B-147497, AUG. 31, 1964

B-147497, AUG. 31, 1964

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 25, 1964, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN RETURNING 112 RECLAIM VOUCHERS TO THE STEVINSON AUTO AND ELECTRICAL SCHOOL, KANSAS CITY, MISSOURI, TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. * * *

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

OUR RECORDS SHOW THAT THE STEVINSON AUTO AND ELECTRICAL SCHOOL PRESENTED CLAIMS TO THIS OFFICE FOR AMOUNTS BELIEVED TO BE DUE FOR COURSES OF INSTRUCTIONS FURNISHED TO VETERANS ENROLLED AS ,PUBLIC LAW 16" OR "PUBLIC LAW 346" STUDENTS. THE VETERANS ADMINISTRATION SUBSEQUENTLY CONSIDERED THE CLAIMS AND MADE ALLOWANCES IN FAVOR OF THE SCHOOL BUT SUSPENDED PAYMENT OF PORTIONS OF THE SUMS CLAIMED IN ACCORDANCE WITH A DETERMINATION THAT CLAIMS FOR THE SERVICES INVOLVED ACCRUED DURING FOUR-WEEK INTERVALS INSTEAD OF ON THE DATES THE STUDENTS EITHER COMPLETED OR INTERRUPTED THEIR COURSES OF INSTRUCTIONS. APPARENTLY THE SCHOOL AGREED THAT NO RECLAIMS SHOULD BE SUBMITTED IN REGARD TO THE PUBLIC LAW 16 STUDENTS BECAUSE THEIR TRAINING WAS COVERED BY ONE OR MORE NEGOTIATED CONTRACTS WHICH CONTAINED A PROVISION FOR MAKING PAYMENT IN ARREARS ON A MONTHLY BASIS. THE SCHOOL SUBMITTED RECLAIMS INVOLVING ITS PUBLIC LAW 346 STUDENTS, BASED PRIMARILY UPON A CONTENTION THAT THE SCHOOL WAS NOT BOUND BY ANY CONTRACTUAL ARRANGEMENT WITH THE VETERANS ADMINISTRATION WITH RESPECT TO THE TRAINING AND EDUCATION OF THOSE STUDENTS. HOWEVER, THE SCHOOL HAD EXECUTED AN INSTITUTION CHARGE DATA FORM IN RELATION TO THE COURSES OF INSTRUCTION GIVEN OR TO BE FURNISHED ITS PUBLIC LAW 346 ENROLLEES, AND IN AN ATTACHMENT TO THAT FORM THE SCHOOL INDICATED THAT TUITION WOULD BE PAYABLE AT THE RATE OF $50 EACH FOUR WEEKS IN ARREARS. THUS, AND IN VIEW OF THE ADMINISTRATIVE REGULATIONS CITED BY THE SCHOOL, IT IS OBVIOUS THAT THE SCHOOL HAD EFFECTIVELY RESERVED THE RIGHT TO SUBMIT INVOICES FOR SERVICES RENDERED BEFORE INTERRUPTION OR COMPLETION OF THE COURSES OF INSTRUCTION.

AS HAS BEEN CONTENDED BY THE SCHOOL AND NOW BY YOU, THE SCHOOL WOULD HAVE HAD THE OPTION EITHER TO SUBMIT INVOICES ON A FOUR-WEEK TRAINING BASIS OR TO DELAY THE SUBMISSION OF INVOICES UNTIL AFTER THE COURSES OF INSTRUCTION HAS BEEN COMPLETED. IT NEVERTHELESS APPEARS THAT IT WOULD NOT HAVE BEEN WITHIN THE POWER OF THE SCHOOL TO ADOPT ONE OF THE TWO ALTERNATIVE COURSES OF ACTION AND THEREBY POSTPONE THE RUNNING OF THE 10-YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940. SEE L. E. MEYERS CO., INC. V. UNITED STATES, 105 CT.CL. 459; AND INTERNATIONAL POTATO CORPORATION V. UNITED STATES, 161 F.SUPP. 602. IT HAS BEEN HELD THAT A CAUSE OF ACTION SUABLE IN THE COURT OF CLAIMS ACCRUES FOR THE PURPOSES OF THE STATUTE OF LIMITATIONS APPLICABLE TO THAT COURT'S JURISDICTION WHEN A SUIT MAY FIRST BE LEGALLY INSTITUTED THEREON. BELL V. UNITED STATES, 133 CT.CL. 841, CERTIORARI DENIED, 352 U.S. 827. EMPIRE INSTITUTE OF TAILORING, INC. V. UNITED STATES, 161 F.SUPP. 409. WE BELIEVE THAT THE SAME RULE SHOULD BE APPLIED BY THIS OFFICE.

YOU SUGGEST THAT THE CASE OF ART CENTER SCHOOL V. UNITED STATES, 142 F.SUPP. 916, CITED BY OUR CLAIMS DIVISION, HAS BEEN ERRONEOUSLY APPLIED. WITHOUT ATTEMPTING AT THIS TIME TO MAKE A COMPLETE ANALYSIS OF THE FACTS INVOLVED IN THAT COURT DECISION AS TO WHICH FURTHER PROCEEDINGS WERE TO BE UNDERTAKEN TO DETERMINE THE AMOUNT DUE THE PLAINTIFF, IT SEEMS TO BE SUFFICIENT TO POINT OUT THAT THE DECISION OTHERWISE HELD THAT A NEW CAUSE OF ACTION AROSE WHEN EACH PAYMENT BECAME DUE AND THAT THE PORTION OF THE PLAINTIFF'S CLAIM WHICH ACCRUED MORE THAN SIX YEARS PRIOR TO THE FILING OF A COMPLAINT "IS BARRED BY THE 6-YEAR LIMITATION STATUTE.'

SIMILARLY, IN THIS CASE, THE CONCLUSION APPEARS TO BE REQUIRED THAT A NEW CAUSE OF ACTION AROSE WHEN EACH PAYMENT BECAME DUE THE CLAIMANT FOR SERVICES RENDERED AND WE FIND NO PROPER BASIS FOR CONSIDERING OTHER THAN THAT THE CLAIMS HERE INVOLVED AROSE OR ACCRUED DURING THE FOUR-WEEK INTERVALS OF THE COURSES, REGARDLESS OF ANY OPTION WHICH THE CLAIMANT HAD TO BILL FOR COMPLETED COURSES OR INTERRUPTED COURSES ONLY.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN THE MATTER MUST BE, AND IS, HEREBY SUSTAINED.