B-137741, B-155485, MAR. 1, 1965

B-137741, B-155485, MAR. 1, 1965

TO THE SOUTHERN PACIFIC COMPANY:

REFERENCE IS MADE TO YOUR EIGHT LETTERS UNDER DATES OF OCTOBER 22, 26, AND 27, 1964, FILES YM-85-D 185291, 215763, 226149, 258737, 269030, 369700, AND 361000, REQUESTING REVIEW OF OUR SETTLEMENTS WHICH DISALLOWED CERTAIN SUPPLEMENTAL BILLS INVOLVING THE TARIFF T-1-A ISSUE. YOUR LETTER OF OCTOBER 26, 1964, FILE YM-85-D-369700, CONCERNS THE SAME BILL (D- 369700) AS YOUR OCTOBER 22ND LETTER OF THE SAME FILE REFERENCE.

WE AGREE THAT THE ISSUE CONCERNING THE APPLICATION OF THE PROVISIONS OF TARIFF T-1-A HAS BEEN JUDICIALLY DETERMINED IN FAVOR OF THE RAILROADS. WESTERN PACIFIC RAILROAD CO. V. UNITED STATES, 144 CT.CL. 1 (NOVEMBER 5, 1958).

OUR RECORDS SHOW THAT YOUR BILL NO. 185291 (OUR CLAIM FILE TK 508763), AND BILL NO. 215763 (OUR CLAIM FILE TK-489949), FOR $327.55 AND $547.48, RESPECTIVELY, COVERING MOVEMENTS OF MACHINERY FROM STORAGE IN TRANSIT AT LATHROP, CALIFORNIA, TO OAKLAND, CALIFORNIA, UNDER GOVERNMENT BILLS OF LADING WQ-8969962 DATED DECEMBER 18, 1942, AND WQ 9475822 DATED MARCH 9, 1943, WERE INCLUDED IN THE PETITION FILED IN SOUTHERN PACIFIC COMPANY V. UNITED STATES, CT.CL. NO. 331-58, WHEREIN THE UNITED STATES COURT OF CLAIMS GRANTED A JUDGMENT OF $82,361.70 AS FINAL SETTLEMENT FOR ALL THE ITEMS IN THE SUIT. YOUR BILL NO. 226149 (OUR FILE TK-231583) FOR $764.87, INVOLVING A SIMILAR SITUATION WAS INCLUDED IN THE PETITION FILED IN SOUTHERN PACIFIC V. UNITED STATES, CT.CL. NO. 205-63, WHEREIN THE UNITED STATES COURT OF CLAIMS GRANTED A JUDGMENT OF $57,713.33 AS FINAL SETTLEMENT FOR ALL ITEMS IN THE SUIT. THEREFORE, AS TO THESE THREE CLAIMS, NO FURTHER ADJUSTMENT CAN PROPERLY BE MADE, SINCE UNDER THE PROVISIONS OF 28 U.S.C. 2517 (B), THESE CLAIMS ARE EXTINGUISHED. U.S.C. 2517 (B) READS AS FOLLOWS:

"PAYMENT OF ANY SUCH (FINAL) JUDGMENT * * * SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'

WITH REGARD TO YOUR BILLS NO. 369030 AND 369700, OUR CLAIM FILES TK 586831 AND TK-567024, RESPECTIVELY, OUR RECORDS SHOW THAT YOU PREVIOUSLY REQUESTED PAYMENT OF THESE CLAIMS IN LETTERS DATED MARCH 29, 1962. THE AMOUNTS CLAIMED WERE ALLOWED IN FULL BY OUR STATEMENTS OF SETTLEMENT DATED JUNE 20, 1962, AND JUNE 8, 1962, ON YOUR SUPPLEMENTAL BILLS NO. D-369030 AND D-36700-9.

YOUR BILLS NO. 258737 AND 361000, OUR CLAIM FILES TK-913334 ANDTK 841706, RESPECTIVELY, WERE FIRST SUBMITTED TO OUR OFFICE IN JULY 1954, IN THE AMOUNTS OF $2,305.32 AND $1,146.87, AS ADJUSTMENTS IN CHARGES TO REFLECT NONAPPLICABILITY OF TRANSIT TARIFF NO. T-1-A. YOUR CLAIM FOR $2,305.72 ON BILL NO. 258737 IS FOR THE RECOVERY OF A DEDUCTION IN THAT AMOUNT MADE IN APRIL 1953, AND YOUR CLAIM FOR $441.41 IS FOR THE RECOVERY OF THE BALANCE OF $1,146,87 DEDUCTED IN JANUARY 1954; AND THE REMAINDER OF $705.46 WAS SUBSEQUENTLY INCLUDED IN THE PETITION FILED IN SOUTHERN PACIFIC CO. V. UNITED STATES, CT.CL. NO. 144-57, WHEREIN THE COURT OF CLAIMS GRANTED A JUDGMENT OF $11,291.86 AS FINAL SETTLEMENT OF ALL ITEMS IN SUIT.

THE FINAL DENIAL OF YOUR CLAIMS WAS ACCOMPLISHED BY LETTERS TO YOU DATED NOVEMBER 17, 1954 (BILL NO. 258737) AND SEPTEMBER 28, 1954 (BILL NO. 361000). THUS, YOUR LETTERS IN OCTOBER 1964, REQUESTING REVIEW OF THE SETTLEMENTS WERE RECEIVED ALMOST 10 YEARS FROM THE TIME YOU WERE INFORMED THAT NO FURTHER ACTION WOULD BE TAKEN ON YOUR CLAIMS, AND THAT THE ITEMS WERE PROPERLY SETTLED. DURING THE INTERVENING PERIOD, BEGINNING IN MARCH 1956, OUR TRANSPORTATION DIVISION INFORMED VARIOUS CLAIMANTS, BY LETTERS COVERING EACH OF THE CLAIMS THEN ON HAND AND ON CLAIMS SUBSEQUENTLY RECEIVED, THAT NO ACTION WOULD BE TAKEN ON SUCH CLAIMS PENDING FINAL JUDICIAL DETERMINATION OF THE TARIFF T-1-A ISSUE. SINCE, IN MARCH 1956, THE TWO CLAIMS IN QUESTION WERE NO LONGER OPEN IN THE DIVISION AND SINCE YOU DID NOT ASK THAT ACTION ON THESE CLAIMS BE HELD IN ABEYANCE UNDER THE SAME PROCEDURE, THEY WERE NOT INCLUDED AMONG THE CLAIMS SETTLED UNDER THE GENERALLY APPROVED PROCEDURE SUBSEQUENT TO THE COURT'S DECISION ON THE T-1 -A ISSUE ON NOVEMBER 5, 1958, IN THE WESTERN PACIFIC CASE, 144 CT.CL. 1, ALMOST SIX YEARS PRIOR TO THE DATE OF YOUR PRESENT REQUESTS FOR ADDITIONAL ALLOWANCES.

IN THE CIRCUMSTANCES, YOUR PRESENT REQUESTS FOR ADDITIONAL ALLOWANCES PER YOUR BILLS NOS. 258737 AND 361000 MUST BE REGARDED AS NEW CLAIMS PRESENTED MORE THAN 10 YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUED, THAT IS, FROM THE TIME OF THE DEDUCTIONS IN APRIL 1953, AND JANUARY 1954, AND THEY ARE THEREFORE BARRED UNDER THE PROVISIONS OF 31 U.S.C. 71A.