B-121302, JUL. 8, 1955

B-121302, JUL. 8, 1955

TO BREED, ABBOTT AND MORGAN, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1955, REQUESTING FURTHER RECONSIDERATION OF THE ACTION OF THIS OFFICE IN DECLINING TO CONSIDER AND REPORT TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 31 U.S.C. 236, THE CLAIM OF YOUR CLIENTS, LUIS P. PELLICER AND HELEN B. SCHON, PARTNERS TRADING AS JUAN P. PELLICER Y CIA.

THE CLAIM WAS FIRST PRESENTED TO THIS OFFICE BY YOUR LETTER OF JUNE 22, 1954, REQUESTING RECONSIDERATION OF THE ADMINISTRATIVE ACTION TAKEN, PARTICULARLY ON THE BASIS OF THE ACT OF APRIL 10, 1928. IN OUR DECISION OF OCTOBER 6, 1954, TO YOU, THE REQUEST FOR CONSIDERATION WAS DENIED FOR THE REASONS STATED THEREIN. IN REPLY TO YOUR REQUEST FOR REVIEW OF THAT DECISION THE CONCLUSIONS STATED THEREIN WERE ADHERED TO IN A DECISION OF NOVEMBER 24, 1954, AND IN RESPONSE TO YOUR FURTHER REQUEST THE DECISION WAS REAFFIRMED BY DECISION DATED MAY 13, 1955. THE PERTINENT FACTS ARE SET OUT RATHER FULLY IN THE REFERRED-TO DECISIONS AND WILL NOT BE REPEATED HERE. IN YOUR MOST RECENT LETTER YOU CONTEND, IN SUBSTANCE, THAT THE CLAIM IS PROPERLY FOR CONSIDERATION BY THIS OFFICE UNDER THE SAID ACT OF APRIL 10, 1928, SINCE THERE IS NO LAW OR APPROPRIATION AVAILABLE TO THE DEPARTMENT OF THE ARMY FOR THE CONSIDERATION OR PAYMENT OF THE CLAIM; ALSO, THAT ACTION BY THIS OFFICE IN THE MATTER SHOULD NOT BE REFUSED OR HELD IN ABEYANCE BECAUSE SUIT HAS BEEN FILED IN THE COURT OF CLAIMS ON THE SAME CLAIM.

THE CLAIM WAS ORIGINALLY FILED BY THE CLAIMANTS WITH LETTER DATED OCTOBER 16, 1950, ADDRESSED TO THE DISTRICT ENGINEER, MANED, APO 900 (MANILA), AND WAS ASSIGNED TO THE FOREIGN CLAIMS COMMISSION NO. 58 COMPOSED OF THREE ARMY OFFICERS. THAT COMMISSION DETERMINED THAT SINCE THE ,RENT" CLAIMED WAS IN FACT DAMAGES FOR USE AND OCCUPANCY OF THE LAND IN THE NATURE OF A TORTIOUS TRESPASS IT WAS COGNIZABLE UNDER THE PROVISIONS OF THE FOREIGN CLAIMS ACT, AS AMENDED, 55 STAT. 880 (31 U.S.C. 224D) AND PARAGRAPH 8 OF ARMY REGULATIONS 25-90, DATED JUNE 22, 1951. THIS OFFICE IS ADVISED THAT THE PROCEDURE FOR ADJUDICATION OF CLAIMS BY FOREIGN CLAIMS COMMISSIONS, SUCH AS WAS FOLLOWED IN THIS CASE, WAS ADOPTED FOLLOWING THE REENTRY OF THE UNITED STATES ARMED FORCES IN THE PHILIPPINES DURING WORLD WAR II, WHEN THE CONGRESS AND THE MILITARY AUTHORITIES MADE PREPARATIONS FOR THE ACCEPTANCE, PROCESSING AND PAYMENT OF VARIOUS CLASSES OF CLAIMS INCIDENT TO MILITARY ACTIVITIES COVERING THE PERIOD 1942 THROUGH 1945, FILED BY INDIVIDUALS, ETC., IN THE PHILIPPINES. SUCH CLAIMS WERE PROCESSED AND ADJUDICATED BY THE ARMY CLAIMS SERVICES IN THE PHILIPPINES PURSUANT TO THE PROVISIONS OF THE FOREIGN CLAIMS ACT, AS AMENDED, JULY 31, 1945, 59 STAT. 511, EXTENDING THE PROVISIONS OF THE ACT TO THE PHILIPPINE ISLANDS. OTHER SIMILAR CLAIMS WERE PROCESSED BY THE ARMY CLAIMS SERVICES UNDER AUTHORITY OF THE FIRST WAR POWERS ACT (55 STAT. 838), E.G. NO. 9001, DATED DECEMBER 27, 1941, AND CIRCULAR 330, WAR DEPARTMENT, AUGUST 11, 1944, WITH SUBSEQUENT CHANGES BY WAR DEPARTMENT CIRCULARS 53, 92, 142 AND 50, DATED FEBRUARY 21, 1946, AUGUST 29, 1947, MAY 17, 1948, AND NOVEMBER 27, 1948, RESPECTIVELY, AND REGULATIONS PROMULGATED BY THE COMMANDER IN CHIEF, SOUTHWEST PACIFIC, AND OF ASWESPAC. UNDER SUCH AUTHORIZATIONS, INDIVIDUAL COMMISSIONS (SUCH AS COMMISSION NO. 58) WERE NAMED TO PROCESS AND ADJUDICATE SPECIFIC INDIVIDUAL CLAIMS AND ACTIONS TAKEN THEREON WERE FINAL AND CONCLUSIVE FOR ALL PURPOSES.

