B-175278, FEB 6, 1974

B-175278, FEB 6, 1974

ON APPEAL FOR RECONSIDERATION OF CLAIM BARRED BY ACT OF OCTOBER 9, 1940, 54 STAT. 1061, ON GROUND THAT CLAIM ACCRUES WHEN LEGAL RIGHT BECOMES KNOWN, ATTORNEY ADVISED THAT ADMINISTRATIVE REFUSAL OF GOVERNMENT TO PAY CLAIM DOES NOT AFFECT RUNNING OF STATUTE OF LIMITATIONS IN CLAIMS LATER DETERMINED TO BE PAYABLE BY GOVERNMENT. SEE CASES CITED.

TO JOHN CHEVALIER, JR.:

WE REFER TO YOUR LETTER OF AUGUST 29, 1973, REGARDING THE CLAIM OF MR. THOMAS R. HUFF FOR OVERTIME PAY WHILE SERVING AS A DUTY OFFICER FOR THE FEDERAL CIVIL DEFENSE ADMINISTRATION FROM APPROXIMATELY APRIL 1, 1953, THROUGH JUNE 5, 1960.

OUR RECORDS INDICATE THAT MR. HUFF FILED HIS CLAIM WITH THE OFFICE OF EMERGENCY PREPAREDNESS ON FEBRUARY 10, 1970, WHICH WAS FOLLOWED UP BY A SUPPLEMENTAL CLAIM ON JUNE 22, 1970.

THE CLAIM WAS TRANSMITTED TO THIS OFFICE ON JANUARY 25, 1972, AND WAS RECEIVED AT THE GENERAL ACCOUNTING OFFICE ON JANUARY 26, 1972.

ON FEBRUARY 9, 1972, MR. HUFF'S CLAIM WAS RETURNED TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND, AS PROVIDED THEREIN, HE WAS INFORMED THAT HIS CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS.

ON APRIL 20, 1972, MR. HUFF ASKED FOR A RECONSIDERATION OF HIS CLAIM BY THIS OFFICE SPECIFICALLY REQUESTING THAT WE SUBMIT THE CLAIM FOR CONGRESSIONAL ACTION PURSUANT TO THE MERITORIOUS CLAIMS ACT OF 1928, THE ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236. BY DECISION B-175278, MAY 24, 1972, COPY ENCLOSED, MR. HUFF WAS INFORMED THAT WE COULD FIND NO JUSTIFICATION FOR REPORTING HIS CLAIM TO THE CONGRESS.

ON ADVICE OF COUNSEL MR. HUFF REQUESTED FURTHER RECONSIDERATION OF HIS CLAIM ON SEPTEMBER 13, 1972, ON THE GROUND THAT HIS CLAIM COULD NOT HAVE "ACCRUED" EARLIER THAN THE ESTABLISHMENT OF HIS LEGAL RIGHTS. IN OUR REPLY OF DECEMBER 13, 1972, TO WHICH YOU REFER, WE POINTED OUT THAT THIS OFFICE HAS ADHERED FOR A LONG TIME TO THE RULE ENUNCIATED IN 29 COMP. GEN. 517 (1950) THAT THE DATE OF ACCRUAL OF A CLAIM FOR THE PURPOSE OF THE ACT OF OCTOBER 9, 1940, IS THE DAY THE SERVICES WERE RENDERED AND THAT THE CLAIM ACCRUED UPON A DAILY BASIS.

IN YOUR LETTER OF AUGUST 29, 1973, YOU TAKE EXCEPTION TO OUR RULING ON THE ACCRUAL OF A CLAIM, ENLARGE THE CLAIM TO $2,151.36 FOR OVERTIME WORK AND ADD $52,164 FOR 12,075 HOURS OF STANDBY DUTY. YOU ALSO ASK FOR SUBMISSION OF THE CLAIM TO THE CONGRESS UNDER 31 U.S.C. 236.

