B-114508, DEC. 31, 1963

B-114508: Dec 31, 1963

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TO THE ERIE-LACKAWANNA RAILROAD COMPANY: REFERENCE IS MADE TO YOUR SUPPLEMENTAL BILL NO. 77-5520-B-7/45 FOR ADDITIONAL TRANSPORTATION CHARGES FOR SIX OUTBOUND TRANSIT MOVEMENTS OF DOUGLAS FIR PLYWOOD FROM TACOMA. SUBMITTING THIS BILL TO OUR TRANSPORTATION DIVISION IS IN EFFECT A REQUEST FOR REVIEW OF OUR SETTLEMENT DATED OCTOBER 4. 884378" (FOR WHICH CHARGES WERE ORIGINALLY CLAIMED ON YOUR BILL 77-5520-7-45) BECAUSE THEY "WERE SETTLED BY JUDGMENT ACTION.'. ON THESE SIX BILLS OF LADING ON THE BASIS THAT 100 PERCENT OF THE FREIGHT WAS FOR MILITARY USE AND THE LAND-GRANT DEDUCTIONS THEREFORE WERE APPLICABLE BEYOND THE TRANSIT POINT. THE REFUND PREVIOUSLY MADE BY YOUR COMPANY WAS NOT CONSIDERED.

B-114508, DEC. 31, 1963

TO THE ERIE-LACKAWANNA RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR SUPPLEMENTAL BILL NO. 77-5520-B-7/45 FOR ADDITIONAL TRANSPORTATION CHARGES FOR SIX OUTBOUND TRANSIT MOVEMENTS OF DOUGLAS FIR PLYWOOD FROM TACOMA, WASHINGTON, TO NEW YORK, NEW YORK, DURING JUNE AND JULY 1945. YOUR LETTER OF DECEMBER 6, 1962, SUBMITTING THIS BILL TO OUR TRANSPORTATION DIVISION IS IN EFFECT A REQUEST FOR REVIEW OF OUR SETTLEMENT DATED OCTOBER 4, 1957, IN CLAIM TK223207. THE SETTLEMENT IN QUESTION SHOWED, ON PAGE 6, DISALLOWANCE OF THE CLAIMS IN CONNECTION WITH "B/L'S DATPS 884366, 884371, 884373, 884375, 884377, AND 884378" (FOR WHICH CHARGES WERE ORIGINALLY CLAIMED ON YOUR BILL 77-5520-7-45) BECAUSE THEY "WERE SETTLED BY JUDGMENT ACTION.'

YOU REQUEST THAT THE MATTER BE RECONSIDERED AND THAT THE SUPPLEMENTAL BILL BE PAID.

THE CONTROVERSY INVOLVED ARISES FROM THE FACT THAT IN THE AUDIT OF THE VOUCHER EVIDENCING THE ORIGINAL PAYMENT FOR CHARGES ON THE MOVEMENT FROM TACOMA, WASHINGTON, OUR TRANSPORTATION DIVISION STATED A NOTICE OF OVERPAYMENT (FORM 1003) IN THE AMOUNT OF $2,091, ON THESE SIX BILLS OF LADING ON THE BASIS THAT 100 PERCENT OF THE FREIGHT WAS FOR MILITARY USE AND THE LAND-GRANT DEDUCTIONS THEREFORE WERE APPLICABLE BEYOND THE TRANSIT POINT. IN JANUARY 1949, YOU REFUNDED THE AMOUNT OF $1,574.38 UNDER PROTEST AND FILED A SUPPLEMENTAL BILL TO RECLAIM THAT PORTION OF THE REFUND WHICH REPRESENTED LAND-GRANT DEDUCTIONS.

