B-122960, JAN. 18, 1956

B-122960: Jan 18, 1956

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THESE EFFORTS ARE NECESSARILY DEPENDENT UPON THE AVAILABILITY OF SKILLED PERSONNEL. IT IS NOT UNDERSTOOD HOW SUCH A STATEMENT CAN OPERATE TO DEFEAT RECOVERY OF THE SUBJECT OVERPAYMENTS. IT DOES NOT APPEAR THAT SUCH A LIMITATION WAS INTENDED. THE RULE IS WELL SETTLED THAT STATUTES OF LIMITATION. IT IS EQUALLY WELL SETTLED THAT THE GOVERNMENT AND ITS AGENCIES ARE NOT BARRED BY THE LACHES OF GOVERNMENT OFFICERS IN THE ENFORCEMENT OF PUBLIC OR GOVERNMENTAL CLAIMS. QUOTED JUSTICE STORY'S EXPLANATION OF THE RULE AS FOLLOWS: " "THE TRUE REASON * * * IS TO BE FOUND IN THE GREAT PUBLIC POLICY OF PRESERVING THE PUBLIC RIGHTS. THE SUPREME COURT STATED THAT "IT MATTERS NOT HOW LONG A TIME ELAPSED BEFORE THE ERROR IN MAKING THE OVERPAYMENT WAS DISCOVERED OR HOW LONG THE ATTEMPT TO RECOVER IT WAS DEFERRED.

B-122960, JAN. 18, 1956

TO CENTRAL OF GEORGIA RAILWAY COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER FILE N-21333-G, REQUESTING REVIEW OF THE AUDIT ACTION TAKEN IN OUR TRANSPORTATION DIVISION ON 19 OF YOUR BILLS. YOU DO NOT QUESTION THE CORRECTNESS OF THE AUDIT, BUT, RATHER, THE GOVERNMENT'S RIGHT TO RECOVER THE STATED OVERPAYMENTS, TOTALING $3,422.77, MADE MORE THAN TEN YEARS PRIOR TO THE DATE OF THE DEMAND FOR REFUND. YOU SUPPORT YOUR POSITION WITH (1) A STATEMENT ATTRIBUTED TO THE DIRECTOR OF THE TRANSPORTATION DIVISION RELATIVE TO THE STATUS OF THE REAUDIT PROGRAM; (2) AN IMPLICATION THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PLACES A TEN-YEAR LIMITATION ON THE CONSIDERATION OF CLAIMS AGAINST THE UNITED STATES COGNIZABLE HERE, SHOULD BE VIEWED AS BARRING RECOVERY OF CLAIMS MORE THAN 10 YEARS OLD IN FAVOR OF THE UNITED STATES; AND (3) A STATEMENT RELATIVE TO THE SETTLEMENT OF PUBLIC ACCOUNTS FROM A 1922 OPINION OF THE COURT OF CLAIMS IN TEXAS AND PACIFIC RAILWAY COMPANY V. UNITED STATES, 57 C.CLS. 284.

AT THE DIRECTION OF CONGRESS, OUR TRANSPORTATION DIVISION IN 1948 UNDERTOOK A REAUDIT OF WORLD WAR II TRANSPORTATION ACCOUNTS PAID BETWEEN JANUARY 1, 1943, AND SEPTEMBER 30, 1946. CONGRESS SET NO TIME LIMIT WITHIN WHICH THE REAUDIT SHOULD BE COMPLETED; HOWEVER, EVERY EFFORT HAS BEEN MADE HERE TO EFFECT AN ORDERLY AND EXPEDITIOUS COMPLETION OF THE PROGRAM. THESE EFFORTS ARE NECESSARILY DEPENDENT UPON THE AVAILABILITY OF SKILLED PERSONNEL, THE WORKLOAD, AND THE COMPLEXITIES OF BOTH THE REAUDIT AND THE CURRENT AUDIT. CONSEQUENTLY, THE STATEMENT OF THE DIRECTOR, TRANSPORTATION DIVISION, WHICH YOU QUOTED, MERELY REFLECTED THE SITUATION AS IT THEN EXISTED, AND IT IS NOT UNDERSTOOD HOW SUCH A STATEMENT CAN OPERATE TO DEFEAT RECOVERY OF THE SUBJECT OVERPAYMENTS.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, FOREVER BARS EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS SUCH CLAIM BE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. CONGRESS PLACED NO LIMITATION UPON THE ADMINISTRATIVE SETTLEMENT OF CLAIMS IN FAVOR OF THE UNITED STATES, AND IT DOES NOT APPEAR THAT SUCH A LIMITATION WAS INTENDED. THE RULE IS WELL SETTLED THAT STATUTES OF LIMITATION, WHETHER UPON ADMINISTRATIVE OR JUDICIAL ENFORCEMENT OF RIGHTS, DO NOT BIND THE UNITED STATES UNLESS CONGRESS HAS CLEARLY MANIFESTED SUCH AN INTENTION. UNITED STATES V. NASHVILLE, CHATTANOOGA AND ST. LOUIS RY. CO., 118 U.S. 120, 125. IT IS EQUALLY WELL SETTLED THAT THE GOVERNMENT AND ITS AGENCIES ARE NOT BARRED BY THE LACHES OF GOVERNMENT OFFICERS IN THE ENFORCEMENT OF PUBLIC OR GOVERNMENTAL CLAIMS. THE UNITED STATES SUPREME COURT, IN GUARANTY TRUST COMPANY V. UNITED STATES, 304 U.S. 126, 132, QUOTED JUSTICE STORY'S EXPLANATION OF THE RULE AS FOLLOWS:

" "THE TRUE REASON * * * IS TO BE FOUND IN THE GREAT PUBLIC POLICY OF PRESERVING THE PUBLIC RIGHTS, REVENUES, AND PROPERTY FROM INJURY AND LOSS, BY THE NEGLIGENCE OF PUBLIC OFFICERS. * * * ," STORY, J., IN UNITED STATES V. HOAR, FED.CAS. NO. 15,373.

IN GRAND TRUNK WESTERN RAILWAY COMPANY V. UNITED STATES, 252 U.S. 112, 121, THE SUPREME COURT STATED THAT "IT MATTERS NOT HOW LONG A TIME ELAPSED BEFORE THE ERROR IN MAKING THE OVERPAYMENT WAS DISCOVERED OR HOW LONG THE ATTEMPT TO RECOVER IT WAS DEFERRED. THE STATUTE OF LIMITATIONS DOES NOT ORDINARILY RUN AGAINST THE UNITED STATES AND WOULD NOT PRESENT A BAR TO A SUIT FOR THE OUNT.' SEE, ALSO, UNITED STATES V. THOMPSON, 98 U.S. 486 AND UNITED STATES V. SUMMERLIN, 310 U.S. 414, 416. THUS, IT SEEMS CLEAR THAT THE ACT OF OCTOBER 9, 1940, DOES NOT OPERATE TO BAR THE UNITED STATES FROM ASSERTING AND COLLECTING A CLAIM MORE THAN TEN YEARS AFTER ITS ACCRUAL.

THE INTERSTATE COMMERCE COMMISSION PRESCRIBES RULES FOR THE RETENTION OF CARRIERS' RECORDS FOR CERTAIN FIXED PERIODS. SEE 49 C.F.R. 110, ET SEQ. OUR OFFICE HAS NO JURISDICTION IN THAT RESPECT. IT IS NOTED, HOWEVER, THAT THE DESTRUCTION OF THE RECORDS AFTER THE LAPSE OF THE PRESCRIBED TIME IS PERMISSIVE, NOT MANDATORY. THE DECISION TO DESTROY OR RETAIN RECORDS IS A MATTER OF DISCRETION WITH THE INDIVIDUAL CARRIERS.

THE DECISION OF THE COURT OF CLAIMS CONCERNING FINALITY OF SETTLEMENTS IN THE ABOVE-MENTIONED TEXAS AND PACIFIC RAILWAY COMPANY CASE, RENDERED IN 1922, RELATES TO AN ACTION BY A CARRIER TO RECOVER AMOUNTS ADDITIONAL TO THOSE PREVIOUSLY PAID, AND APPARENTLY WAS NOT CONCERNED WITH ANY STATUTE OF LIMITATIONS UPON THE GOVERNMENT'S RIGHT TO ADJUST OVERPAYMENTS. OUR AUDIT ACTION, THEREFORE, IS NOT CONTRARY TO THE PRINCIPLE OF THE TEXAS AND PACIFIC RAILWAY COMPANY CASE.

SINCE YOU HAVE RAISED NO SUBSTANTIVE DEFENSES TO THE OVERPAYMENTS DETERMINED BY OUR TRANSPORTATION DIVISION, THE GENERAL ACCOUNTING OFFICE FORMS 1003 ISSUED IN CONNECTION WITH THE 19 BILLS INVOLVED ARE RETURNED AND THE AMOUNT OF THE STATED OVERPAYMENTS SHOULD BE REFUNDED PROMPTLY.

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