B-93649, JUNE 26, 1950, 29 COMP. GEN. 517

B-93649: Jun 26, 1950

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FOR SERVICES PERFORMED ON SUNDAYS DURING A PARTICULAR MONTH IS TO BE REGARDED AS THE DAY THE SERVICES WERE RENDERED. 1950: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11. SAID DISALLOWANCE WAS PREMISED UPON THE TERMS OF THE ACT OF OCTOBER 9. THE FACT THAT YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE UNTIL APRIL 30. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. YOU QUOTE THE FOLLOWING FROM PAGE 51 OF THE OPINION IN THE O-ROURKE CASE: THE PLAINTIFF'S ORIGINAL PETITION WAS FILED ON OCTOBER 22. SINCE THE DAYS IN OCTOBER 1939 PRIOR TO THE 22ND WERE MORE THAN SIX YEARS BEFORE THE FILING OF THE PETITION. THE QUESTION ARISES WHETHER THE RIGHT TO RECOVER FOR THOSE DAYS IS BARRED BY THE STATUTE OF LIMITATIONS. ( JUDICIAL CODE SEC. 156.

B-93649, JUNE 26, 1950, 29 COMP. GEN. 517

CLAIMS - EXTRA COMPENSATION - TIME LIMITATION FOR FILING IN GENERAL ACCOUNTING OFFICE UNDER THE ACT OF OCTOBER 9, 1940, BARRING CONSIDERATION OF CLAIMS AGAINST THE UNITED STATES NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH A CLAIM FIRST ACCRUED, THE DATE OF ACCRUAL OF THE CLAIM OF A CUSTOMS SERVICE EMPLOYEE FOR EXTRA COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED, FOR SERVICES PERFORMED ON SUNDAYS DURING A PARTICULAR MONTH IS TO BE REGARDED AS THE DAY THE SERVICES WERE RENDERED. O-ROURKE V. UNITED STATES, 109 C.1CLS. 33, APPLYING A "MONTHLY ACCRUAL" RULE, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO FLACK G. MILNER, JUNE 26, 1950:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1950, REQUESTING REVIEW OF THAT PART OF SETTLEMENT DATED DECEMBER 19, 1949, WHICH DISALLOWED THAT PORTION OF YOUR CLAIM FOR EXTRA COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED (19 U.S.C. 267), COVERING SERVICES ON SUNDAYS DURING THE MONTH OF APRIL 1938, AS AN EMPLOYEE OF THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT. SAID DISALLOWANCE WAS PREMISED UPON THE TERMS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, HEREINAFTER QUOTED, AND THE FACT THAT YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE UNTIL APRIL 30, 1948.

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, SUPRA, PROVIDES AS FOLLOWS:

THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) 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), 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: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

YOUR REQUEST FOR REVIEW STEMS FROM THE ACTION OF THIS OFFICE IN APPLYING THE 10-YEAR PERIOD PRESCRIBED IN THAT STATUTE UPON THE BASIS THAT THE CLAIM FOR THE EXTRA COMPENSATION ACCRUED UPON A DAILY BASIS RATHER THAN UPON A MONTHLY BASIS UNDER THE SO-CALLED MONTHLY ACCRUAL RULE APPLIED BY THE COURT OF CLAIMS IN O-ROURKE V. UNITED STATES, 109 C.1CLS. 33. IN URGING THE APPLICATION OF THE LATTER RULE, YOU QUOTE THE FOLLOWING FROM PAGE 51 OF THE OPINION IN THE O-ROURKE CASE:

