B-152388, MAR. 4, 1964

B-152388, MAR. 4, 1964

TO MR. VINCENT S. LUKAS, USCG, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1964, IN WHICH, AMONG OTHER THINGS, YOU PROTEST APPLICATION OF THE 10-YEAR BARRING ACT (31 U.S.C. 71A) IN OUR DECISION TO YOU OF JANUARY 29, 1964, B-152388, ON YOUR CLAIM FOR MEDICAL EXPENSES IN THE AMOUNT OF $30,000 ALLEGED TO HAVE BEEN INCURRED BY YOU ON ACCOUNT OF YOUR DEPENDENT SON DURING A 4 YEAR PERIOD COMMENCING IN 1950.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A (THE PERTINENT PROVISIONS OF WHICH WERE QUOTED IN THE DECISION OF JANUARY 29, 1964), EXPRESSLY AND SPECIFICALLY BARS THIS OFFICE FROM JURISDICTION WITH RESPECT TO ANY CLAIM, IRRESPECTIVE OF THE CIRCUMSTANCES GIVING RISE THERETO, UNLESS SUCH CLAIM HAS BEEN RECEIVED IN THIS OFFICE "WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

THE GENERAL RULE OF CONSTRUCTION OF A STATUTE OF LIMITATION IS THAT THE STATUS BEGINS TO RUN FROM THE TIME THE RIGHT OF ACTION WHICH IT COVERS ACCRUES. THE WORD "CLAIM" IS USED IN THE 1940 STATUTE IN REFERENCE TO THE ASSERTION OF A RIGHT AND IN THE PHRASE "SUCH CLAIM FIRST ACCRUED" THE WORD "CLAIM" OBVIOUSLY REFERS TO THE RIGHT ITSELF. THERE IS FOR CONSIDERATION, THEN, THE DATE OF ACCRUAL OF YOUR RIGHT, IF ANY, TO REIMBURSEMENT OF THE MEDICAL EXPENSES YOU ASSERT WERE INCURRED BY YOU DURING THE PERIOD 1950 TO 1954. A CLAIM OF THAT NATURE ACCRUES ON A DAY-TO-DAY BASIS CONCURRENTLY WITH THE ACTUAL DATE THE MEDICAL SERVICES WERE RENDERED AND THE FINANCIAL OBLIGATION THEREOF LEGALLY RESTED ON YOU. THE 10-YEAR BAR OF THE 1940 ACT BEGAN TO RUN SIMILARLY, ON A DAY-TO-DAY BASIS, FROM EACH DATE ON WHICH THE MEDICAL SERVICES WERE RENDERED. ANY OTHER CONSTRUCTION OF THE LAW WOULD PERMIT THE RENEWAL OF A CLAIM LONG BARRED BY THE 1940 ACT BY THE SIMPLE EXPEDIENT OF INCURRING ONE MORE ITEM OF EXPENSE AFTER THE 10-YEAR PERIOD PRESCRIBED IN THE LAW HAD EXPIRED. SUCH A RESULT COULD NOT HAVE BEEN CONTEMPLATED BY CONGRESS IN ENACTING THE BARRING ACT OF 1940 AND THE MEDICAL EXPENSES WHICH YOU MAY HAVE INCURRED WITHIN THE 10-YEAR PERIOD OF LIMITATION (ON OR AFTER JANUARY 3, 1954) DID NOT EXTEND THE TIME FOR FILING YOUR CLAIM OR SERVE TO TOLL THE BARRING ACT AS TO THE MEDICAL EXPENSES WHICH WERE INCURRED BY YOU PRIOR TO JANUARY 3, 1954. ACCORDINGLY, WE AFFIRM WHAT WAS STATED IN THE DECISION OF JANUARY 29, 1964, THAT NO CONSIDERATION MAY BE GIVEN BY THIS OFFICE TO ANY PART OF YOUR CLAIM FOR MEDICAL EXPENSES WHICH YOU MAY HAVE INCURRED ON ACCOUNT OF YOUR DEPENDENT CHILD PRIOR TO JANUARY 3, 1954.

THE PROVISIONS OF THE 10-YEAR BARRING ACT OF 1940 ARE CLEAR AND LEAVE NO DOUBT AS TO WHAT CONGRESS INTENDED TO BE THE LAW GOVERNING SUCH MATTERS. WHEN CONGRESS HAS DESIRED TO PROVIDE AN EXEMPTION FROM THE SOUND ADMINISTRATIVE AND LEGAL PRINCIPLES EMBODIED IN STATUTES OF LIMITATION, SUCH AS THE ACT OF OCTOBER 9, 1940, IT HAS EXPRESSLY SO PROVIDED. SEE SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, CH. 888, 54 STAT. 1181, AS AMENDED, 50 U.S.C. APP. 525. THERE IS NO PROVISION OF LAW WHICH EXEMPTS YOUR CLAIM FOR REIMBURSEMENT OF MEDICAL EXPENSES ALLEGED TO HAVE BEEN INCURRED BY YOU PRIOR TO JANUARY 3, 1954, FROM THE PROHIBITION CONTAINED IN THE ACT OF OCTOBER 9, 1940. SINCE NEITHER THE 1940 ACT NOR ANY OTHER STATUTORY PROVISION GRANTS THIS OFFICE ANY DISCRETIONARY AUTHORITY IN THE MATTER, THE BARRING ACT OF 1940 MUST BE APPLIED IN YOUR CASE IN EXACTLY THE SAME MANNER THAT SUCH ACT IS APPLIED REGULARLY IN ALL OTHER INSTANCES WHERE THE CLAIMANTS, LIKE YOURSELF, HAVE FAILED, INADVERTENTLY OR OTHERWISE, TO PRESENT THEIR CLAIMS TO THIS OFFICE WITHIN THE 10-YEAR PERIOD PRESCRIBED BY LAW.

THE OTHER MATTERS MENTIONED IN YOUR LETTER WOULD SEEM TO INDICATE THAT YOU HAVE MISAPPREHENDED THE JURISDICTION WHICH THE CONGRESS HAS VESTED IN THIS OFFICE WITH RESPECT TO THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES. SECTION 236, REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT IS CONCERNED, EITHER AS A DEBTOR OR A CREDITOR, SHALL BE SETTLED IN THE GENERAL ACCOUNTING OFFICE. THE GENERAL ACCOUNTING OFFICE DISCHARGES ITS RESPONSIBILITY UNDER 31 U.S.C. 71, TO SETTLE AND ADJUST CLAIMS AND ACCOUNTS BY AND AGAINST THE UNITED STATES, THROUGH (1) THE AUDIT OF TRANSACTIONS AFTER PAYMENT, (2) THE SETTLEMENT OF ACCOUNTS OF ACCOUNTABLE OFFICERS, (3) THE EXAMINATION OF ADMINISTRATIVE FISCAL RECORDS, (4) THE ADJUDICATION OF CLAIMS AGAINST THE UNITED STATES BEFORE PAYMENT IS AUTHORIZED OR DENIED, (5) THE ADJUDICATION OF CLAIMS BY THE UNITED STATES WHEN DOUBT EXISTS AS TO THE VALIDITY OF THE GOVERNMENT'S CLAIM, AND (6) DIRECT ACTION TO COLLECT OR OTHERWISE SETTLE CLAIMS BY THE UNITED STATES WHICH ARE UNCOLLECTIBLE THROUGH ADMINISTRATIVE AGENCY EFFORTS. THE RIGHTS OF BOTH THE CLAIMANT AND THE UNITED STATES ARE GIVEN IMPARTIAL CONSIDERATION AND THE CLAIMANT IS ALLOWED THE AMOUNT OF HIS CLAIM TO WHICH HE IS FOUND LEGALLY ENTITLED WITHOUT THE EXPENSE INVOLVED IN LITIGATION. UNDER 31 U.S.C. 74, SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. A CLAIMANT, HOWEVER, MAY REQUEST A REVIEW OR RECONSIDERATION OF AN ADVERSE SETTLEMENT AND HE HAS FURTHER RECOURSE TO THE CONGRESS OR TO THE COURTS. (SECTION 3040, TITLE 1, GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL.)

