B-176997, MAR 27, 1973

B-176997, MAR 27, 1973

TRANSMITTAL OF CLAIMS TO THE COURT OF CLAIMS CONCERNING THE CLAIM OF LT. EUGENE R. FIDELL, USCGR FOR INCREASED QUARTERS ALLOWANCE FOR THE PERIOD OCTOBER 1, 1971 TO NOVEMBER 14, 1971 UNDER THE PROVISIONS OF PUB. L. 92-129. THE PROVISIONS OF 28 U.S.C. 2510 DO NOT REQUIRE GAO TO TRANSMIT TO THE COURT OF CLAIMS FOR TRIAL AND ADJUDICATION ANY CLAIM THAT HAS BEEN CONSIDERED AND FINALLY DETERMINED BY GAO.

TO LT. EUGENE R. FIDELL:

REFERENCE IS MADE TO YOUR PETITION OF FEBRUARY 27, 1973, CONCERNING YOUR CLAIM FOR INCREASED QUARTERS ALLOWANCE FOR THE PERIOD OCTOBER 1, 1971, TO NOVEMBER 14, 1971, UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 28, 1971, PUBLIC LAW 92-129, 85 STAT. 348.

THIS MATTER WAS THE SUBJECT OF OUR DECISION OF DECEMBER 15, 1972, B 176997, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION ON THE BASIS OF OUR DECISION B 176083, JULY 7, 1972 (52 COMP. GEN. ), IN WHICH WE HELD THAT INCREASES IN MILITARY PAY AND ALLOWANCES UNDER PUBLIC LAW 92-129 WERE SUBJECT TO THE 90-DAY WAGE -PRICE FREEZE IMPOSED BY EXECUTIVE ORDER 11615, DATED AUGUST 15, 1971, ISSUED UNDER THE AUTHORITY OF THE ECONOMIC STABILIZATION ACT OF 1970, PUBLIC LAW 91-379, 84 STAT. 799, AS AMENDED.

YOU CONTEND THAT WHILE YOUR CLAIM FOR INCREASED BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD INVOLVED OR A SIMILAR CLAIM BY ANY OTHER INDIVIDUAL IS FOR A SMALL AMOUNT, THE MAGNITUDE OF THE TOTAL OF ALL CLAIMS BY THOSE AFFECTED BY OUR DECISION IS SIGNIFICANT. YOU THEREFORE REQUEST THAT THIS OFFICE REFER YOUR CLAIM FOR INCREASED BAQ TO THE UNITED STATES COURT OF CLAIMS IN ORDER THAT THERE MAY BE AN EARLY JUDICIAL RESOLUTION OF THE CONSTITUTIONAL AND STATUTORY ISSUES INVOLVED IN THIS MATTER, CITING 28 U.S.C. 2510 AND THE U.S. COURT OF CLAIMS RULE 183, AS APPLICABLE.

YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71 AND 74, ALL CLAIMS AGAINST THE UNITED STATES (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) ARE TO BE ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE) AND THE DECISIONS RENDERED BY THE COMPTROLLER GENERAL WITH REGARD TO SUCH CLAIMS ARE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.

SECTION 2510 OF TITLE 28, U.S. CODE, CLEARLY PROVIDES THAT "THE COMPTROLLER GENERAL MAY TRANSMIT TO THE COURT OF CLAIMS FOR TRIAL AND ADJUDICATION ANY CLAIM ***." THE LEGISLATIVE HISTORY OF THAT SECTION CLEARLY ESTABLISHES THAT THE LAW WAS INTENDED TO BE DISCRETIONARY, NOT MANDATORY. THUS, THE COMPTROLLER GENERAL IN HIS DISCRETION MAY TRANSMIT THE RECORD ON ANY CLAIM TO THE UNITED STATES COURT OF CLAIMS, LEAVING THE CLAIMANT TO PROVE HIS CASE IN THAT FORUM.

THESE PROVISIONS OF LAW, HOWEVER, HAVE NOT BEEN REGARDED BY THIS OFFICE AS HAVING ANY APPLICATION TO A CLAIM WHICH HAS BEEN CONSIDERED AND FINALLY DETERMINED BY THIS OFFICE. THEY HAVE ONLY BEEN REGARDED BY US AS BEING FOR APPLICATION IN THE FOLLOWING INSTANCES: (1) WHERE THERE ARE TWO OR MORE CLAIMANTS WHO HAVE A CONFLICTING INTEREST IN A CERTAIN AND SPECIFIC SUM OF MONEY WHICH HAS BEEN DETERMINED TO BE CLEARLY DUE AND IS IN THE CONTROL OF THE GOVERNMENT AS A STAKEHOLDER, THE ADJUDICATION OF WHICH BY THE COURT OF CLAIMS IS DEEMED NECESSARY TO PROTECT THE GOVERNMENT AGAINST A LATER CLAIM BY UNSUCCESSFUL CLAIMANTS, AND (2) WHERE THE RIGHTS OF A CLAIMANT ARE DEFINITE AND CLEARLY ESTABLISHED UNDER APPLICABLE PROVISIONS OF LAW, BUT THE AMOUNT DUE IS TOO UNCERTAIN TO PERMIT SETTLEMENT BY THIS OFFICE. NEITHER OF THESE FACTORS ARE PRESENT IN CONNECTION WITH YOUR CLAIM. ACCORDINGLY, YOUR REQUEST IS DENIED.

SHOULD YOU DESIRE TO HAVE THE COURT OF CLAIMS CONSIDER THE MERITS OF YOUR CLAIM, IT WILL BE NECESSARY FOR YOU TO FILE A PETITION THEREIN. IN THIS REGARD, YOUR ATTENTION IS DIRECTED TO THE PROVISIONS OF 28 U.S.C. 2501 WHICH REQUIRE THAT "EVERY CLAIM OF WHICH THE COURT OF CLAIMS HAS JURISDICTION SHALL BE BARRED UNLESS THE PETITION THEREON IS FILED WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES."