B-172168, JUL 9, 1971, 51 COMP GEN 20

B-172168: Jul 9, 1971

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CARRIERS - COMMUNICATIONS - STATUTES OF LIMITATION THE CLAIM SUBMITTED BY THE WESTERN UNION TELEGRAPH COMPANY WITHIN THE 10- YEAR LIMITATION PERIOD FOR FILING CLAIMS WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) FOR SERVICES DENIED ADMINISTRATIVELY ON THE BASIS THE CLAIM WAS BARRED BY THE 1-YEAR LIMITATION OF ACTION PROVISION IN THE COMMUNICATIONS ACT 47 U.S.C. 415(A). IS COGNIZABLE UNDER 31 U.S.C. 71 AND 236. DOES NOT AFFECT THE RIGHT OF FIRMS PROVIDING SERVICE UNDER THE COMMUNICATIONS ACT TO HAVE THEIR CLAIMS CONSIDERED BY GAO IF PRESENTED WITHIN 10 FULL YEARS AFTER THE DATES ON WHICH THE CLAIMS FIRST ACCRUED. 1971: REFERENCE IS MADE TO A LETTER DATED APRIL 27. THE CLAIM WAS SUBMITTED TO OUR OFFICE FOR CONSIDERATION UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. 71.

B-172168, JUL 9, 1971, 51 COMP GEN 20

CARRIERS - COMMUNICATIONS - STATUTES OF LIMITATION THE CLAIM SUBMITTED BY THE WESTERN UNION TELEGRAPH COMPANY WITHIN THE 10- YEAR LIMITATION PERIOD FOR FILING CLAIMS WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) FOR SERVICES DENIED ADMINISTRATIVELY ON THE BASIS THE CLAIM WAS BARRED BY THE 1-YEAR LIMITATION OF ACTION PROVISION IN THE COMMUNICATIONS ACT 47 U.S.C. 415(A), IS COGNIZABLE UNDER 31 U.S.C. 71 AND 236, AS THE TIME LIMITATIONS FOR THE COMMENCEMENT OF "ACTIONS AT LAW" PRESCRIBED BY THE COMMUNICATIONS ACT AND THE INTERSTATE COMMERCE ACT DO NOT AFFECT THE JURISDICTION OF THE GAO UNLESS SPECIFICALLY PROVIDED BY STATUTE, AND THE 3-YEAR LIMITATION FOR FILING TRANSPORTATION CLAIMS WITH GAO PRESCRIBED BY SECTION 322 OF THE TRANSPORTATION ACT, AS AMENDED, 49 U.S.C. 66, DOES NOT AFFECT THE RIGHT OF FIRMS PROVIDING SERVICE UNDER THE COMMUNICATIONS ACT TO HAVE THEIR CLAIMS CONSIDERED BY GAO IF PRESENTED WITHIN 10 FULL YEARS AFTER THE DATES ON WHICH THE CLAIMS FIRST ACCRUED.

TO DIRECTOR, DEFENSE COMMUNICATIONS AGENCY, JULY 9, 1971:

REFERENCE IS MADE TO A LETTER DATED APRIL 27, 1971, FILED NO. 105, IN RESPONSE TO OUR REQUEST FOR A REPORT AND RECOMMENDATIONS CONCERNING A CLAIM SUBMITTED BY THE WESTERN UNION TELEGRAPH COMPANY, OFFICE OF THE GENERAL COUNSEL, NEW YORK, NEW YORK, FOR $45,360, UNDER CONTRACT NO. DCA- 20-111.

THE CLAIM WAS SUBMITTED TO OUR OFFICE FOR CONSIDERATION UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. 71, WITH THE ADVICE THAT THE CLAIM HAD BEEN DENIED ADMINISTRATIVELY ON THE BASIS THAT IT IS BARRED BY THE 1 YEAR LIMITATION OF ACTIONS PROVISION IN THE COMMUNICATIONS ACT, 47 U.S.C. 415(A). IT WAS CONTENDED THAT THE TIME IN WHICH THE CLAIM MAY BE PRESENTED AND THE CHARGES COLLECTED IS SUBJECT TO THE PROVISIONS OF 28 U.S.C. 2401 OR 2501 (ALTERNATIVELY BECAUSE OF JURISDICTIONAL AMOUNTS), ESTABLISHING 6-YEAR PERIODS IN WHICH TO COMMENCE ACTIONS AGAINST THE UNITED STATES IN THE UNITED STATES DISTRICT COURTS AND IN THE COURT OF CLAIMS. AS PROVIDED IN 31 U.S.C. 71(A) AND 237, THERE IS A TIME LIMITATION OF 10 YEARS FOR THE FILING OF CLAIMS OR DEMANDS AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE UNDER 31 U.S.C. 71 AND 236.

THE WESTERN UNION TELEGRAPH COMPANY PROVIDED COMMUNICATION SERVICES AT LOCATIONS INCLUDING THE CENTER AT FORT DETRICK, MARYLAND, AND TWO OTHER CENTERS AT SYRACUSE, NEW YORK, AND ALBANY, GEORGIA. ON MARCH 25, 1965, AN ORDER WAS ISSUED FOR THE MODIFICATION OF ALL IN-SERVICE AND ON ORDER DISC MESSAGE STORAGE UNIT EQUIPMENT, ALSO KNOWN AS MASS MEMORY UNITS, AND TO FURNISH ONE ADDITIONAL MODIFIED MASS MEMORY UNIT IN EACH CENTER. ON JULY 17, 1967, THE GOVERNMENT WAS GIVEN AN IN-SERVICE NOTICE WITH MONTHLY CHARGES FOR FORT DETRICK. ALTHOUGH THE CHARGES WERE INVOICED ON A COST- PER-CENTER BASIS, THE GOVERNMENT AUTHORIZED THE STARTING OF MONTHLY CHARGES RETROACTIVELY TO JANUARY 1, 1967, THE SERVICE DATE IN THE JULY 17, 1967, NOTICE.

IN MAY 1970, AN INVOICE WAS SUBMITTED FOR THE ADDITIONAL MODIFIED MASS MEMORY UNIT INSTALLED IN THE FORT DETRICK CENTER. THE INVOICE WAS PREPARED ON THE BASIS OF APPLYING A MONTHLY RATE OF $1,620 FOR USE OF THE PARTICULAR EQUIPMENT DURING THE PERIOD JANUARY 1967 THROUGH MAY 1970. THE WESTERN UNION TELEGRAPH COMPANY HAS BEEN PAID AT THE MONTHLY RATE FROM MAY 1969 BUT THE GOVERNMENT REFUSED PAYMENT FOR THE PERIOD JANUARY 1967 THROUGH APRIL 1969 BASED UPON THE 1-YEAR LIMITATION OF ACTIONS PROVISION IN THE COMMUNICATIONS ACT. THE COMPANY IS NOW CLAIMING THE AMOUNT OF $45,360, APPLICABLE TO THE FORT DETRICK CENTER, AT THE RATE OF $1,620 PER MONTH, FOR A PERIOD OF 28 MONTHS, JANUARY 1967, TO APRIL 1969, INCLUSIVE. THERE IS NO DISPUTE CONCERNING THE AMOUNT OF THE CLAIM.

SUBSECTION 415(A) OF THE COMMUNICATIONS ACT, 47 U.S.C. 415(A), PROVIDES THAT ALL ACTIONS AT LAW BY CARRIERS FOR THE RECOVERY OF THEIR LAWFUL CHARGES, OR ANY PART THEREOF, SHALL BE BEGUN WITHIN 1 YEAR FROM THE TIME THE CAUSE OF ACTION ACCRUES, AND NOT AFTER. THE ACT DOES NOT SPECIFICALLY PROVIDE THAT CLAIMS OF CARRIERS AGAINST THE UNITED STATES ARE SUBJECT TO THE TIME LIMITATION OF 1 YEAR FOR THE COMMENCEMENT OF ACTIONS AT LAW.

