Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ September 17, 1998 __________________ GSBCA 14560-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. James F. Fitzgerald, Director, Transportation Audits Division, General Services Administration, Washington, DC, appearing for General Services Administration. Col. James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. BORWICK, Board Judge. In this matter we consider the question of whether our decision in C.I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860, should be applied retroactively to pending claims so as to entitle Tri-State Motor Transit Co. (TSMT) to $959.84. We conclude that it should. TSMT is entitled to a refund of the $959.84 (representing principal plus interest) that it paid to the Government pursuant to notices of overcharge issued by the General Services Administration's Office of Transportation Audits (OTA). The record shows the following. On January 27, 1994, the transportation officer at the Naval Weapons Station, Earle, New Jersey, shipped 15,637 pounds of explosives to the Naval Weapons Station, Yorktown, Virginia, by Government Bill of Lading (GBL) G-2,824,738. The shipment was for the benefit of the United States Coast Guard (Coast Guard), because on the GBL it states that the charges were to be paid by the Commandant of the Coast Guard. The carrier was TSMT, which charged $1371 under its special rate authority 1064 stated in the GBL. TSMT filed a claim for an additional $261.08, asserting it should be paid under its tariff T100 instead of its special rate authority because the shipment was for the benefit of the Coast Guard, not the Department of Defense (DoD). Application of TSMT's tariff would result in total freight charges of $1632.08, or $261.08 more than it had been paid under the GBL. On February 10, 1994, the transportation officer at the Naval Surface Warfare Center, Crane, Indiana, shipped 138 pounds of firearms and related commodities to the 5th Coast Guard District, Portsmouth, Virginia, by GBL G-4,023,350. The carrier was TSMT, which charged $688.40 under its special rate authority 001303 as stated in the GBL. TSMT again filed a claim for an additional $655.90, because the shipment was for the benefit of the Coast Guard. Application of TSMT's tariff for the items would result in total freight charges of $1344.30, or $655.90 more than it had been paid under the GBL. For both claims, TSMT asserted that our decision in C.I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860, was dispositive. In that case, involving a shipment made by DoD on behalf of the Coast Guard, we held that the carrier was entitled to be paid at its tariff rate because the carrier's tenders, issued pursuant to special rate authority, applied only to shipments made for the benefit of the DoD, not to shipments made for civilian agencies. Our decision there relied on Baggett Transportation Co. v. United States, 670 F.2d 1011 (Ct. Cl. 1982). After the claims were filed, the Government paid TSMT the total requested, or $916.98. Subsequently, the OTA submitted notices of overcharge to TSMT, maintaining that the decision in GSBCA 13911-RATE was not retroactive, and that the governing authority was a decision of the Comptroller General, 45 Comp. Gen. 118 (1965).[foot #] 1 For GBL G-2,824,738, OTA sought a refund of $261.08 plus interest of $12.07 for a total of $273.15. For GBL G-4023350, OTA sought a refund of $655.90 plus interest of $30.79, for a total of $686.69. TSMT paid the alleged overcharges plus interest totaling $959.84 and filed a request for review at this Board. Discussion Neither OTA nor the Military Traffic Management Command (MTMC) disputes TSMT's underlying assumption that the shipments' tenders at issue here are limited to DoD agencies only, as was the case in Whitten. Rather, both MTMC and OTA focus on whether the Whitten decision should be applied retroactively. OTA erred in determining that our decision in Whitten has prospective application only. In both federal court cases and in administrative adjudications, decisions generally are given retroactive effect because of the overriding policy of treating ----------- FOOTNOTE BEGINS --------- [foot #] 1 That decision held in part that a carrier could authorize use by one agency of the carrier's special tender applicable to another agency by manifesting clear assent such as an annotation on the bill of lading. ----------- FOOTNOTE ENDS ----------- similarly situated parties the same, which is regarded as a fundamental principle both of stare decisis and the rule of law generally. National Fuel Gas Supply Corp. v. Federal Energy Regulatory Commission, 59 F.3d 1281, 1289 (D.C. Cir. 1995) (citing Beam v. Georgia, 501 U.S. 529, 537-38 (1991)). In federal courts, consequently, the exceptions to the retroactivity of decisions are limited: (1) the decision creates a new rule, either by overruling past precedents relied upon by the parties or because it was an issue of first impression; (2) retroactive application would be more likely to hinder than to further operation of the new rule; and (3) retroactive application would produce substantialy inequitable results. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971); District Lodge 64, International Association of Machinists and Aerospace Workers v. NLRB, 949 F.2d 441 (D.C. Cir. 1991).[foot #] 2 Analogous stringent limitations apply when considering the retroactivity of agency adjudications. Agency adjudications will be applied retroactively unless: (1) the particular case is one of first impression; (2) the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law; (3) the party against whom the new rule is applied relied upon the former rule; and (4) the statutory interest in applying a new rule outweighs the reliance of a party on the old standard. District Lodge 64, 949 F.2d at 447. In Whitten, we did not make new law; rather, we interpreted the provisions of the tender and tariff in light of the law the Court of Claims articulated in 1982 in Baggett. In Whitten, we noted that the concurring judge in Baggett took note of the decisions of the Comptroller General holding to the contrary and considered them "wrong." Whitten, 97-1 BCA at 143,989. In deciding Whitten, therefore, the Board did not deal with a case of first impression or develop a new rule that represented an abrupt departure from an old rule. We applied the law articulated by the authoritative court as it has stood since at least 1982. Since the agency has not demonstrated that a departure from the general rule of retroactivity is warranted, or demonstrated that Whitten is distinguishable from this matter, we ----------- FOOTNOTE BEGINS --------- [foot #] 2 In Reynoldsville Casket Co. v. Hyde, 514 U.S. ___________________________________ 749, 759 (1995), the Supreme Court held that a remedy which avoids the application of a new rule is appropriate in four specific circumstances: (1) where there is an alternative way of curing a constitutional violation; (2) where, there exists a previously existing independent basis having nothing to do with retroactivity; (3) where, as in the law of qualified immunity, there is a well-established legal rule that trumps the new rule of law, which general rule reflects both reliance interests and other significant policy justification; or (4) where, a principle of law limits the principle of retroactivity itself. ----------- FOOTNOTE ENDS ----------- will follow the reasoning of Whitten. TSMT is entitled to payment of $959.84 __________________________ ANTHONY S. BORWICK Board Judge