B-179245-O.M., AUG 20, 1973

B-179245-O.M.: Aug 20, 1973

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PRECIS UNAVAILABLE THE COMPTROLLER GENERAL HEREWITH IS THE FILE TOGETHER WITH CORRESPONDENCE CONCERNING THE CLAIM OF THE UNITED STATES AGAINST MR. MCCOY WHICH WAS REFERRED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY AS UNCOLLECTIBLE IN THE AMOUNT OF $4. A CERTIFICATE OF INDEBTEDNESS WAS FORWARDED TO THE DEPARTMENT OF JUSTICE BY THIS OFFICE. ATTORNEY'S OFFICE HAVING JURISDICTION IN THE MATTER REQUESTING CERTAIN INFORMATION AND NOTING THAT THE FIRST CAUSE OF ACTION (FOR THE REENLISTMENT BONUSES) WAS PROBABLY TIME-BARRED. ATTORNEY'S OFFICE WAS ADVISED THAT WE ARE OF THE OPINION THAT CLAIMS FOR RECOUPMENT OF UNEARNED REENLISTMENT BONUSES UNDER 37 U.S.C. 308(E) ARE STATUTORY AND APPARENTLY ARE NOT COVERED BY 28 U.S.C. 2415 (B-158275-O.M.

B-179245-O.M., AUG 20, 1973

PRECIS UNAVAILABLE

THE COMPTROLLER GENERAL

HEREWITH IS THE FILE TOGETHER WITH CORRESPONDENCE CONCERNING THE CLAIM OF THE UNITED STATES AGAINST MR. THOMAS W. MCCOY WHICH WAS REFERRED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY AS UNCOLLECTIBLE IN THE AMOUNT OF $4,712.51 ARISING OUT OF EXCESS COSTS INCURRED IN THE SHIPMENT OF HIS MOBILE HOME AND UNEARNED PRO RATA PORTIONS OF REENLISTMENT AND VARIABLE REENLISTMENT BONUSES PAID TO HIM INCIDENT TO HIS SERVICE IN THE UNITED STATES NAVY.

ON DECEMBER 15, 1972, A CERTIFICATE OF INDEBTEDNESS WAS FORWARDED TO THE DEPARTMENT OF JUSTICE BY THIS OFFICE. SUBSEQUENTLY, WE RECEIVED A LETTER FROM THE U.S. ATTORNEY'S OFFICE HAVING JURISDICTION IN THE MATTER REQUESTING CERTAIN INFORMATION AND NOTING THAT THE FIRST CAUSE OF ACTION (FOR THE REENLISTMENT BONUSES) WAS PROBABLY TIME-BARRED. THE U.S. ATTORNEY'S OFFICE WAS ADVISED THAT WE ARE OF THE OPINION THAT CLAIMS FOR RECOUPMENT OF UNEARNED REENLISTMENT BONUSES UNDER 37 U.S.C. 308(E) ARE STATUTORY AND APPARENTLY ARE NOT COVERED BY 28 U.S.C. 2415 (B-158275-O.M., MAY 17, 1971).

THE ASSISTANT U.S. ATTORNEY FOR THE NORTHERN DISTRICT OF NEW YORK, MR. GEORGE H. LOWE, HAS REQUESTED BY LETTER DATED JULY 3, 1973, THAT HE BE ADVISED OF ANY LEGAL RESEARCH IN SUPPORT OF THIS VIEW AND FORWARDED A COPY OF ANY MEMORANDA OF LAW WHICH MIGHT HAVE BEEN PREPARED.

IN VIEW OF THE ABOVE, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION. IS NOTED THAT THE INQUIRY FROM THE DEPARTMENT OF JUSTICE DATED MAY 25, 1973, STATED THAT IT WAS EXPECTED THAT THE DEFENDANT WILL MOVE TO DISMISS RATHER PROMPTLY, SO AN EXPEDITED RESPONSE WILL BE APPRECIATED.

