B-131306, JUL. 17, 1957

B-131306, JUL. 17, 1957

TO MR. RAY H. MEYER:

YOUR LETTERS OF APRIL 18, MAY 1, JULY 3, AND JULY 5, 1957, AND YOUR AFFIDAVIT OF JUNE 14, 1957, HAVE BEEN RECEIVED.

YOU CONTEND THAT SECTION 236 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 24, 31 U.S.C. 71, REQUIRES THIS OFFICE TO SETTLE YOUR CLAIM. SECTION 236 READS, AS FOLLOWS:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'

THIS PROVISION OF LAW AMENDED AN EARLIER SIMILAR PROVISION CONTAINED IN SECTION 236, REVISED STATUTES, WHICH REQUIRED THAT PUBLIC ACCOUNTS BE SETTLED IN THE DEPARTMENT OF THE TREASURY, AND WAS INTENDED TO ESTABLISH THE GENERAL ACCOUNTING OFFICE AS THE AGENCY OF THE CONGRESS TO AUDIT AND SETTLE THE PUBLIC ACCOUNTS.

THE PURPOSE OF THE GENERAL ACCOUNTING OFFICE IS TO IMPLEMENT CONGRESSIONAL POWER OVER REVENUES AND APPROPRIATIONS BY A SYSTEM OF CHECKS AND CONTROLS ON COLLECTIONS AND EXPENDITURES. THUS, THE CHIEF FUNCTIONS OF THIS OFFICE ARE TO DETERMINE BY AUDIT AND OTHER MEANS THE LAWFULNESS AND JUSTICE OF PUBLIC ACCOUNTS AND CLAIMS AND, EXCEPT WHERE OTHER DISPOSITION IS PROVIDED BY LAW, SETTLE THEM ACCORDINGLY.

THE CLAIMS SETTLEMENT JURISDICTION OF THE GENERAL ACCOUNTING OFFICE IS NOT ALL-INCLUSIVE. THERE ARE SEVERAL TYPES OF CLAIMS WHICH THE CONGRESS HAS PLACED WITHIN THE EXCLUSIVE JURISDICTION OF PARTICULAR ADMINISTRATIVE AGENCIES OR THE COURTS. FOR EXAMPLE, MOST CLAIMS BASED ON VETERANS' LEGISLATION, INTERNAL REVENUE AND CUSTOMS LAWS, RETIREMENT AND SOCIAL SECURITY LEGISLATION, AND THE LIKE ARE SETTLED BY THE ADMINISTRATIVE AGENCIES RESPONSIBLE FOR CARRYING OUT THE PARTICULAR PROGRAMS OR LAWS. ALSO, CLAIMS AGAINST GOVERNMENT CORPORATIONS GENERALLY ARE SETTLED BY THE CORPORATIONS THEMSELVES.

TORT CLAIMS NOT EXCEEDING $1,000, WITHIN THE PURVIEW OF THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2672, MAY BE SETTLED BY THE ADMINISTRATIVE AGENCY CONCERNED OR THE CLAIMANT MAY ASK THE JUDGMENT OF THE COURTS. TORT CLAIMS EXCEEDING $1,000 MAY BE ADJUDICATED ONLY BY THE COURTS. WE HAVE NO JURISDICTION TO SETTLE TORT CLAIMS ARISING FROM THE ACTIVITIES OF OTHER FEDERAL AGENCIES.

THE PRIMARY EVIDENCE SUBMITTED BY YOU IN SUPPORT OF YOUR CLAIM IS A PHOTOSTATIC COPY OF A LETTER FROM THE VETERANS ADMINISTRATION TO YOU, DATED AUGUST 24, 1953. THIS LETTER APPARENTLY CONSTITUTED A DENIAL OF A CLAIM, PREVIOUSLY FILED BY YOU WITH THE VETERANS ADMINISTRATION, FOR AN INCREASED DISABILITY RATING. YOUR LETTER OF FEBRUARY 18, 1957, TO THIS OFFICE, PURPORTS TO ESTABLISH THAT CERTAIN MEDICAL RECORDS, FINDINGS, AND AFFIDAVITS WERE NOT PROPERLY CONSIDERED BY THE VETERANS ADMINISTRATION AND THAT EACH ITEM WHICH YOU FEEL WAS NOT DULY CONSIDERED CONSTITUTED AN UNLAWFUL ACT RESULTING, YOU CONTEND, IN A TOTAL OF 118 UNLAWFUL ACTS.

YOU SAY THAT 28 U.S.C. 1346, WHICH RELATES TO THE JURISDICTIONS OF THE UNITED STATES DISTRICT COURTS AND THE COURT OF CLAIMS, ALLOWS $10,000 FOR EACH WRONGFUL ACT COMMITTED BY A GOVERNMENT EMPLOYEE AND IN ACCORDANCE WITH YOUR INTERPRETATION OF THIS PROVISION OF THE U.S.C. YOU DEMAND PAYMENT IN THE AMOUNT OF $700,000.

