B-132656, JAN. 19, 1962

B-132656: Jan 19, 1962

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BURLINGTON AND QUINCY RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 12. REQUESTING REVIEW OF THE REFUSAL TO ALLOW YOUR CLAIM FOR $74.30 WHICH YOU ASSERT IS STILL OUTSTANDING IN CONNECTION WITH A SHIPMENT MADE UNDER BILL OF LADING NO. SUCH BILL WAS PAID IN THE AMOUNT CLAIMED ON VOUCHER NO. 658330 IN THE DECEMBER 1944 ACCOUNTS OF M. WT-8602032 WHICH YOU APPARENTLY INTENDED TO HAVE APPLIED AGAINST BILL OF LADING NO. IN THE SUBSEQUENT AUDIT OF YOUR BILL NO. 252469 IT WAS DETERMINED THAT AN OVERCHARGE OF $592.33. WT- 8692932 WAS NOT ASSOCIATED WITH SUCH BILL BECAUSE OF THE ERRONEOUS INFORMATION FURNISHED WITH THE VOLUNTARY REFUND OF $3. THE AMOUNT REFUNDED IN CONNECTION WITH BILL OF LADING WT-8692932 WAS NOT TAKEN INTO CONSIDERATION AT THE TIME OUR NOTICE OF OVERPAYMENT ISSUED.

B-132656, JAN. 19, 1962

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1961, FILE GOVT. BILL 252469 -C, ACKNOWLEDGED JULY 25, REQUESTING REVIEW OF THE REFUSAL TO ALLOW YOUR CLAIM FOR $74.30 WHICH YOU ASSERT IS STILL OUTSTANDING IN CONNECTION WITH A SHIPMENT MADE UNDER BILL OF LADING NO. WT-8692932 IN OCTOBER 1944.

THE RECORD SHOWS THAT FOR THE SERVICE FURNISHED PURSUANT TO BILL OF LADING NO. WT-8692932 YOU ORIGINALLY CLAIMED $484 ON YOUR BILL NO. 252469. SUCH BILL WAS PAID IN THE AMOUNT CLAIMED ON VOUCHER NO. 658330 IN THE DECEMBER 1944 ACCOUNTS OF M. B. HALE. THEREAFTER, YOU MADE A VOLUNTARY REFUND OF $3,128.14 BY CHECK NO. 90276 DATED FEBRUARY 26, 1947, WHICH INCLUDED AN AMOUNT OF $148.67 AS APPLYING AGAINST BILL OF LADING NO. WT-8602032 WHICH YOU APPARENTLY INTENDED TO HAVE APPLIED AGAINST BILL OF LADING NO. WT-8692932. IN THE SUBSEQUENT AUDIT OF YOUR BILL NO. 252469 IT WAS DETERMINED THAT AN OVERCHARGE OF $592.33, INCLUDING AN OVERCHARGE ON BILL OF LADING NO. WT-8692932 IN THE AMOUNT OF $212.05, HAD BEEN MADE. SINCE THE $148.67 REFUND MADE IN CONNECTION WITH BILL OF LADING NO. WT- 8692932 WAS NOT ASSOCIATED WITH SUCH BILL BECAUSE OF THE ERRONEOUS INFORMATION FURNISHED WITH THE VOLUNTARY REFUND OF $3,128.14, THE AMOUNT REFUNDED IN CONNECTION WITH BILL OF LADING WT-8692932 WAS NOT TAKEN INTO CONSIDERATION AT THE TIME OUR NOTICE OF OVERPAYMENT ISSUED. UPON YOUR FAILURE TO REFUND THIS OVERCHARGE PER OUR NOTICE OF OVERPAYMENT FORM 1003 DATED AUGUST 9, 1956, THE AMOUNT OF $592.33 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU.

YOU THEN FILED SUIT IN THE UNITED STATES COURT OF CLAIMS IN THE CASE OF CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY V. UNITED STATES, CT.CL. NO. 333-57, IN WHICH YOU SOUGHT TO RECOVER THE SUM OF $41,793.88, INCLUDING THE DEDUCTION OF $212.05 MADE BECAUSE OF THE OVERCHARGE ON THE SHIPMENT COVERED BY BILL OF LADING NO. WT-8692932. BY JUDGMENT DATED JUNE 19, 1959, YOU WERE AWARDED THE AMOUNT OF $11,827.29 IN FULL SETTLEMENT OF THE CITED SUIT AND PURSUANT TO OUR SETTLEMENT CERTIFICATE DATED JULY 22, 1959, THE JUDGMENT WAS PAID IN FULL. YOU RECLAIMED THE AMOUNT OF $148.67 BY YOUR SUPPLEMENTAL BILL NO. 252469-C DATED SEPTEMBER 12, 1960, AND THAT CLAIM WAS DENIED ON THE THEORY THAT THE MATTER WAS RES JUDICATA BY LETTER DATED NOVEMBER 15, 1960, BECAUSE THE BILL OF LADING INVOLVED WAS INCLUDED IN THE CITED SUIT. IN A LETTER DATED APRIL 18, 1961, YOU REASSERTED YOUR CLAIM IN THE REDUCED AMOUNT OF $74.30, APPARENTLY TAKING THE POSITION THAT YOU WERE OVERCREDITED WITH $74.33 ON YOUR BILL NO. 252469 IN THE JUDGMENT OF JUNE 19, 1959, WHICH YOU APPLY AS A CREDIT AGAINST THE REFUND OF $148.67 MADE IN FEBRUARY 1947, ARRIVING AT A BALANCE OF $74.30 WHICH YOU NOW ASSERT IS STILL OUTSTANDING. BY LETTER DATED JUNE 30, 1961, THAT CLAIM WAS ALSO DENIED ON THE GROUNDS THAT THE MATTER WAS RES JUDICATA.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, PROVIDES IN PART THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE REFUND WHICH WAS NOT CREDITED AGAINST THE OVERCHARGE ON THE SHIPMENT FOR WHICH IT WAS INTENDED WAS MADE ON FEBRUARY 26, 1947, AND THE STATUTORY PERIOD FOR A CLAIM FOR REFUND OF THAT AMOUNT BEGAN TO RUN AT THAT TIME. THEREFORE, YOUR CLAIM BY SUPPLEMENTAL BILL NO. 252469-C DATED SEPTEMBER 12, 1960, RECEIVED HERE SEPTEMBER 13, 1960--- AFTER THE FULL 10 YEARS IN WHICH YOUR CLAIM COULD HAVE BEEN CONSIDERED HAD EXPIRED--- IS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940.

ACCORDINGLY, AND WITHOUT CONSIDERING FURTHER THE APPLICATION OF THE DOCTRINE OF RES JUDICATA TO THE INSTANT MATTER, THE ACTION TAKEN IN DENYING YOUR CLAIM APPEARS CORRECT AND IT IS SUSTAINED.