B-146147, JUL. 25, 1961

B-146147, JUL. 25, 1961

TO MR. CLAYTON MCDONNELL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1961, CONCERNING YOUR CLAIM FOR LOSSES ALLEGED TO HAVE BEEN SUSTAINED AS A RESULT OF THE ALLEGED UNLAWFUL TERMINATION OF LEASE NO. W-20-064-ENG 1934, ENTERED INTO ON JANUARY 2, 1947, BETWEEN THE UNITED STATES ACTING BY AND THROUGH THE WAR ASSETS ADMINISTRATION AND HERBERT L. MCDONNELL FOR A PORTION OF THE GRAYLING ARMY AIRFIELD.

THE SUPPORTING PAPERS ATTACHED TO YOUR CLAIM INDICATE THAT IN 1946 THE AIRFIELD WAS REPORTED TO THE WAR ASSETS ADMINISTRATION AS SURPLUS; THAT THE INVOLVED LEASE WAS ON A MONTH TO MONTH BASIS UNTIL TERMINATED BY TIMELY WRITTEN NOTICE; THAT BY LETTER DATED JUNE 21, 1955, THE DISTRICT ENGINEER, UNITED STATES ARMY CORPS OF ENGINEERS, NOTIFIED YOU THAT THE LEASE WOULD BE TERMINATED, EFFECTIVE AUGUST 1, 1955; AND THAT AT YOUR REQUEST YOU WERE ALLOWED UNTIL AUGUST 31, 1955, TO REMOVE YOUR BUILDINGS.

IT IS YOUR CONTENTION THAT THE CORPS OF ENGINEERS WAS MERELY THE HOLDING AGENCY; THAT THE LEASE COULD ONLY BE TERMINATED BY WAR ASSETS ADMINISTRATION OR ITS SUCCESSOR, GENERAL SERVICES ADMINISTRATION; AND THAT SINCE THE LEASE CONTAINED NO PROVISION AUTHORIZING THE DISTRICT ENGINEER TO TERMINATE THE LEASE IT WAS UNLAWFULLY TERMINATED AND THE LESSEE'S RIGHTS INTERFERED WITH WRONGFULLY.

IN THE FIRST PARAGRAPH OF YOUR LETTER YOU MADE INQUIRY CONCERNING THE TAKING OF TESTIMONY AND THE SUBMISSION OF DOCUMENTS AND EVIDENCE STATED BY YOU AS BEING AUTHORIZED UNDER TITLE 30 U.S.C., NO SECTION BEING INDICATED. YOU ARE INFORMED THAT MATTERS PENDING BEFORE OUR OFFICE ARE CONSIDERED ONLY ON THE BASIS OF THE WRITTEN RECORD AND THAT WE HAVE NO FACILITIES FOR TAKING OF TESTIMONY AND CONDUCTING HEARINGS SUCH AS INDICATED IN YOUR LETTER.

AS TO THE MATTER OF THE AUTHORITY OF THE DISTRICT ENGINEER TO TERMINATE THE LEASE, AN EXAMINATION OF THE LEASE SHOWS THAT IT WAS ENTERED INTO AS OF JANUARY 2, 1947,"BETWEEN THE UNITED STATES OF AMERICA ACTING BY AND THROUGH WAR ASSETS ADMINISTRATION, UNDER AND PURSUANT TO EXECUTIVE ORDER 9689 DATED JANUARY 31, 1946, AND THE POWERS AND AUTHORITY OF THE SURPLUS PROPERTY ACT OF 1944 (58 STAT. 765) AND S.P.A. REGULATION NO. 1, (11 F.R. 408), AS AMENDED (HEREINAFTER REFERRED TO AS "LESSOR"), AND HERBERT L. MCDONNELL, BOX 336, GRAYLING, MICHIGAN (HEREINAFTER REFERRED TO AS "LESSEE").'

