B-144183, OCT. 20, 1961

B-144183, OCT. 20, 1961

TO MARCUS A. PARVEY, M.D.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1961, AND ENCLOSURES, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED JUNE 5, 1961, WHICH BARRED PART OF YOUR CLAIM FOR RETIRED PAY WITHHELD PURSUANT TO SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, BY VIRTUE OF YOUR EMPLOYMENT BY THE VETERANS ADMINISTRATION. YOUR CLAIM WAS THE SUBJECT OF OUR DECISION OF OCTOBER 20, 1960, B-144183, AND LETTER OF APRIL 27, 1961, SAME FILE NUMBER.

UNDER THE AUTHORITY OF THE RULING IN THE CASE OF WATMAN V. UNITED STATES, CT.CL. NO. 189-59, DATED MARCH 1, 1961, OUR CLAIMS DIVISION ON JUNE 5, 1961, MADE A SETTLEMENT IN YOUR FAVOR FOR THE AMOUNT OF $11,791.67, AS AN ADJUSTMENT OF YOUR RETIRED PAY FOR THE PERIOD SEPTEMBER 14, 1949, THROUGH NOVEMBER 30, 1959. BY SUCH SETTLEMENT, THAT PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO SEPTEMBER 14, 1949, WAS BARRED IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, FOR THE REASON THAT YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL SEPTEMBER 14, 1959.

IN YOUR LETTER OF JULY 9, 1961, YOU EXPRESS THE BELIEF THAT YOU SHOULD NOT BE PENALIZED BY THE NEGLECT OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, TO ADVISE YOU IN HIS LETTERS OF SEPTEMBER 26 AND NOVEMBER 14, 1957, TO DIRECT YOUR INQUIRY TO THIS OFFICE AND BY THE FACT THAT THIS OFFICE DID NOT APPRISE YOU IN LETTER OF NOVEMBER 4, 1957, OF THE PROPER PROCEDURE IN THE MATTER. YOU HAVE FORWARDED THE ABOVE LETTERS OF SEPTEMBER 26 AND NOVEMBER 4 AND 14, 1957, AS PROOF THAT PRIOR INQUIRY WAS MADE BY YOU TO "RESPONSIBLE SOURCES.'

THE RECORD SHOWS THAT YOUR LETTER OF AUGUST 13, 1959, WHICH CONSTITUTES YOUR CLAIM FOR THE WITHHELD RETIRED PAY AND WHICH DOES NOT BEAR THE NAME OF THE OFFICIAL TO WHOM IT WAS MAILED, WAS APPARENTLY MAILED TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, AND WAS RECEIVED BY THIS OFFICE ON SEPTEMBER 14, 1959. SINCE THE RECORD SHOWS THAT RETIRED PAY HAD BEEN WITHHELD FROM YOU DURING THE PERIODS JUNE 25, 1946, TO JULY 7, 1951, AND AUGUST 10, 1953, TO NOVEMBER 30, 1959, THERE WAS FOR APPLICATION IN CONNECTION WITH SUCH CLAIM THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. SECTION 1 OF THAT ACT PROVIDES AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

ACCORDINGLY, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE ACT OF OCTOBER 9, 1940, BUT TO BAR THAT PORTION OF YOUR CLAIM WHICH COVERED A PERIOD EARLIER THAN 10 YEARS PRIOR TO THE DATE OF RECEIPT OF YOUR LETTER OF AUGUST 13, 1959.

WHILE ON DATE OF SETTLEMENT OF YOUR CLAIM, JUNE 5, 1961, THERE WAS ON FILE HERE YOUR LETTER OF SEPTEMBER 29, 1957, THIS OFFICE PROPERLY DID NOT CONSIDER THAT LETTER AS A CLAIM, AND, THEREFORE, DID NOT CONSIDER IT AS ACCEPTABLE IN ESTABLISHING THE DATE OF RECEIPT THEREOF, OCTOBER 2, 1957, AS THE DATE YOUR "CLAIM" WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE FOR THE PURPOSES OF THE ACT OF OCTOBER 9, 1940. IN THAT LETTER OF SEPTEMBER 29, 1957, YOU CITED OUR DECISION OF B-123382, DATED JUNE 11, 1957 (WHICH HELD THAT FEDERAL CIVILIAN OFFICERS AND EMPLOYEES WHO WERE MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD PRIOR TO JANUARY 1, 1953, OR WHO AFTER THAT DATE WERE MEMBERS OF THE RESERVE COMPONENTS, WOULD BE ENTITLED TO RECEIVE RETIRED PAY IN ADDITION TO CIVILIAN COMPENSATION), AND INQUIRED AS TO WHETHER THAT DECISION WOULD APPLY TO YOU. YOU FURTHER INQUIRED AS TO WHETHER YOU WERE SUBJECT TO SECTION 212OF THE ECONOMY ACT, AS AMENDED, NOTWITHSTANDING THAT YOU HAD CHOSEN VETERANS ADMINISTRATION COMPENSATION INSTEAD OF RETIREMENT PAY.