DIRECTOR, TCD (GENERAL CLAIMS)

RETURNED. IN THE INITIAL REVIEW OF THE PROVISIONS SETTING FORTH A TIME LIMITATION ON SUITS BY THE GOVERNMENT, 28 U.S.C. 2415-2416, IT WAS NOTED THAT ACTIONS "FOUNDED ON STATUTE" ARE NOT SPECIFICALLY MENTIONED AND THEREFORE APPARENTLY NOT COVERED BY THE TERMS OF THE LAW. PROMPT ACTION ON SUCH CLAIMS HOWEVER WAS FELT TO BE THE WISER COURSE. HENCE OUR ANSWER IN B-158275-O.M., DECEMBER 9, 1971, TO QUESTION NUMBER 9 OF THE RELATED SUBMISSION AS TO WHEN THE CAUSE OF ACTION ARISES FOR RECOUPMENT OF UNEARNED REENLISTMENT BONUS UNDER 37 U.S.C. 308(E) WAS AS FOLLOWS:

"AGAIN, IT IS OUR VIEW THAT CLAIMS FOR RECOUPMENT OF UNEARNED REENLISTMENT BONUS UNDER 37 U.S.C. 308(E), COVERED BY YOUR QUESTION 9, ARE STATUTORY AND NOT COVERED BY 28 U.S.C. 2415. HOWEVER, TO BE ON THE SAFE SIDE AND TO AVOID DRAGGING OUT SUCH CASES UNNECESSARILY, SUCH CLAIMS SHOULD BE HANDLED AND PROCESSED ON THE BASIS OF BEING CONTRACTUAL SO THAT THE SIX YEAR PERIOD APPLIES. OF COURSE, THE GOVERNMENT HAS NO CLAIM AGAINST THE MEMBER UNTIL THE PREMATURE TERMINATION OF HIS ENLISTMENT, AND THE PERIOD WOULD COMMENCE RUNNING ON THAT DATE."

THE UNITED STATES ATTORNEY IN HIS LETTER OF MAY 25, 1973, STATES THAT ALTHOUGH THE COMPLAINT WAS NOT FILED BY MAY 3, 1973, AND AS A RESULT THE FIRST CAUSE OF ACTION PROBABLY IS TIME-BARRED, HE NEVERTHELESS FILED THE COMPLAINT IN THE HOPE THAT THE PROVISO OF 28 U.S.C. 2415(D) MIGHT BE APPLICABLE.

28 U.S.C. 2415(D) READS:

"SUBJECT TO THE PROVISIONS OF SECTION 2416 OF THIS TITLE AND EXCEPT AS OTHERWISE PROVIDED BY CONGRESS, EVERY ACTION FOR THE RECOVERY OF MONEY ERRONEOUSLY PAID TO OR ON BEHALF OF ANY CIVILIAN EMPLOYEE OF ANY AGENCY OF THE UNITED STATES OR TO OR ON BEHALF OF ANY MEMBER OR DEPENDENT OF ANY MEMBER OF THE UNIFORMED SERVICES OF THE UNITED STATES, INCIDENT TO THE EMPLOYMENT OR SERVICES OF SUCH EMPLOYEE OR MEMBER, SHALL BE BARRED UNLESS THE COMPLAINT IS FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION ACCRUES: PROVIDED, THAT IN THE EVENT OF LATER PARTIAL PAYMENT OR WRITTEN ACKNOWLEDGMENT OF DEBT, THE RIGHT OF ACTION SHALL BE DEEMED TO ACCRUE AGAIN AT THE TIME OF EACH SUCH PAYMENT OR ACKNOWLEDGMENT."

BY LETTER OF JUNE 26, 1973, YOU ADVISED THAT, WHILE THE CLAIMANT HAD MADE NO PAYMENT OR ACKNOWLEDGMENT WHICH WOULD BRING THE CASE WITHIN THE PROVISO, YOU WERE OF THE OPINION THE CLAIM WAS OF A STATUTORY NATURE AND NOT BARRED. THE UNITED STATES ATTORNEY HAS NOW REQUESTED LEGAL RESEARCH IN SUPPORT OF SUCH VIEW.