AS A MATTER OF FACT, SECTION 1346 OF TITLE 28, U.S.C. PERTAINS TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE COURT OF CLAIMS OF THE UNITED STATES AND SETS A MAXIMUM LIMITATION OF $10,000. THIS CODE PROVISION HAS NO APPLICATION TO THE GENERAL ACCOUNTING OFFICE. HOWEVER, IN THIS REGARD, WE WISH TO BRING TO YOUR ATTENTION 28 U.S.C. 2680, WHICH PROVIDES AS FOLLOWS:

"THE PROVISIONS OF THIS CHAPTER AND SECTION 1346 (B) OF THIS TITLE SHALL NOT APPLY TO---

"/A) ANY CLAIM BASED UPON AN ACT OR OMISSION OF AN EMPLOYEE OF THE GOVERNMENT, EXERCISING DUE CARE, IN THE EXECUTION OF A STATUTE OR REGULATION, WHETHER OR NOT SUCH STATUTE OR REGULATION BE VALID, OR BASED UPON THE EXERCISE OR PERFORMANCE OR THE FAILURE TO EXERCISE OR PERFORM A DISCRETIONARY FUNCTION OR DUTY ON THE PART OF A FEDERAL AGENCY OR AN EMPLOYEE OF THE GOVERNMENT, WHETHER OR NOT THE DISCRETION INVOLVED BE ABUSED.'

THUS, IT CAN READILY BE SEEN THAT EVEN THE JURISDICTION OF THE COURTS IS NOT ALL-INCLUSIVE AND IS SUBJECT TO LIMITATIONS IMPOSED BY LAW.

FURTHERMORE, SINCE YOUR CLAIM IS BASED UPON THE ALLEGED MISHANDLING OF YOUR VETERANS CLAIM NO. C 10 715 458 BY THE VETERANS ADMINISTRATION, THE PROVISIONS OF 38 U.S.C. 11 A-2 WHICH VEST IN THE ADMINISTRATOR OF VETERANS AFFAIRS EXCLUSIVE AND FINAL JURISDICTION OVER CLAIMS CONCERNING VETERANS' BENEFITS CITED TO YOU IN OUR LETTER OF APRIL 16, 1957, PRECLUDES OUR OFFICE FROM ASSUMING JURISDICTION IN THE MATTER. CONTRARY TO YOUR CONTENTION, THE FEDERAL TORT CLAIMS ACT, PUBLIC LAW 601, 79TH CONGRESS, 60 STAT. 812, DID NOT REPEAL 38 U.S.C. 11 A-2. SECTION 410 OF THE FORMER ACT DEFINES THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS OVER SUITS ON TORT CLAIMS AGAINST THE UNITED STATES AND IN NO WAY DISTURBS THE "FINALITY" OF DECISIONS OF THE ADMINISTRATOR OF VETERANS AFFAIRS PROVIDED FOR IN 38 U.S.C. 11 A 2. THE COURTS HAVE CONSISTENTLY UPHELD THE PROVISION OF 38 U.S.C. 11 A-2. SEE HOLLIDAY V. UNITED STATES, 87 F.SUPP. 367; INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA V. BRADLEY, 75 F.SUPP. 394; AND VAN HORNE V. HINES, 122 F.2D 207, CERTIORARI DENIED, 314 U.S. 689.

WE REALIZE THAT THE LANGUAGE OF 31 U.S.C. 71 IS EXTREMELY BROAD AND TO THE AVERAGE LAYMAN MIGHT APPEAR TO CONFER UNLIMITED JURISDICTION UPON OUR OFFICE OVER ALL TYPES OF CLAIMS AGAINST THE UNITED STATES. HOWEVER, SINCE YOU HAVE INDICATED IN YOUR CORRESPONDENCE THAT YOU HOLD THE DEGREE OF BACHELOR OF LAWS, WE ARE SURE YOU ARE FAMILIAR WITH THAT BASIC PRINCIPLE OF STATUTORY CONSTRUCTION THAT A SPECIFIC STATUTORY PROVISION COVERING A GIVEN SUBJECT MATTER SUCH AS 38 U.S.C. 11 A-2, WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE SUCH AS 31 U.S.C. 71. IN OTHER WORDS, TO THE EXTENT OF ANY IRRECONCILABLE CONFLICT BETWEEN A GENERAL PROVISION AND A SPECIFIC PROVISION, THE GENERAL PROVISION MUST YIELD TO THE SPECIFIC PROVISION AND OPERATE ONLY UPON SUCH CASES AS ARE NOT WITHIN THE SCOPE OF THE SPECIFIC PROVISION.

IN VIEW OF THE FOREGOING WE FEEL SURE THAT YOU WILL UNDERSTAND THAT OUR OFFICE CANNOT LAWFULLY ASSUME JURISDICTION OVER YOUR CLAIM.