B-34728, JUN 3, 1943

B-34728: Jun 3, 1943

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IT APPEARS FROM THE RECORD THAT THE CLAIM WAS PRESENTED UNDER THE PROVISIONS OF THE ACT OF JANUARY 2. THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY ARE HEREBY AUTHORIZED TO APPOINT A CLAIMS COMMISSION OR COMMISSIONS. INCLUDING PLACES LOCATED THEREIN WHICH ARE UNDER THE TEMPORARY OR PERMANENT JURISDICTION OF THE UNITED STATES. SUCH ACTION WAS TAKEN OVER THE OBJECTION OF ONE OF THE MEMBERS OF THE COMMISSION. WHO WAS ALSO A MEMBER OF THE FIRST COMMISSION AND WAS THE ONLY MEMBER OF THE FIRST COMMISSION SERVING ON THE SECOND COMMISSION. THE SECOND COMMISSION WAS WITHOUT AUTHORITY TO RECONSIDER IT WITHOUT SPECIFIC AUTHORIZATION THEREFOR FROM THE SECRETARY OF WAR. THE VOUCHER IS SUBMITTED BY YOU BECAUSE OF YOUR DOUBT AS TO THE LEGALITY OF THE ACTION OF THE SECOND COMMISSION IN RECONSIDERING AND APPROVING THE CLAIM.

B-34728, JUN 3, 1943

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL W. S. KELLER, F.D., U.S. ARMY:

A.P.O. 862, C/O POSTMASTER

NEW YORK, NEW YORK

THROUGH CHIEF OF FINANCE, WAR DEPARTMENT:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 8, 1943, REQUESTING DECISION RELATIVE TO YOUR AUTHORITY TO MAKE PAYMENT ON A TRANSMITTED VOUCHER IN THE AMOUNT OF $138.64 IN FAVOR OF WILLIAM C. WILLAR, 17 MONKSTOWN ROAD, ST. JOHN'S, NEWFOUNDLAND, FOR DAMAGES TO HIS AUTOMOBILE AS THE RESULT OF A COLLISION BETWEEN IT AND AN ARMY TRUCK AT THE INTERSECTION OF EMPIRE AVENUE, CIRCULAR ROAD AND KING'S BRIDGE ROAD IN ST. JOHN'S ON DECEMBER 19, 1941.

IT APPEARS FROM THE RECORD THAT THE CLAIM WAS PRESENTED UNDER THE PROVISIONS OF THE ACT OF JANUARY 2, 1942, 55 STAT. 880, PROVIDING FOR THE SETTLEMENT OF CLAIMS FOR DAMAGES OCCASIONED BY ARMY, NAVY AND MARINE CORPS FORCES IN FOREIGN COUNTRIES, THE FIRST SECTION OF WHICH, PRIOR TO ITS AMENDMENT BY PUBLIC LAW 39, APPROVED APRIL 22, 1943, PROVIDED:

"THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941, TO EXIST, AND FOR THE PURPOSE OF PROMOTING AND MAINTAINING FRIENDLY RELATIONS BY THE PROMPT SETTLEMENT OF MERITORIOUS CLAIMS, THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY ARE HEREBY AUTHORIZED TO APPOINT A CLAIMS COMMISSION OR COMMISSIONS, COMPOSED OF OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS, AS THE CASE MAY BE, TO CONSIDER, ADJUST, DETERMINE, AND MAKE PAYMENTS IN FINAL SETTLEMENT OF BONA FIDE CLAIMS ON ACCOUNT OF DAMAGES CAUSED BY ARMY, NAVY, AND MARINE CORPS FORCES, OR INDIVIDUAL MEMBERS THEREOF, IN A FOREIGN COUNTRY OR POSSESSION THEREOF, INCLUDING PLACES LOCATED THEREIN WHICH ARE UNDER THE TEMPORARY OR PERMANENT JURISDICTION OF THE UNITED STATES, TO THE PROPERTY, PUBLIC OR PRIVATE, OR THE PERSONS OF INHABITANTS OF SUCH FOREIGN COUNTRIES, WHERE THE AMOUNT OF SUCH CLAIM DOES NOT EXCEED $1,000: PROVIDED, THAT NO CLAIM SHALL BE CONSIDERED BY SUCH COMMISSIONS UNLESS PRESENTED WITHIN ONE YEAR FROM THE DATE OF THE ACCRUAL OF SAID MISSIONS UNDER THE AUTHORITY OF THIS ACT SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES, NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY."