THERE IS NOTHING IN THAT LETTER TO SPECIFICALLY SHOW OR OTHERWISE INDICATE THAT RETIREMENT PAY WAS WITHHELD FROM PAYMENT TO YOU AND THAT IT WAS THEN YOUR INTENTION TO CLAIM THROUGH THIS OFFICE ANY MONIES THAT MAY HAVE BEEN SO WITHHELD. SINCE YOU MERELY SOUGHT INFORMATION CONCERNING YOUR EXEMPTION FROM THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, THIS OFFICE BY LETTER OF NOVEMBER 4, 1957, FURNISHED YOU WITH THE DESIRED INFORMATION TOGETHER WITH COPIES OF PERTINENT OFFICE DECISIONS. IT APPEARS THAT YOU ADDRESSED NO FURTHER INQUIRIES TO OR PRESENTED ANY CLAIM TO THIS OFFICE IN THE MATTER UNTIL SEPTEMBER 14, 1959, WHEN THIS OFFICE RECEIVED YOUR LETTER OF AUGUST 13, 1959, AND RELATED PAPERS.

IT IS CLEAR THAT YOUR LETTER OF SEPTEMBER 29, 1957, CONTAINS ONLY A REQUEST FOR INFORMATION OR ADVICE, AND HENCE THAT LETTER DOES NOT CONSTITUTE A "DEMAND" OR "CLAIM" AGAINST THE GOVERNMENT WITHIN THE MEANING OF SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, OR SECTION 1 OF THE ACT OF OCTOBER 9, 1940, UPON WHICH A SETTLEMENT MIGHT BE ISSUED EITHER ALLOWING YOU AN AMOUNT FOUND DUE OR DISALLOWING YOUR CLAIM FOR VALID REASON. IN CONSIDERING WHAT CONSTITUTES A "CLAIM" AGAINST THE GOVERNMENT WITHIN THE MEANING OF VARIOUS STATUTES OF LIMITATIONS, THE COURTS ON NUMEROUS OCCASIONS HAVE HELD THAT LETTERS MAKING INQUIRY OR REQUESTING INFORMATION AS TO THE STATUS OF A CASE MAY NOT BE REGARDED AS A "CLAIM" WITHIN THE MEANING OF SUCH STATUTES. SEE CHAVEZ V. UNITED STATES, 74 F.2D 508; UNITED STATES V. LOCKWOOD, 81 F. 468; WERNER V. UNITED STATES, 86 F.2D 113; MCENTIRE V. UNITED STATES, 115 F.2D 429; AND CANNON V. UNITED STATES, 45 F.SUPP. 106. IN THE CASE OF COOK V. UNITED STATES, 145 F.2D 290, THE COURT SAID:

"EVEN UNDER THE LIBERAL DEFINITION OF A CLAIM, * * * THE LETTER OF JANUARY 2, 1930, DID NOT CONSTITUTE A CLAIM. IT DID NOT ASSERT THAT THE INSURED WAS TOTALLY AND PERMANENTLY DISABLED WHEN THE POLICY WAS IN FORCE, OR CLAIM THAT THE INSURED WAS ENTITLED TO INSURANCE BENEFITS OR USE WORDS SHOWING AN INTENTION TO CLAIM SUCH BENEFITS. ON THE CONTRARY, IT WAS A MERE INQUIRY AS TO WHETHER THE INSURED WAS ENTITLED TO INSURANCE PAYMENTS IN ADDITION TO COMPENSATION.'

THE FACT THAT YOU HAD ADDRESSED AN INQUIRY TO THE ADJUTANT GENERAL AND, AS YOU ASSERT, HE NEGLECTED TO ADVISE YOU TO DIRECT YOUR INQUIRY TO THIS OFFICE, MAY NOT BE CONSIDERED AS RELEVANT IN THE MATTER. AS INDICATED ABOVE, YOU ADDRESSED AN INQUIRY TO THIS OFFICE ON SEPTEMBER 29, 1957, WHICH IS ABOUT THE TIME YOU ADDRESSED A SIMILAR INQUIRY TO THE ADJUTANT GENERAL, AND IN RESPONSE THIS OFFICE PROPERLY INFORMED YOU IN THE PREMISES. IN SUCH CIRCUMSTANCE, IT APPEARS TO BE IMMATERIAL WHETHER OR NOT THE ADJUTANT GENERAL ADVISED YOU TO DIRECT AN INQUIRY TO THIS OFFICE. FURTHERMORE, EVEN IF YOU HAD PRESENTED A CLAIM TO THE ADJUTANT GENERAL RATHER THAN ADDRESSED AN INQUIRY TO HIM AS EARLY AS 1957, SUCH ACTION WOULD NOT HAVE SATISFIED THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940, SINCE THE REQUIREMENT PRESCRIBED BY THAT ACT OF FILING A CLAIM IN THIS OFFICE IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. THE GOVERNING DATE IN SUCH INSTANCE IS THE DATE OF RECEIPT OF SUCH CLAIM IN THE GENERAL ACCOUNTING OFFICE. SEE 32 COMP. GEN. 267.

THE ACTION TAKEN BY OUR CLAIMS DIVISION IN BARRING A PORTION OF YOUR CLAIM WAS IN ACCORDANCE WITH LAW AND, ACCORDINGLY, THERE IS NO FURTHER ACTION THAT WE MAY TAKE IN THE MATTER.