UNDER S.P.A. REGULATION NO. 1, EFFECTIVE JANUARY 15, 1946, WAR ASSETS CORPORATION WAS DESIGNATED AS THE DISPOSAL AGENCY FOR ALL TYPES OF PROPERTY FOR WHICH THE RECONSTRUCTION FINANCE FORMERLY ACTED AS DISPOSAL AGENCY. WAR ASSETS CORPORATION WAS SUCCEEDED BY THE WAR ASSETS ADMINISTRATION AND SECTION 8301.15 OF THE LATTER ADMINISTRATION'S REGULATION NO. 1 OF JULY 1946, ENTITLED "DESIGNATION OF DISPOSAL AGENCIES AND PROCEDURES FOR REPORTING SURPLUS PROPERTY LOCATED WITHIN THE CONTINENTAL UNITED STATES, ITS TERRITORIES AND POSSESSIONS," AS AMENDED, WAS FURTHER AMENDED EFFECTIVE NOVEMBER 30, 1946, BY SECTION 8301.15 (B) WHICH PROVIDED FOR REQUESTS BY THE OWNING AGENCY FOR WITHDRAWAL OF A DECLARATION OF SURPLUS TO BE SUBMITTED TO THE ADMINISTRATOR WITH COMPLETE JUSTIFICATION FOR THE REQUESTED WITHDRAWAL AND FURTHER PROVIDED THAT THE ADMINISTRATOR, AFTER CONSIDERATION OF SUCH REQUESTS, AND ANY ADDITIONAL EVIDENCE WHICH HE DEEMED APPROPRIATE, WOULD NOTIFY OWNING AGENCY AND THE APPROPRIATE DISPOSAL AGENCY, IF THE DECLARATION HAD BEEN TRANSMITTED THERETO, OF HIS DECISION. SECTION 8301.15 AS AMENDED BY SECTION 8301.15 (B), WHICH WAS IN EFFECT ON THE DATE LEASE NO. W-20-064-ENG 1934 WAS EXECUTED, WAS PUBLISHED ON PAGES 13969 AND 13970 OF THE FEDERAL REGISTER FOR NOVEMBER 30, 1946, AND, THEREFORE, SUCH PUBLICATION CONSTITUTED LEGAL NOTICE OF THE CONTENTS THEREOF. FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380, 384-385.

WE ARE ADVISED INFORMALLY BY THE GENERAL SERVICES ADMINISTRATION THAT ON MAY 22, 1948, APPLICATION UNDER SECTION 8301.15 (B) WAS FILED BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY (FORMERLY WAR DEPARTMENT) FOR THE WITHDRAWAL OF THE PREMISES COVERED BY LEASE NO. W 20-064-ENG 1934, AND THAT ON AUGUST 5, 1947, SUCH APPLICATION WAS APPROVED BY THE ADMINISTRATOR OF WAR ASSETS ADMINISTRATION. IN THE CIRCUMSTANCES, SINCE IT APPEARS THAT THE WITHDRAWAL FROM SURPLUS WAS APPROVED BY THE ADMINISTRATION OF WAR ASSETS ADMINISTRATION, FULL CONTROL OF THE PROPERTY WAS THEREAFTER VESTED IN THE DEPARTMENT OF THE ARMY, IT WAS NO LONGER SURPLUS PROPERTY, AND THE CANCELLATION OF THE LEASE BY THE DISTRICT ENGINEER WAS CLEARLY AUTHORIZED AND THEREFORE, THERE IS NO PROPER BASIS FOR QUESTIONING THE PROPRIETY OF SUCH CANCELLATION. SINCE THE RECORD INDICATES THAT THE CANCELLATION NOTICE WAS TIMELY GIVEN WE FIND NO LEGAL BASIS FOR YOUR CLAIM FOR DAMAGES. NEITHER DO WE FIND THAT YOUR CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT REPORTING THE MATTER FOR THE CONSIDERATION OF THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

WITH RESPECT TO THE STATEMENT ON PAGE 2 OF YOUR LETTER CONCERNING THE IMMUNITY OF THE GOVERNMENT FROM SUIT, YOUR ATTENTION IS INVITED TO SECTIONS 1346 AND 1491 OF TITLE 28 U.S.C. UNDER WHICH SUITS MAY BE INSTITUTED AGAINST THE UNITED STATES UNDER THE CIRCUMSTANCES THEREIN SET FORTH. WE SHOULD POINT OUT, HOWEVER, THAT UNDER THE PROVISIONS OF SECTION 2501 OF TITLE 28 ACTIONS IN THE COURT OF CLAIMS ARE REQUIRED TO BE FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION FIRST ACCRUES.