IN A SUBSEQUENT REAUDIT OF THE PAYMENT VOUCHER, HOWEVER, THE REFUND PREVIOUSLY MADE BY YOUR COMPANY WAS NOT CONSIDERED, AND AN AMENDED NOTICE OF OVERPAYMENT IN THE AMOUNT OF $1,795.09 WAS ISSUED ON A LAND GRANT BASIS WHICH REFLECTED THAT 18.75 PERCENT OF THE FREIGHT HAD BEEN INTENDED FOR CIVILIAN USE. CREDIT WAS TAKEN BY OUR OFFICE FOR THE RATE PAID INTO THE TRANSIT POINT. IN NOVEMBER 1951, DEDUCTION OF THE $1,795.09 WAS MADE FROM AMOUNTS DUE YOUR COMPANY ON CURRENT BUSINESS. BY LETTER OF APRIL 7, 1952, YOUR COMPANY FILED A CLAIM WITH OUR OFFICE FOR REFUND OF THE DUPLICATE COLLECTION, BUT BEFORE SETTLEMENT ACTION WAS TAKEN ON YOUR BILL YOU INCLUDED THESE ITEMS IN A SUIT CONTESTING THE LAND-GRANT ISSUE IN THE COURT OF CLAIMS. ERIE RAILROAD COMPANY V. UNITED STATES, CT.CL. NO. 112- 53.

EXHIBIT D, ATTACHED TO THE PETITION IN THIS SUIT, SHOWS, AT PAGE 2 IN COLUMN 7, BOTH THE AMOUNTS DEDUCTED BY THE GENERAL ACCOUNTING OFFICE AND THE AMOUNTS REFUNDED UNDER PROTEST AS TO EACH OF THE BILLS OF LADING INVOLVED AND THE PETITION STATED A CLAIM FOR THE TOTAL REFUND AND THE DEDUCTION. THE GOVERNMENT'S RESPONSE TO THE PLEADINGS SHOWS AGREEMENT AS TO THE TOTAL AMOUNT REFUNDED AND DEDUCTED ON THE BILLS OF LADING CONCERNED. SUBSEQUENTLY, THE COURT CASE WAS SETTLED BY AGREEMENT BETWEEN THE PARTIES AS TO THE AMOUNT DUE THE PLAINTIFF, AND ON OCTOBER 3, 1956, JUDGMENT WAS ENTERED IN THE AMOUNT OF $3,369.64 IN FULL SETTLEMENT OF ALL THE ITEMS IN THE SUIT. THERE CAN BE NO QUESTION, THEREFORE, THAT THE DUPLICATE COLLECTION WAS AFFIRMATIVELY PLEADED AND ADMITTED IN THE CASE, ALTHOUGH NOT REFLECTED IN THE AMOUNT OF THE STIPULATED SETTLEMENT. IT IS NOTED THAT FOR THE PURPOSE OF CORRECTING MISTAKES THE RULES OF THE COURT OF CLAIMS PERMIT REVISION OF A JUDGMENT WITHIN A YEAR AFTER ENTRY.

THE JUDGMENT ENTERED IN CT.CL. NO. 112-53 WAS PAID ON JANUARY 9, 1957, AND PAYMENT THEREOF CONSTITUTED FULL AND FINAL SETTLEMENT OF ALL THE ITEMS IN THE SUIT BY VIRTUE OF THE FOLLOWING PROVISIONS OF SECTIONS 2517 AND 2519, TITLE 28, UNITED STATES CODE:

"SEC. 2517. PAYMENT OF JUDGMENTS.

"/A) EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS AGAINST THE UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR, ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A CERTIFICATION OF THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT.

"/B) PAYMENT OF ANY SUCH JUDGMENT AND OF INTEREST THEREON SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY. JUNE 25, 1948, C. 646, 62 STAT. 979.

"SEC. 2519. CONCLUSIVE OF JUDGMENT

"A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY. JUNE 25, 1948, C. 646, 62 STAT. 979.'

YOUR PRESENT CLAIM WAS FILED MORE THAN TEN YEARS AFTER THE DEDUCTION MADE IN NOVEMBER 1951, AND ALMOST SIX YEARS AFTER THE COURT JUDGMENT WAS PAID IN JANUARY 1957. IN THE LIGHT OF THE CLEAR AND UNAMBIGUOUS LANGUAGE OF THE ABOVE PROVISIONS OF LAW, AND THE INESCAPABLE FACT THAT THE DUPLICATE COLLECTION WAS SPECIFICALLY PLEADED AND ADMITTED IN THE PERTINENT COURT CASE, PAYMENT OF THE JUDGMENT ENTERED THEREIN CONSTITUTES A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS IN CONNECTION WITH THE SHIPMENTS CONCERNED. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 4, ..END :