YOU ARGUE THAT IN THIS CASE THE CLAIM ACCRUED ONLY AFTER MR. HUFF BECAME AWARE OF HIS RIGHTS BY THE DETERMINATION OF THE COURTS IN CASES INVOLVING OVERTIME PAY AND SUGGEST THAT THE PROPER TIME IN THIS CASE TO BRING A CAUSE OF ACTION WAS AFTER THE RETIREMENT OF THE EMPLOYEE BECAUSE OF POSSIBLE REPRISALS BY THE ADMINISTRATIVE AGENCY.

IT HAS BEEN HELD THAT A CAUSE OF ACTION ACCRUES ON THE DATE WHEN ALL EVENTS HAVE OCCURRED WHICH FIX THE LIABILITY OF THE UNITED STATES TO A CLAIMANT. SEE LEVINE V. UNITED STATES, 133 C. CLS. 774 (1956); SESE V. UNITED STATES, 125 C. CLS. 526 (1953); RELIANCE MOTORS INC. V. UNITED STATES, 112 C. CLS. 324 (1948). MORE SPECIFICALLY, IN THE CASE OF RAPP V. UNITED STATES, 167 C. CLS. 852, 340 F.2D. 635 (1964), UNDER WHICH THE RIGHT OF EMPLOYEES SUCH AS MR. HUFF TO OVERTIME COMPENSATION FOR DUTY OFFICER SERVICE PERFORMED IN THE OFFICES OF THE FEDERAL CIVIL DEFENSE ADMINISTRATION WAS ESTABLISHED, THE COURT OF CLAIMS APPLIED THE 6-YEAR STATUTE OF LIMITATIONS APPLICABLE TO SUITS BROUGHT BEFORE THAT COURT TO THE CLAIM OF THE PLAINTIFF INVOLVED. SEE 167 C. CLS. AT 885. THE STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS BROUGHT BEFORE THIS OFFICE LIKE THE STATUTES OF LIMITATIONS APPLICABLE TO ACTION BROUGHT IN THE VARIOUS COURTS MUST BE APPLIED ON THE BASIS OF THE DATE ACTION THEREON COULD HAVE BEEN BROUGHT REGARDLESS OF THE FACT THAT THE GOVERNMENT AT SUCH TIME DID NOT ADMIT LIABILITY. SEE BALL V. UNITED STATES, 133 C. CLS. 841 (1956) AND CASES CITED THEREIN.

SINCE THE FILING OF A CLAIM WITH THIS OFFICE NEED NOT BE PREDICATED UPON A DETERMINATION OF THE GOVERNMENT'S LIABILITY IN AN APPROPRIATE COURT, MR. HUFF COULD HAVE SUBMITTED HIS CLAIM AT ANY TIME AFTER THE OVERTIME WORK IN QUESTION WAS PERFORMED. THUS, THE 10-YEAR STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS FILED IN THIS OFFICE BEGAN TO RUN WHEN THE OVERTIME WORK WAS PERFORMED.

ACCORDINGLY, WE FIND NOTHING IN THE ARGUMENTS WHICH YOU PRESENT WHICH WOULD PERMIT US TO ALTER THE CONCLUSIONS REACHED IN THE DECISIONS OF MAY 24, 1972, AND DECEMBER 13, 1972, TO MR. HUFF, THAT HIS CLAIM IS BARRED AND NO CONSIDERATION OF THE SUBSTANTIVE ARGUMENTS YOU PRESENT WITH RESPECT TO THE STANDBY DUTY MR. HUFF PERFORMED AT HOME WOULD BE APPROPRIATE. FURTHER, WE DO NOT FIND THAT THE CIRCUMSTANCES IN MR. HUFF'S CASE WARRANT SUBMISSION OF HIS CLAIM TO THE CONGRESS UNDER THE AUTHORITY OF 31 U.S.C. 236.

THEREFORE, OUR OFFICE IS WITHOUT AUTHORITY TO TAKE ANY FURTHER ACTION IN THE MATTER. WE REGRET THE DELAY IN PROVIDING A RESPONSE TO YOUR LETTER.