B-145517, JUN. 15, 1961

B-145517, JUN. 15, 1961

TO MR. FRANK S. FARRELL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1961, REQUESTING A CLARIFICATION OF OUR LETTER OF MAY 12, 1961, B-145517, PERTAINING TO YOUR BILLS F-63069-B-12/56 AND F-63068-B-12/56 FOR $17,656.89 AND $45,840.16, RESPECTIVELY, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE ON SEVERAL SHIPMENTS DESCRIBED ON THE BILLS OF LADING AS "INFLAMMABLE SOLIDS (BOMB INCENDIARY, PT1, 500 LB., LESS FUSING COMPONENTS, AN-M76).' WITH OUR LETTER OF MAY 12, 1961, YOU WERE FURNISHED FORM LETTERS (T-109) FOR EACH OF YOUR CLAIMS AND YOU WERE ADVISED THAT YOUR CLAIMS HAD BEEN REOPENED AND THAT WHEN THE ISSUE AS TO THE PROPERLY APPLICABLE RATES HAS BEEN FINALLY JUDICIALLY DETERMINED YOUR CLAIMS WILL BE SETTLED ON THE BASIS OF SUCH FINAL DECREE. THE ISSUE INVOLVED IS NOW THE SUBJECT OF A PETITION FOR REVIEW OF THE FINDINGS OF THE INTERSTATE COMMERCE COMMISSION IN UNITED STATES V. WESTERN PACIFIC RAILROAD COMPANY, 309 I.C.C. 249, AND IS PENDING IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION NO. CA-3154-60.

YOU STATE BOTH OF YOUR INVOLVED CLAIMS AROSE IN JANUARY 1956 AND UNLESS SOONER FILED, SUIT THEREON WOULD BE BARRED BY THE SIX-YEAR STATUTE OF LIMITATIONS (28 U.S.C.A. 2401) IN JANUARY 1962. YOU INDICATE THAT A FINAL JUDICIAL DETERMINATION IN THE WESTERN PACIFIC CASE MAY NOT BE REACHED BY THAT DATE AND REQUEST ADVICE WHETHER IT WILL BE NECESSARY THAT SUIT BE FILED IN OR BEFORE JANUARY 1962 TO PROTECT YOUR CLAIMS OR WHETHER YOU MAY RELY UPON THE CLAIM IN LITIGATION WITH THE UNDERSTANDING THAT IN THE EVENT THE COURT SHOULD FINALLY DETERMINE, EVEN THOUGH SUCH DETERMINATION IS NOT REACHED UNTIL AFTER JANUARY 1962, THAT THE BASES OF RATES SOUGHT BY YOU ARE DUE, YOUR CLAIMS WILL BE PAID WITHIN THE 10 YEAR PERIOD SET OUT IN 31 U.S.C.A. 71A AND 237. YOU INDICATE THAT IT WOULD APPEAR SINCE WE HAVE REOPENED YOUR CLAIMS PENDING A DETERMINATION OF THE LITIGATION, YOUR CLAIMS COULD BE PAID WITHIN 10 YEARS SUBSEQUENT TO THE TIME AT WHICH THEY AROSE AND THAT YOU DO NOT SEE ANY NEED FOR YOU TO FILE FURTHER COMPLAINT.

31 U.S.C.A. 71A AND 237 PROVIDE IN MATERIAL PART:

"EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE OF SUCH CLAIM FIRST ACCRUED * * *.'

28 U.S.C. 2401 PROVIDES:

"EVERY CIVIL ACTION COMMENCED AGAINST THE UNITED STATES SHALL BE BARRED UNLESS THE COMPLAINT IS FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION FIRST ACCRUES.'

BY THE ISSUANCE OF THE FORMS T-109 WE ACKNOWLEDGED THE CLAIMS--- WHICH YOU REPORT AROSE IN 1956--- WERE FILED IN THE GENERAL ACCOUNTING OFFICE AND SUSPENDED SETTLEMENT ACTION THEREON PENDING FINAL JUDICIAL DETERMINATION IN THE WESTERN PACIFIC CASE OF THE ISSUE INVOLVED. THUS, THE CLAIMS WHICH YOU STATE AROSE IN 1956 WERE ACKNOWLEDGED TO BE ON FILE HERE IN 1961 WELL WITHIN THE 10 YEAR PERIOD FOR FILING CLAIMS WITH OUR OFFICE. UPON JUDICIAL DETERMINATION OF THE WESTERN PACIFIC CASE, SETTLEMENT OF SUCH CLAIMS WILL BE MADE BY US BASED THEREON REGARDLESS OF THE DATE WHEN SUCH JUDICIAL DETERMINATION IS MADE. THE CLAIMS, HAVING BEEN FILED HERE WITHIN OUR 10 YEAR LIMITATION PERIOD, WILL BE FOR SETTLEMENT WITHOUT REGARD TO THE SUBSEQUENT PASSAGE OF TIME, THE LIMITATION IN 31 U.S.C. 71A AND 237 BEING APPLICABLE TO THE TIME FOR FILING CLAIMS IN THE GENERAL ACCOUNTING OFFICE AND NOT TO THE TIME WHEN WE MAY SETTLE CLAIMS TIMELY FILED HERE.