IT APPEARS FROM A REPORT OF APRIL 20, 1943, OF THE CLAIMS COMMISSION, COMPOSED OF THREE ARMY OFFICERS, APPOINTED TO CONSIDER SUCH CLAIMS, THAT THE CLAIM HAD PREVIOUSLY BEEN CONSIDERED BY A FORMER CLAIMS COMMISSION, COMPOSED IN PART OF DIFFERENT PERSONNEL, AND HAD BEEN DENIED BY THE LATTER ON MAY 26, 1942, BUT THAT A MAJORITY OF THE SECOND COMMISSION VOTED TO RECONSIDER THE CLAIM "IN LIGHT OF DEVELOPMENTS SUBSEQUENT TO THE DENIAL OF THE CLAIM." SUCH ACTION WAS TAKEN OVER THE OBJECTION OF ONE OF THE MEMBERS OF THE COMMISSION, WHO WAS ALSO A MEMBER OF THE FIRST COMMISSION AND WAS THE ONLY MEMBER OF THE FIRST COMMISSION SERVING ON THE SECOND COMMISSION, ON THE STATED GROUND THAT SINCE THE CLAIM HAD BEEN CONSIDERED AND DENIED BY THE FIRST COMMISSION, THE SECOND COMMISSION WAS WITHOUT AUTHORITY TO RECONSIDER IT WITHOUT SPECIFIC AUTHORIZATION THEREFOR FROM THE SECRETARY OF WAR. HOWEVER, THE COMMISSION BY A MAJORITY VOTE PROCEEDED TO RECONSIDER AND APPROVE THE CLAIM IN THE AMOUNT OF $152.50, CANADIAN CURRENCY. THE VOUCHER IS SUBMITTED BY YOU BECAUSE OF YOUR DOUBT AS TO THE LEGALITY OF THE ACTION OF THE SECOND COMMISSION IN RECONSIDERING AND APPROVING THE CLAIM.

THE REPORT OF THE FIRST COMMISSION AND THE REASONS FOR ITS ACTION DO NOT APPEAR IN THE RECORD, BUT IS APPEARS FROM THE SECOND COMMISSION'S REPORT OF APRIL 20, 1943, THAT SUBSEQUENT TO THE DENIAL OF THE CLAIM BY THE FIRST COMMISSION THE CLAIMANT INSTITUTED SUIT IN A LOCAL COURT AGAINST THE DRIVER OF THE ARMY TRUCK FOR DAMAGES TO AND THE LOSS OF USE OF HIS CAR IN A TOTAL AMOUNT OF $197.50 AND OBTAINED JUDGMENT IN THE AMOUNT OF $152.50 AND COSTS. THERE IS NO SHOWING IN THE RECORD AS TO WHETHER THE JUDGMENT HAS BEEN SATISFIED. ONE OF THE DEFENSES ASSERTED IN THE SUIT WAS THAT THE COLLISION WAS DUE TO THE FAULT OF THE CLAIMANT AND, WHILE THAT CONTENTION WAS NOT SUSTAINED BY THE COURT, IT WOULD APPEAR, UNDER ALL THE CIRCUMSTANCES AS DISCLOSED BY THE RECORD, THAT THE ACTION OF THE FIRST COMMISSION IN DENY THE CLAIM MAY HAVE BASED UPON A FINDING BY IT THAT THE COLLISION WAS DUE TO THE FAULT OF THE CLAIMANT. IT IS UNDERSTOOD FROM THE COMMISSION'S REPORT THAT THE "DEVELOPMENTS SUBSEQUENT TO THE DENIAL OF THE CLAIM" WHICH PROMPTED IT- APPARENTLY, SO FAR AS THE RECORD SHOWS, OF ITS OWN INITIATIVE-- TO REOPEN THE CLAIM, CONSISTED SOLELY OF THE FACT THAT THE CLAIMANT HAD FILED THE SUIT REFERRED TO AGAINST THE DRIVER OF THE ARMY TRUCK AND OBTAINED A JUDGMENT THEREIN, THUS ESTABLISHING THAT, IN THE COURT'S OPINION, THE COLLISION WAS DUE TO THE FAULT OF THE TRUCK DRIVER-- IN ANY EVENT, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ACTION OF THE SECOND COMMISSION WAS THE RESULT OF NEWLY DISCOVERED EVIDENCE NOT PRESENTED TO THE FIRST COMMISSION.

