B-15487 February 16, 1948

B-15487: Feb 16, 1948

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Secretary: Reference is made to a letter dated June 14. Inasmuch as such question was at issue in several cases then pending in the Court of Claims (No. 46657. The Claims Division of the General Accounting Office will follow the principles of said cases in the settlement of the clams of claims covered thereby. The Attorney General rendered an opinion at the request of the Secretary of the Treasury as follows: "Answering your inquiry of March 20 whether you are debarred by the Tucker Act of March 3. From allowing claims filed in your Department more than six years after the rights have accrued for which the claims are made. I have the honor to advise you that the limitation in said act is by its terms applicable only to suits in the Court of Claims.

B-15487 February 16, 1948

The Honorable, The Secretary of the Treasury.

My dear Mr. Secretary:

Reference is made to a letter dated June 14, 1946, from the General Counsel of the Treasury Department, relative to claims filed in the General Accounting Office by customs inspectors for extra compensation alleged to be due for overtime and Sunday and holiday services. Said letter referred to certain letter from the Claims Division of this Office requesting administrative reports on such claims and raised two questions in connection there with, to wit, (1) whether any action should be taken to settle such claims as pertained o services rendered at free bridges or highways prior to the effective date of Public Law 328, June 3, 1944, 58 Stat. 269, inasmuch as such question was at issue in several cases then pending in the Court of Claims (No. 46657, Timothy E. O'Rourke v. United States; No. 46672, William E. Brown, Jr. V. United States); and (2) whether, in the settlement of such claims by the General Accounting Office, there should be applied the 6- year period of limitations applicable to suits in the Court of Claims or the 10 - year stature of limitations applicable to claims filed here.

On June 2, 1947, the Court of Claims decided all three of the above - cited cases in favor of the plaintiffs. This Office recommended to the Attorney General that the United States Supreme Court be petitioned for a writ of certiorari in said cases (B-53471, July 3, 1947), but recently it has been ascertained informally that the Department of Justice has decided not to file such a petition. Accordingly, the Claims Division of the General Accounting Office will follow the principles of said cases in the settlement of the clams of claims covered thereby.

With respect to the period of limitations applicable to such claims as may be filed here, it has been concluded, after thorough consideration, that the law leaves the General Accounting Office no alternative but to apply the 10 - year period prescribed by the act of October 9, 1940, 54 Stat. 1061. The 6 - year period of limitations contained in section 156 of the Judicial Code, 28 U. S. C. 262, 36 Stat. 1139 has been construed as not affecting the jurisdiction of any other forum of the Government authority to settle or adjust claims. As far back as March 23, 1894 (20 Op. Atty. Gen. 753), the Attorney General rendered an opinion at the request of the Secretary of the Treasury as follows:

"Answering your inquiry of March 20 whether you are debarred by the Tucker Act of March 3, 1887, chapter 359, section 1, from allowing claims filed in your Department more than six years after the rights have accrued for which the claims are made, I have the honor to advise you that the limitation in said act is by its terms applicable only to suits in the Court of Claims, and does not restrict your jurisdiction in any way."

In McClure v. United States, 19 C. Cls. 18, 25, involving the same question, it was stated:

"*** Congress was not considering the subject of the settlement of claims before the several departments. When therefore, it provided that "every claim cognizable by the Court of Claims shall be forever barred, unless the petition *** be filed in the court *** within six years after the claim first accrues,' it meant barred from the general jurisdiction of the court to enter judgment against the United States, and not absolutely barred from consideration everywhere, and especially not from examination and settlement in the department where claims were and still are mostly settled. Such was the interpretation practically adopted immediately on the passage of the act, and continued without objection to the present time in the departments. Claims have uniformly been taken up there, audited, adjusted, and settled without reference to the bar enacted in the Court of Claims act."

In a decision of August 1, 1887, the Second Comptroller of the Treasury held (Volume III, page 353, paragraph 1375, Digest of Decisions of Second Comptroller):

"Section 1069 of the Revised Statutes and the act of March 3, 1887 (24 Stat., 505), respecting the jurisdiction of the Court of Claims, provide a statute of limitations for that court only. The accounting officers are not justified for that court only. The stringent than the general principles of equity that state demands will be refused consideration."

Then, after enactment of the Dockery Act of 1894, July 31, 1928, Stat. 205, creating the office of Comptroller of the Treasury, the same view was expressed in 5 Comp. Dec. 255, the syllabus of said decision reading:

"The prosecution of a claim in the Court of Claims, and the rendition by the court of a judgement in favor of the claimant for that portion of his claim which was not barred by the statute of limitations, do not preclude the allowance by the accounting officers of that portion of the claim so barred in that court."

This same principle has consistently been followed by the General Accounting Office since enactment of the Budget and Accounting Act, 1921, 42 Stat. 20. The act of October 9, 1940, was enacted pursuant to the recommendation of former comptroller General Brown contained in the Annual Report of the Comptroller General for the fiscal year 1939. As a basis for such recommendation it was stated (page 91):

"Claims are submitted to the General Accounting Office years after such claims first accrued, and not infrequently from 10 to 25 years after the rights of the claimants arose. Except in several instances where the Congress has recognized the necessity for a statutory limitation on the assertion of claims against the United States, there is no clear statutory inhibition against the consideration of claims irrespective of the time in which submissions are made. Needless to say the effort to develop old claims requires a vast amount of time both in the General Accounting Office and the administrative offices involved and the resultant cost, from which the United States obtains no benefit, is so great as to make it prejudicial to the interests of the United States."

Thus, by section 1 of the act of October 9, 1940, the Congress prescribed a 10 - year period of limitations with respect to claims against the United States "cognizable by the General Accounting Office under section 305 of the Budget and Accounting Act of June 10, 1921 (42 Stat. 24) and the act of April 10, 1928 (45 Stat. 413)." Such action was undertaken with full recognition given the 6 - year statute applicable to suits in the Court of Claims on that very same class of claims. See Senate Report No. 1338, 76th Congress. Consequently, if any effect whatever is to be accorded said act of October 9, 1940, it must be taken as indicative of an intent on the part of the Congress to authorize the General Accounting Office to settle claims extending over a longer period than that within which suit could be brought thereon in the Court of Claims. While I fully appreciate the difficulties which may be encountered by your Department in examining and verifying claims covering 10 - year periods, I am sure you will agree that under existing law claims filed here must settled on the basis outlined herein.

Respectfully,

(SIGNED) Frank L. Yates Acting Comptroller General of the United States.