B-147431, OCT. 30, 1961

B-147431, OCT. 30, 1961

TO MR. JESUS M. LABRIAGA:

BY LETTER DATED OCTOBER 5, 1961, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED HERE YOUR UNDATED LETTER, WITH ENCLOSURES, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, RELATIVE TO YOUR CLAIM FOR MUSTERING-OUT PAY AND OVERSEAS PAY, BELIEVED DUE INCIDENT TO YOUR SERVICE FROM FEBRUARY 14, 1946, TO DATE OF DISCHARGE, JANUARY 7, 1949, AS A PHILIPPINE SCOUT.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 23, 1960, AND ON SEPTEMBER 29, 1960, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIMS WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES AS FOLLOWS (QUOTING FROM 31 U.S.C. 71A):

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

BY LETTER DATED FEBRUARY 27, 1961, YOU WERE AGAIN ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU EVIDENTLY ACKNOWLEDGE THAT YOUR CLAIM IS BARRED BY LAW BUT NEVERTHELESS YOU APPEAL TO THE PRESIDENT OF THE UNITED STATES TO TAKE FAVORABLE ACTION IN YOUR CASE ON THE BASIS THAT AS A NATIVE OF ANOTHER COUNTRY YOU WERE UNINFORMED OF THE BARRING ACT OF OCTOBER 9, 1940.

SECTION 236 OF THE REVISED STATUTES, 31 U.S.C. 71, PROVIDES AS FOLLOWS:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'

UNDER THE FOREGOING PROVISIONS THE ACTION OF OUR OFFICE ON CLAIMS BY AND AGAINST THE UNITED STATES IS MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT AND NO OFFICER IN THE EXECUTIVE BRANCH IS GIVEN AUTHORITY TO MODIFY THE ACTION TAKEN BY US ON CLAIMS SUCH AS YOURS. ALSO, WHILE THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES, THE LAW PROVIDES THAT SUCH CLAIMS MUST BE FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 2501.

AS WE EXPLAINED IN OUR LETTER OF FEBRUARY 27, 1961, THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUS OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONCERNING THE STATEMENT IN YOUR LETTER THAT THE BARRING ACT SHOULD NOT BE APPLIED IN YOUR CASE FOR THE REASON THAT YOU HAD NO KNOWLEDGE OF THE STATUTE, IT HAS BEEN HELD THAT GENERALLY, LACK OF KNOWLEDGE OF THE EXISTENCE OF A CAUSE OF ACTION OR OF FACTS WHICH CONSTITUTE THE CAUSE, WILL NOT POSTPONE THE OPERATION OF THE STATUTE OF LIMITATIONS. THOMAS V. UNITED STATES, 125 CT.CL. 76, AND ART CENTER SCHOOL V. UNITED STATES, 136 CT.CL. 218. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267.

WE TRUST THAT THIS LETTER WILL ENABLE YOU TO BETTER UNDERSTAND THE REASON WHY, UNDER EXISTING LAW, FURTHER CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM FOR MUSTERING-OUT PAY AND OVERSEAS PAY.