37 U.S.C. 308(E), WITH RESPECT TO REENLISTMENT BONUS, READS:

"UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, OR BY THE SECRETARY OF TRANSPORTATION WITH RESPECT TO THE COAST GUARD, A MEMBER WHO VOLUNTARILY, OR BECAUSE OF HIS MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH A BONUS WAS PAID TO HIM UNDER THIS SECTION SHALL REFUND THAT PERCENTAGE OF THE BONUS THAT THE UNEXPIRED PART OF HIS ENLISTMENT IS OF THE TOTAL ENLISTMENT PERIOD FOR WHICH THE BONUS WAS PAID."

SINCE REENLISTMENT BONUSES RECOUPED UNDER 37 U.S.C. 308(E) ARE VALID WHEN PAID THERE IS NO BASIS FOR THE APPLICATION OF THE ERRONEOUS PAYMENT PROVISION OF 28 U.S.C. 2415(D) TO SUCH CASES. TO THE EXTENT THAT ANY PART OF 28 U.S.C. 2415 APPLIES TO RECOUPMENTS UNDER 37 U.S.C. 308(E), SUCH PART WOULD APPEAR TO BE LIMITED TO 28 U.S.C. 2415(A) WHICH, IN PERTINENT PART, PROVIDES:

"*** EVERY ACTION FOR MONEY DAMAGES BROUGHT BY THE UNITED STATES OR AN OFFICER OR AGENCY THEREOF WHICH IS FOUNDED UPON ANY CONTRACT EXPRESS OR IMPLIED IN LAW OR FACT, SHALL BE BARRED UNLESS THE COMPLAINT IS FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION ACCRUES OR WITHIN ONE YEAR AFTER FINAL DECISIONS HAVE BEEN RENDERED IN APPLICABLE ADMINISTRATIVE PROCEEDINGS REQUIRED BY CONTRACT OR BY LAW, WHICHEVER IS LATER ***"

37 U.S.C. 308(E) CLEARLY SETS FORTH THE REQUIREMENT FOR RECOUPMENT WHEN THE ENLISTMENT TERM IS NOT COMPLETED VOLUNTARILY OR FOR MISCONDUCT. SUCH RECOVERY DOES NOT APPEAR TO BE AN "ACTION FOR MONEY DAMAGES *** FOUNDED UPON ANY CONTRACT ***." IT THEREFORE APPEARS THAT THE RECOUPMENT IS REQUIRED DIRECTLY BY THE STATUTE AND IS A CLAIM "FOUNDED ON STATUTE."

WE ARE UNAWARE OF ANY COURT DECISION HOLDING THAT CLAIMS "FOUNDED ON STATUTE" ARE NOT COVERED BY 28 U.S.C. 2415-2416. THE GENERAL RULE, HOWEVER, IS WELL SETTLED THAT STATUTES OF LIMITATION ARE BINDING ON THE UNITED STATES ONLY WHEN CONGRESS CLEARLY EXPRESSES SUCH AN INTENTION. UNITED STATES V. SUMMERLIN, 310 U.S. 414 (1940); GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126 (1938); UNITED STATES V. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY CO., 118 U.S. 120 (1886); UNITED STATES V. THOMPSON, 93 U.S. 486 (1878); MCCLURE V. UNITED STATES,, 19 C. CLS. 18 (1883).

IN VIEW OF THE ABOVE WE BELIEVE THAT 28 U.S.C. 2415-2416 BARS ACTIONS BROUGHT BY THE GOVERNMENT WHICH ARE FOUNDED UPON CONTRACT, TORT, OR FOR RECOVERY OF MONEY ERRONEOUSLY PAID OUT, UNLESS THE COMPLAINT IS FILED WITHIN THE PERIODS SPECIFIED, AND THAT ALL OTHER CASES SUCH AS RECOUPMENTS UNDER 37 U.S.C. 308(E) AND OTHER CLAIMS "FOUNDED ON STATUTE" ARE NOT SUBJECT TO THE TIME BARS PROVIDED.

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