28 U.S.C. 2401--- AS WELL AS 28 U.S.C. 2501--- APPLIES TO CIVIL ACTIONS IN THE COURTS AND GENERALLY DENIES JURISDICTION TO THE COURTS TO ADJUDICATE MATTERS AS TO WHICH AN ACTION (SUIT) WAS NOT COMMENCED WITHIN SIX YEARS OF THE TIME THE CAUSE OF ACTION ACCRUES. IT HAS BEEN HELD THAT A RIGHT OF ACTION ACCRUES AT THE TIME TRANSPORTATION SERVICES FOR WHICH PAYMENT IS SOUGHT ARE RENDERED, THAT IS, THE DATE OF DELIVERY OF THE SHIPMENT TO THE CONSIGNEE. HOWEVER WHEN UPON POST AUDIT A DETERMINATION IS REACHED THAT AN OVERPAYMENT WAS MADE AND THE OVERPAYMENT IS COLLECTED BY REFUND OR DEDUCTION UNDER 49 U.S.C 66, A NEW RIGHT, TO THE EXTENT OF THE AMOUNT COLLECTED, THEN ACCRUES. SEE 39 COMP. GEN. 448 AND COURT CASES THEREIN REFERRED TO. BUT IT HAS BEEN HELD THAT THE PERIOD OF LIMITATION FOR FILING SUIT IS NOT EXTENDED OR TOLLED BY THE TIME DURING WHICH AN OFFICE OF THE GOVERNMENT MAY PREVIOUSLY HAVE HAD SUCH CLAIM UNDER CONSIDERATION OR INVESTIGATION WITH A VIEW TO ALLOWANCE OR DISALLOWANCE. UNITED STATES V. UTZ, 80 F. 848; KENNEDY V. UNITED STATES, 79 F. 893, AFFIRMED 95 F. 127.

ACCORDINGLY, YOU ARE ADVISED THAT WE WILL MAKE SETTLEMENT UNDER 31 U.S.C. 71 OF YOUR CLAIMS PROPERLY FILED HERE WITHIN THE PERIOD OF OUR 10 YEAR STATUTE OF LIMITATION IN ACCORDANCE WITH THE FINAL JUDICIAL DECISION IN THE WESTERN PACIFIC CASE REGARDLESS OF THE DATE WHEN SUCH FINAL JUDICIAL DECISION IS RENDERED AND NO PROTECTIVE SUIT NEED TO BE FILED TO ASSURE SUCH SETTLEMENT. IF YOU ARE NOT WILLING TO ABIDE BY THE FINAL JUDICIAL DECISION IN THE WESTERN PACIFIC CASE, AND WISH TO PRESERVE YOUR RIGHT TO HAVE YOUR CLAIMS PASSED UPON BY A COURT, IT APPEARS THAT A COURT WOULD NOT HAVE JURISDICTION OF SUCH A SUIT UNLESS THE COURT ACTION IS COMMENCED WITHIN SIX YEARS OF THE ACCRUAL OF THE RIGHT OF ACTION. HOWEVER, SINCE THE ISSUE INVOLVED WILL HAVE BEEN THOROUGHLY CONSIDERED AND EXHAUSTIVELY ARGUED UPON RENDITION OF THE FINAL JUDICIAL DECISION AFTER ALL APPEAL RIGHTS ARE EXHAUSTED AND THE LIKELIHOOD OF SECURING A DIFFERENT CONCLUSION THAN THAT REACHED BY THE COURT ON THE BASIC ISSUED WOULD BE REMOTE, WE AGREE WITH YOU THAT THE FILING OF ANOTHER SUIT BY YOU IS NOT NECESSARY AND WOULD NOT SERVE ANY USEFUL PURPOSE.