THE WESTERN UNION TELEGRAPH COMPANY CONSIDERS THE SITUATION TO BE COMPARABLE TO ACTIONS BY CARRIERS SUBJECT TO REGULATION UNDER THE INTERSTATE COMMERCE ACT AND THE TRANSPORTATION ACT OF 1940 WHICH WERE DETERMINED BY THE COURTS TO BE SUBJECT TO THE GENERAL 6-YEAR STATUTES OF LIMITATION AFFECTING THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS AND THE COURT OF CLAIMS, AND NOT TO THE LESSER 2-YEAR PERIOD OF LIMITATION SPECIFIED IN THE INTERSTATE COMMERCE ACT PRIOR TO ITS AMENDMENT IN 1958. IT IS, HOWEVER, THE POSITION OF THE DEFENSE COMMUNICATIONS AGENCY THAT AMENDMENTS TO THE TRANSPORTATION ACT OF 1940 AND THE INTERSTATE COMMERCE ACT BY PUBLIC LAW 85-762, APPROVED AUGUST 26, 1958, 72 STAT. 859, CLEARLY SHOW THE LEGISLATIVE INTENT TO APPLY THE STATUTE OF LIMITATIONS TO ALL PARTIES EQUALLY, INCLUDING THE GOVERNMENT, AND THAT THIS VITIATES THE EFFECT OF EARLIER COURT HOLDINGS.

THE QUESTION WHETHER THE UNITED STATES DISTRICT COURTS AND THE COURT OF CLAIMS HAVE JURISDICTION TO CONSIDER ACTIONS BY CARRIERS SUBJECT TO REGULATION UNDER THE COMMUNICATIONS ACT, IF SUCH ACTIONS ARE NOT COMMENCED WITHIN 1 YEAR FROM THE TIME THE CAUSES OF ACTION ACCRUED, DOES NOT APPEAR TO BE MATERIAL IN THIS CASE. THE WESTERN UNION TELEGRAPH COMPANY HAS NOT FILED AN ACTION EITHER IN A UNITED STATES DISTRICT COURT OR IN THE COURT OF CLAIMS, BUT IT HAS PRESENTED A CLAIM TO OUR OFFICE FOR CONSIDERATION UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. 71. AS ABOVE INDICATED, THERE IS A TIME LIMITATION OF 10 YEARS FOR THE FILING OF CLAIMS OR DEMANDS AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE UNDER 31 U.S.C. 71 AND 236.

THE LIMITATION OF ACTIONS PROVISIONS OF THE COMMUNICATIONS ACT AND THE INTERSTATE COMMERCE ACT, AS AMENDED, 47 U.S.C. 415(A) AND 49 U.S.C. 16(3)(A), RESPECTIVELY, REFER TO "ACTIONS AT LAW" WHICH PHRASE NORMALLY WOULD BE CONSIDERED AS RELATING TO JUDICIAL PROCEEDINGS. SEE 1 C.J.S. 943. IT HAS BEEN OUR POSITION THAT THE TIME LIMITATIONS FOR THE COMMENCEMENT OF SUCH "ACTIONS AT LAW" DO NOT AFFECT THE JURISDICTION OF OUR OFFICE TO CONSIDER CLAIMS AGAINST THE UNITED STATES AND THAT, UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR BY STATUTE, WE ARE REQUIRED, AS A GENERAL RULE, TO CONSIDER ANY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE IF IT IS PRESENTED WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

IN RECOGNITION OF THE 10-YEAR PERIOD OF LIMITATION FOR THE SUBMISSION OF CLAIMS TO OUR OFFICE, SECTION 322 OF THE TRANSPORTATION ACT OF 1940 WAS AMENDED BY PUBLIC LAW 85-762 TO PROVIDE, AT 49 U.S.C. 66, THAT EVERY CLAIM COGNIZABLE BY OUR OFFICE FOR TRANSPORTATION WITHIN THE PURVIEW OF SECTION 322 SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED WITHIN 3 YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT REFUND OF OVERPAYMENT OF SUCH CHARGES OR (4) DEDUCTION MADE PURSUANT TO SECTION 322, WHICHEVER IS LATER.

WE DO NOT REGARD THE AMENDMENT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940 AS HAVING AFFECTED IN ANY MANNER THE RIGHT OF FIRMS PROVIDING SERVICES UNDER THE COMMUNICATIONS ACT TO HAVE THEIR CLAIMS CONSIDERED BY OUR OFFICE IF PRESENTED WITHIN 10 FULL YEARS AFTER THE DATES ON WHICH SUCH CLAIMS FIRST ACCRUED.

IN THE CIRCUMSTANCE, WE CONCLUDE THAT THE AMOUNT CLAIMED BY THE WESTERN UNION TELEGRAPH COMPANY FOR SERVICES RENDERED AT THE FORT DETRICK, MARYLAND, COMMUNICATIONS CENTER, DURING 1967, 1968 AND PART OF 1969, SHOULD BE PAID IF OTHERWISE CORRECT.