B-130741, APR. 10, 1957

B-130741, APR. 10, 1957

TO MR. ROBERT W. AMUNDSEN:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 31, 1957, CONCERNING YOUR CLAIM FOR ADDITIONAL PAY AS A FLYING CADET DURING THE PERIOD FEBRUARY THROUGH DECEMBER 1918.

YOUR CLAIM, AS CONTAINED IN YOUR LETTER DATED JUNE 26, 1956, TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WAS RECEIVED IN OUR CLAIMS DIVISION ON OCTOBER 8, 1956. THE CLAIM WAS RETURNED TO YOU BY THE CLAIMS DIVISION ON OCTOBER 22, 1956, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. THAT ACT PROVIDES, IN PERTINENT PART, THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED, AND THAT WHENEVER ANY SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THE ACT, AND THAT THE ACTION IN RETURNING THE CLAIM SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION. LATER, AFTER THE RECEIPT OF YOUR LETTER OF OCTOBER 29, 1956, IN WHICH YOU CONTENDED THAT YOUR CLAIM SHOULD NOT BE BARRED BECAUSE YOU HAD CORRESPONDENCE REGARDING IT WITH THE UNITED STATES ARMY IN 1920, THE CLAIMS DIVISION ADVISED YOU BY LETTER DATED JANUARY 2, 1957, THAT THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT DOES NOT MEET THE REQUIREMENT OF THE ACT OF OCTOBER 9, 1940, THAT SUCH CLAIM BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER SUCH CLAIM ACCRUED.

IN YOUR LETTER OF JANUARY 31, 1957, YOU AGAIN SAY THAT YOU FILED YOUR CLAIM WITH THE UNITED STATES ARMY IN 1920, BEFORE THE CREATION OF THE GENERAL ACCOUNTING OFFICE, AND YOU CONTEND THAT THE ACT OF OCTOBER 9, 1940, SHOULD NOT BE SO CONSTRUED AS TO BAR THE PRESENT CONSIDERATION BY US OF A CLAIM INITIALLY FILED IN THE ADMINISTRATIVE OFFICE BEFORE THE CREATION OF THE GENERAL ACCOUNTING OFFICE. YOU ALSO SAY THAT YOU DO NOT THINK THAT CONGRESS CREATED THE GENERAL ACCOUNTING OFFICE FOR THE PURPOSE OF RELIEVING THE GOVERNMENT FROM PAYMENT OF CLAIMS EXISTING PRIOR TO THE CREATION OF OUR OFFICE.

THE GENERAL ACCOUNTING OFFICE WAS CREATED BY SECTION 301 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 23, AND SECTION 305 OF THE ACT AMENDED SECTION 236 OF THE REVISED STATUTES TO PROVIDE THAT ALL CLAIMS AND DEMANDS WHATEVER BY THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE UNITED STATES IS CONCERNED, EITHER AS A DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE. SINCE IT IS WELL SETTLED THAT EVERYONE IS CHARGEABLE WITH NOTICE OF PUBLIC LAWS, THE ENACTMENT OF THE 1921 ACT CONSTITUTED LEGAL PUBLIC NOTICE OF ITS CONTENTS. THERE WAS NO DUTY ON ANY AGENCY OF THE GOVERNMENT TO INFORM YOU OF SUCH PROVISIONS RESPECTING THE FILING OF CLAIMS IN OUR OFFICE. HOWEVER, UPON THE ENACTMENT OF THE ACT OF OCTOBER 9, 1940, CONSIDERATION BY US OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED IS PROHIBITED. SUCH ACT MAY NOT BE CONSIDERED TO BE EX POST FACTO, THAT PHRASE, AS USED IN THE CONSTITUTION OF THE UNITED STATES BEING LIMITED IN SCOPE TO CRIMINAL STATUES. SEE JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 242. WE HAVE BEEN GRANTED NO POWERS OF DISPENSATION UNDER THE ACT OF OCTOBER 9, 1940, AND CONSEQUENTLY WE MAY MAKE NO EXCEPTIONS TO ITS PROVISIONS. SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL OCTOBER 8, 1956, IT IS BARRED, AND WE CAN TAKE NO FURTHER ACTION IN THE MATTER.

FURTHERMORE, IRRESPECTIVE OF THE ACT OF OCTOBER 9, 1940, PROHIBITING OUR CONSIDERATION OF YOUR CLAIM, FAVORABLE CONSIDERATION OF IT WOULD NOT BE WARRANTED, IT HAVING LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT WHERE A CLAIMANT HAS SLEPT ON HIS CLAIM FOR A LONG PERIOD OF YEARS HE IS GUILTY OF LACHES AND A PRESUMPTION ARISES THAT THE CLAIM NEVER WAS VALID OR, IF VALID, THAT IT ALREADY HAS BEEN PAID. 4 COMP. DEC. 276; 4 COMP. GEN. 804.