AS INDICATED ABOVE, THE ACT OF JANUARY 2, 1942, AUTHORIZED THE APPOINTMENT OF CLAIMS COMMISSIONS TO CONSIDER, ADJUST, DETERMINE AND MAKE FINAL PAYMENTS IN FINAL SETTLEMENT OF CLAIMS THEREUNDER AND PROVIDED THAT ANY SUCH SETTLEMENTS MADE BY SUCH COMMISSIONS UNDER THE AUTHORITY OF THE ACT SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES. THIS PROVISION APPEARS TO COMPARE, BY ANALOGY, WITH THE WELL ESTABLISHED PRINCIPLE OF LONG STANDING THAT AN OFFICER OF THE GOVERNMENT MAY NOT REOPEN A SETTLEMENT OR REVERSE A DECISION MADE BY HIS PREDECESSOR IN OFFICE EXCEPT UPON PRODUCTION OF NEW AND MATERIAL EVIDENCE, OR TO CORRECT MANIFEST MISTAKES OF FACT SUCH AS ERRORS IN CALCULATIONS, OR FOR FRAUD OR COLLUSION. SEE 16 COMP.GEN. 51, AND CASES THERE CITED. IT IS NOT BELIEVED THAT SUCH FINALITY AS IS PROVIDED BY THE ACT WAS INTENDED TO RELATE ONLY TO CLAIMS WHICH HAD BEEN APPROVED BY THE COMMISSION AND PAID IN THE AMOUNT APPROVED, SINCE SETTLEMENTS MAY BE IN THE FORM OF A DISAPPROVAL OR DISALLOWANCE AS WELL AS AN APPROVAL OR ALLOWANCE OF A CLAIM. ANY OTHER VIEW WOULD, EXCEPT IN CASES WHERE THERE HAD BEEN AN ALLOWANCE AND PAYMENT OF A CLAIM, PERMIT LATER COMMISSIONS TO RECONSIDER AND APPROVE CLAIMS PREVIOUSLY FULLY CONSIDERED AND DENIED BY FORMER COMMISSIONS, EVEN THOUGH THERE MAY HAVE BEEN PRESENTED TO THE LATER COMMISSION NO NEW AND MATERIAL EVIDENCE OR THE ACTION MAY NOT HAVE BEEN NECESSARY TO CORRECT MANIFEST MISTAKES OF FACT SUCH AS ERRORS IN CALCULATION, OR FOR FRAUD OR COLLUSION, AND THUS PERMIT THE REOPENING OF SUCH CLAIMS WITHOUT CAUSE.

IN THE PRESENT CASE, THERE IS, AS STATED ABOVE, NO SHOWING THAT THERE WAS PRESENTED TO THE SECOND COMMISSION ANY NEW AND MATERIAL EVIDENCE NOT PRESENTED TO AND CONSIDERED BY THE FIRST COMMISSION. ON THE CONTRARY, INSOFAR AS THE PRESENT RECORD DISCLOSES, THERE IS NOTHING TO INDICATE THAT THE ACTION OF THE SECOND COMMISSION MAY NOT HAVE BEEN BASED ON NO MORE THAN THE FACT THAT THE COURT IN THE SUIT OF THE CLAIMANT AGAINST THE TRUCK DRIVER REACHED A DIFFERENT CONCLUSION FROM THAT APPARENTLY REACHED BY THE FIRST COMMISSION.

ACCORDINGLY, ON THE PRESENT RECORD, THE ACTION OF THE FIRST COMMISSION IN DENYING THE CLAIM MUST BE CONSIDERED AS FINAL, AND PAYMENT ON THE VOUCHER WHICH, TOGETHER WITH RELATED PAPERS, IS RETURNED HEREWITH, IS NOT AUTHORIZED.