepresentation, fault, or lack of good faith" on the part of the person whose debt

is requested to be waived. 5 U.S.C.    5584(a)(2)(A).  Equitable considerations, such as the

laches defense asserted here, may thus more appropriately be raised in a properly directed

request that the agency exercise its waiver authority in this matter. 







                                   _________________________________

                                   CATHERINE B, HYATT

                                   Board Judge