THE ADMINISTRATIVE RECORDS SHOW THAT CLAIMS COMMISSION NO. 58 FORWARDED THE SUBJECT CLAIM, WITH ITS FINDINGS AND RECOMMENDATIONS, TOGETHER WITH A REPORT OF ITS INVESTIGATIONS COMPLETED IN MANILA, FOR FINAL ACTION BY THE SECRETARY OF THE ARMY. IN ITS OPINION THE COMMISSION STATED THAT "IT HAS BEEN DETERMINED THAT CLAIMS OF THIS NATURE, I.E., ALL CLAIMS ARISING FROM THE USE AND OCCUPANCY OF REAL ESTATE, NOT COVERED BY LEASE (CONTRACT), EXPRESS OR IMPLIED, SHALL BE SETTLED UNDER THE PROVISIONS OF THE FOREIGN CLAIMS ACT AND AR 25-90; " AND IT FOUND THAT THERE WAS NO EVIDENCE OF A LEASE, EXPRESS OR IMPLIED, OR THE CREATION OF A RELATIONSHIP OF LANDLORD OR TENANT, BETWEEN THE CLAIMANT AND THE UNITED STATES. IN HIS DECISION OF OCTOBER 13, 1952, TO THE CLAIMANTS, THE UNDER SECRETARY OF THE ARMY CONCLUDED THAT THE CLAIM PROPERLY WAS FOR CONSIDERATION UNDER THE FOREIGN CLAIMS ACT BUT THAT THE CLAIM WAS NOT A MERITORIOUS ONE WITHIN THE PURVIEW OF THAT ACT BECAUSE THERE WAS NO EVIDENCE THAT THE USE AND OCCUPANCY OF THE PREMISES IN FACT RESULTED FROM OR CONSTITUTED A TORTIOUS TRESPASS AGAINST THE CLAIMANTS FOR WHICH THE UNITED STATES MIGHT BE LIABLE IN DAMAGES. IT IS THE VIEW OF THIS OFFICE THAT THE ACTIONS TAKEN AS ABOVE SET OUT WERE FINAL FOR ALL ADMINISTRATIVE PURPOSES AND CONSTITUTE "A FINAL ADMINISTRATIVE SETTLEMENT OF THIS CLAIM" SUCH AS REFERRED TO IN THE PETITION FILED BY YOU IN THE COURT OF CLAIMS.

WITH RESPECT TO AVAILABILITY OF APPROPRIATIONS FOR PAYMENT OF THE CLAIM PURSUANT TO ACTION BY THE DEPARTMENT OF THE ARMY, IT IS TO BE NOTED THAT THE FOREIGN CLAIMS ACT AUTHORIZES THE SECRETARY OF THE ARMY "IF HE DEEMS ANY CLAIM IN EXCESS OF $5,000 TO BE MERITORIOUS, TO CERTIFY SUCH AMOUNT AS MAY BE FOUND TO BE JUST AND REASONABLE THEREON TO CONGRESS AS A LEGAL CLAIM FOR PAYMENT OUT OF APPROPRIATIONS THAT MAY BE MADE BY CONGRESS THEREFOR * * *" (31 U.S.C. 224D). SUCH PROVISION WAS APPLICABLE TO THE INSTANT MATTER, SINCE THE CLAIM IS IN EXCESS OF $5,000.

EVEN IF OUR OFFICE BELIEVED THAT THE CLAIM CONTAINED SUCH MERITORIOUS ELEMENTS OF LEGAL AND EQUITABLE LIABILITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS WE WOULD NOT FEEL JUSTIFIED IN REPORTING IT TO THE CONGRESS SINCE THE MATTER IS NOW PENDING IN THE COURT. IN ANY EVENT, WE COULD NOT CONSIDER THAT COURSE OF ACTION SINCE IT IS OUR VIEW THAT THE ACTION OF FOREIGN CLAIMS COMMISSION NO. 58 WAS FINAL AND CONCLUSIVE.

FURTHERMORE, THE PHILIPPINE COURT GAVE JUDGMENT FOR DAMAGES AGAINST THE JAPANESE DEFENDANTS AND HELD THE GOVERNMENT (ALIEN PROPERTY ADMINISTRATOR) NOT LIABLE. WHILE OCCUPYING AND USING THE REAL ESTATE, THE MILITARY FORCES OF THE UNITED STATES FURNISHED PROTECTION TO THE PROPERTY AGAINST LOOTING AND DETERIORATION AND IT IS REPORTED THAT THE GOVERNMENT MADE CONSIDERABLE REPAIRS TO THE PROPERTY INVOLVED. THERE WAS NO CONTRACT OR LEASE, EXPRESS OR IMPLIED, BETWEEN THE GOVERNMENT AND YOUR CLIENTS. PAYMENT OTHERWISE WERE PROPER AS JUST COMPENSATION, ASCERTAINMENT OF THE AMOUNT DUE AS SUCH IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION. SEE AMERICAN-HAWAIIAN STEAMSHIP COMPANY V. UNITED STATES, 124 F.SUPP. 378.

ACCORDINGLY, THE ACTION HERETOFORE TAKEN BY THIS OFFICE IN THE MATTER IS AFFIRMED.