THE PLAINTIFF'S ORIGINAL PETITION WAS FILED ON OCTOBER 22, 1945. CLAIMS COMPENSATION FOR EXTRA SERVICES RENDERED ON VARIOUS DAYS DURING THE WHOLE MONTH OF OCTOBER 1939. SINCE THE DAYS IN OCTOBER 1939 PRIOR TO THE 22ND WERE MORE THAN SIX YEARS BEFORE THE FILING OF THE PETITION, THE QUESTION ARISES WHETHER THE RIGHT TO RECOVER FOR THOSE DAYS IS BARRED BY THE STATUTE OF LIMITATIONS. ( JUDICIAL CODE SEC. 156, 36 STAT.1139, 28 U.S.C. 262.) IN OUR FINDING 2 IT APPEARS THAT THE GOVERNMENT'S PRACTICE WAS NOT TO PAY FOR EXTRA SERVICES UNTIL ON OR AFTER THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THE SERVICES WERE RENDERED. THERE WAS, THEREFORE, NO FAILURE OR REFUSAL TO PAY, AND NO CAUSE OF ACTION ACCRUED FOR SERVICES RENDERED IN OCTOBER 1939, UNTIL AT LEAST NOVEMBER 1, 1939. THE PLAINTIFF'S RIGHT TO RECOVER FOR THEM IS NOT BARRED BY THE STATUTE.

ALSO, YOU QUOTE THE REFERRED-TO "FINDING 2," AS FOLLOWS:

SUCH EXTRA COMPENSATION AS PLAINTIFF WAS PAID FOR SERVICES RENDERED PRIOR TO FILING SUIT OCTOBER 22, 1945, WAS PAID NOT EARLIER THAN THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THE SERVICES WERE RENDERED.

FURTHERMORE, YOU ASSERT THAT THE CIRCUMSTANCES GIVING RISE TO APPLICATION OF THE "MONTHLY ACCRUAL" RULE UNDER SECTION 156 OF THE (OLD) JUDICIAL CODE (SECTION 2501 OF THE NEW, 62 STAT. 976) ARE EQUALLY FOR APPLICATION IN APPLYING THE ACT OF OCTOBER 9, 1940; AND YOU STATE THAT NO SUIT COULD HAVE BEEN BROUGHT BY YOU FOR THE EXTRA SERVICES YOU PERFORMED DURING THE MONTH OF APRIL 1938 UNTIL IT COULD BE ESTABLISHED THAT THE GOVERNMENT REFUSED OR FAILED TO PAY FOR SUCH SERVICES, WHICH COULD NOT HAVE BEEN EARLIER THAN MAY 1, 1938.

SECTION 156 OF THE OLD JUDICIAL CODE, 36 STAT. 1139, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE COURT OF CLAIMS SHALL BE FOREVER BARRED UNLESS THE PETITION SETTING FORTH A STATEMENT THEREOF IS FILED IN THE COURT * * * WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED.

IT MAY BE STATED AT THE OUTSET THAT THE PRACTICE OF THIS OFFICE WITH RESPECT TO THE APPLICATION OF THE DAILY ACCRUAL RULE IN CONNECTION WITH THE 10-YEAR PERIOD PRESCRIBED BY THE 1940 STATUTE WAS IN LINE WITH WHAT APPEARED TO BE THE PRACTICE OF THE COURT OF CLAIMS IN APPLYING THE LIMITATION JUST QUOTED, AS EVIDENCED BY JUDGMENTS RENDERED IN BOOK V. UNITED STATES, 31 C.1CLS. 272; BALE V. UNITED STATES, 89 ID. 532; ANDERSON V. UNITED STATES, 92 ID. 308; AND LONG V. UNITED STATES, 93 ID. 544. HOWEVER THAT MAY BE, IT IS CONCLUDED, FOR THE REASONS HEREINAFTER STATED, THAT NO CHANGE IN THE PRACTICE OF THIS OFFICE WITH RESPECT TO THE 1940 STATUTE IS REQUIRED AT THE PRESENT TIME BECAUSE OF THE RULE APPLIED IN THE O-ROURKE CASE UNDER A DIFFERENT STATUTE.