SECTION 2040.10, TITLE 4, GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL, PROVIDES AS FOLLOWS:

"CLAIMS ARE SETTLED ON THE BASIS OF THE FACTS AS ESTABLISHED BY THE GOVERNMENT AGENCY CONCERNED AND BY EVIDENCE SUBMITTED BY THE CLAIMANT. SETTLEMENTS ARE FOUNDED ON A DETERMINATION OF THE LEGAL LIABILITY OF THE UNITED STATES UNDER THE FACTUAL SITUATION INVOLVED AS ESTABLISHED BY THE WRITTEN RECORD. THE BURDEN IS ON CLAIMANTS TO ESTABLISH THE LIABILITY OF THE UNITED STATES, AND THE CLAIMANTS' RIGHT TO PAYMENT. THE SETTLEMENT OF CLAIMS IS BASED UPON THE WRITTEN RECORD ONLY.'

THUS, WITH RESPECT TO THE MATTER OF A PERSONAL INTERVIEW MENTIONED BY YOU, IT WILL BE SEEN THAT AN ORAL DISCUSSION CAN HAVE NO ACTUAL BEARING ON THE OUTCOME OF ANY CLAIM AGAINST THE GOVERNMENT UNLESS AND UNTIL THE CLAIMANT HAS PRESENTED HIS CLAIM IN WRITING (31 U.S.C. 71A) AND HIS ARGUMENTS AND CONTENTIONS IN SUPPORT OF SUCH CLAIM ARE LIKEWISE REDUCED TO WRITING. YOUR LETTER OF JANUARY 2, 1964, DOES NOT DISCLOSE ANY FACTS OR CITE ANY STATUTORY PROVISION AUTHORIZING PAYMENT OF THAT PART OF YOUR CLAIM WHICH IS NOT BARRED BY THE PROVISIONS OF THE 10 YEAR BARRING ACT. CONSEQUENTLY, IN OUR DECISION TO YOU OF JANUARY 29, 1964, THERE WERE QUOTED IN DETAIL THE PERTINENT APPLICABLE PROVISIONS OF LAW AND PRESIDENTIAL REGULATIONS IN EFFECT DURING THE PERIOD COVERED BY YOUR CLAIM GOVERNING THE MEDICAL TREATMENT AND HOSPITALIZATION OF DEPENDENTS OF FAMILIES OF RETIRED COAST GUARD PERSONNEL. YOU DO NOT INDICATE IN YOUR LETTER OF FEBRUARY 13, 1964, WHICH PROVISION OF LAW OR REGULATION QUOTED IN THE DECISION OF JANUARY 29, 1964, THAT YOU CONSIDER AS HAVING BEEN DISREGARDED OR VIOLATED IN CONNECTION WITH YOUR CLAIM, NOR DO YOU CITE ANY OTHER LAW WHICH WOULD AUTHORIZE PAYMENT OF YOUR CLAIM THERE DENIED.

YOU WERE ALSO ADVISED IN THE DECISION OF JANUARY 29, 1964, THAT WE WERE REQUESTING A REPORT FROM THE COMMANDANT, UNITED STATES COAST GUARD, CONCERNING THE ALLEGATIONS MADE BY YOU IN THE LETTER OF JANUARY 2, 1964. THE COMMANDANT, IN A LETTER DATED FEBRUARY 6, 1964, HAS ACKNOWLEDGED RECEIPT OF OUR REQUEST, ADDING:

"COMPLETE INFORMATION IS NOT AVAILABLE AT THIS HEADQUARTERS TO FURNISH YOU A REPLY AT THIS TIME. AS SOON AS THE REQUIRED INFORMATION HAS BEEN OBTAINED, I WILL ADVISE YOU FURTHER.'

WHEN SUCH INFORMATION IS RECEIVED HERE IT WILL BE GIVEN PROMPT CONSIDERATION AND, AS STATED IN DECISION OF JANUARY 29, 1964, IF SUCH REPORT DISCLOSES ANY EVIDENCE OR FACTS WHICH ESTABLISH YOUR RIGHT TO THE BENEFITS CLAIMED, WE WILL ADVISE YOU PROMPTLY.