IT IS EVIDENT FROM A READING OF THE EXCERPT QUOTED FROM PAGE 51 OF THE OPINION IN THE O-ROURKE CASE THAT THE COURT CONSIDERED THAT A "CLAIM FIRST ACCRUED" WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS THERE APPLICABLE WHEN A CAUSE OF ACTION ACCRUED--- A FAILURE OR REFUSAL TO PAY ON SOME CUSTOMARY PAY DAY AFTER THE RENDITION OF THE SERVICES BEING A CONDITION PRECEDENT TO THE ACCRUAL OF A CAUSE OF ACTION IN THE PARTICULAR CASE INVOLVED. SUCH INTERPRETATION OF THAT STATUTE OF LIMITATIONS WHICH SPECIFICALLY HAD REFERENCE TO MATTERS COGNIZABLE BY THE COURT OF CLAIMS IS UNDERSTANDABLE WHEN IT IS CONSIDERED THAT, IN A CLAIM SUCH AS YOURS FOR PAYMENT OF COMPENSATION, AN ACTUAL BREACH OF THE GOVERNMENT'S OBLIGATION MUST BE SHOWN IN ORDER TO GIVE RISE TO A SUIT OR ,CAUSE OF ACTION" BEFORE THAT TRIBUNAL.

SUCH A VIEW AS THAT JUST INDICATED IS NOT REQUIRED TO BE TAKEN BY THIS OFFICE WITH RESPECT TO APPLICATION OF THE 1940 STATUTE WHICH SPECIFICALLY IS DIRECTED TO CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE. IN ITS NORMAL AND CUSTOMARY USAGE THE WORD "CLAIM" IS USED TO INDICATE THE ASSERTION OF AN EXISTING RIGHT, AND ALSO TO INDICATE THE RIGHT ITSELF. MELLUS V. POTTER, 267 P. 563, 564. CLEARLY, EXCEPT IN THE PHRASE "SUCH CLAIM FIRST ACCRUED," THE WORD "CLAIM" IS USED IN THE 1940 STATUTE IN REFERENCE TO THE ASSERTION OF A RIGHT; HOWEVER, IN THE PHRASE MENTIONED, THE WORD "CLAIM" OBVIOUSLY REFERS TO THE RIGHT ITSELF. THERE IS FOR CONSIDERATION, THEN, THE DATE OF ACCRUAL OF THE RIGHT WHICH NOW IS ASSERTED; AND THERE SEEMS LITTLE DOUBT BUT THAT SUCH DATE WAS THE PARTICULAR SUNDAY ON WHICH THE SERVICES FOR WHICH EXTRA COMPENSATION UNDER THE 1911 ACT, AS AMENDED, IS CLAIMED WERE RENDERED, SINCE UNDER THAT ACT, AS CONSTRUED IN UNITED STATES V. MYERS, 320 U.S. 561, AND THE O-ROURKE CASE, ALL EVENTS NECESSARY TO FIX THE RIGHT TO AND THE AMOUNT OF THE EXTRA COMPENSATION, AS WELL AS THE GOVERNMENT'S LIABILITY THEREFOR, OCCURRED ON THAT DATE. FURTHERMORE, IT HAD BEEN THE LONG-EXISTING ADMINISTRATIVE PRACTICE NOT TO PAY THE EXTRA COMPENSATION NOW CLAIMED FOR THE SERVICES IN QUESTION, SO THAT YOU WERE ON NOTICE WHEN THE SERVICES WERE RENDERED THAT THE GOVERNMENT, THROUGH ITS EXECUTIVE OFFICERS, DENIED LIABILITY FOR SUCH EXTRA COMPENSATION, AND NO REASON IS APPARENT FOR SELECTING AS THE DATE OF ACCRUAL OF THE CLAIM, WITHIN THE MEANING OF THE SAID 1940 STATUTE, SOME LATER THEORETICAL PAY DAY.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT YOU WERE CORRECTLY ADVISED IN THE SETTLEMENT OF DECEMBER 19, 1949, THAT NO CONSIDERATION MAY BE GIVEN THAT PORTION OF YOUR CLAIM PRIOR TO APRIL 30, 1938, AND, ACCORDINGLY, UPON REVIEW, SAID SETTLEMENT MUST BE AND IS SUSTAINED.