B-144864, SEP. 26, 1961

B-144864, SEP. 26, 1961

TO THE WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1961, IN WHICH YOU, IN EFFECT, REQUEST RECONSIDERATION OF OUR DECISION OF MAY 15, 1961, IN B 144864, WHICH ALLOWED $116.03 OF THE $488.25 YOU CLAIMED ON BILL NO. G 01387. YOUR CLAIM IN THE AMOUNT OF $488.25 WAS FOR ADDITIONAL FREIGHT CHARGES FOR TRANSPORTATION SERVICES RENDERED IN JUNE 1945 FOR WHICH PAYMENT WAS MADE IN AUGUST 1945. NO FURTHER CLAIM IN THE MATTER WAS MADE BY YOU UNTIL SEPTEMBER 1958; HOWEVER, OUR OFFICE DID MAKE A DEDUCTION OF $116.03 PURSUANT TO 49 U.S.C. 66 IN JANUARY 1959. YOU WERE ADVISED THAT PAYMENT OF $372.22 ($488.25 MINUS $116.03) WAS BARRED BY THE TEN-YEAR STATUTE OF LIMITATIONS, 31 U.S.C. 71A, AND YOU WERE ALLOWED ONLY THE AMOUNT OF $116.03.

YOU NOW CONTEND THAT IN MAKING THE DEDUCTION IN JANUARY 1959 OUR OFFICE HAS, IN EFFECT, WAIVED THE STATUTE OF LIMITATIONS AS TO THE ORIGINAL CLAIM IN THE TOTAL AMOUNT OF $488.25. THE STATUTE PROVIDES, IN PART, THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE TEN FULL YEARS PROVIDED IN THE LAW BEGINS TO RUN FROM THE DATE OF DELIVERY OF THE SHIPMENT, AS EVIDENCED BY THE CONSIGNEE'S CERTIFICATE OF DELIVERY. IN THE PRESENT CASE THE BILL OF LADING SHOWS THAT THE CONSIGNEE RECEIPTED FOR THE DELIVERY OF THE GOODS ON JUNE 15, 1945. THEREFORE, THE FULL TEN YEARS IN WHICH YOUR CLAIM COULD HAVE BEEN CONSIDERED EXPIRED ON JUNE 15, 1955.

OUR NOTICE OF OVERPAYMENT OF $116.03 WAS ISSUED ON APRIL 11, 1958, AND OUR OFFICE ACTUALLY MADE RECOVERY OF THIS AMOUNT BY DEDUCTION FROM YOUR BILL NO. 49-1-20 ON JANUARY 13, 1959. THIS DEDUCTION GAVE RISE TO AN ENTIRELY NEW CAUSE OF ACTION AND A NEW TEN-YEAR PERIOD OF LIMITATION BEGAN TO RUN FOR A CLAIM OF THE AMOUNT DEDUCTED. THE NEW CLAIM FIRST ACCRUED ON THE DATE OF DEDUCTION AND COULD NOT RELATE BACK TO THE ORIGINAL TRANSPORTATION SERVICE.

YOU INDICATE THAT OUR OFFICE SHOULD BE WILLING TO WAIVE THE STATUTE OF LIMITATIONS. ORDINARILY, NO OFFICER OR AGENCY OF THE UNITED STATES HAS THE POWER TO WAIVE THE STATUTE OF LIMITATIONS (MODERN ENGINEERING CO., INC. V. UNITED STATES, 126 CT.CL. 136) AS AN INDIVIDUAL MAY DO IF HE SO ELECTS (FINN V. UNITED STATES, 123 U.S. 227), SO THE DEDUCTION AND SUBSEQUENT REPAYMENT OF $116.03 COULD NOT REVIVE LIABILITY FOR PAYMENT OF THE CHARGES IN EXCESS OF THAT AMOUNT WHICH WAS CLAIMED IN YOUR SUPPLEMENTAL BILL NO. G-01387. NEITHER CAN THE DEDUCTION AND SUBSEQUENT REPAYMENT OF $116.03 TO YOU BE CONSTRUED AS A PART PAYMENT OR ACKNOWLEDGEMENT OF, OR A PROMISE TO PAY, A LARGER DEBT SUCH AS MIGHT REVIVE AN INDEBTEDNESS BARRED BY THE STATUTE OF LIMITATIONS IF THE MATTER HAPPENED TO BE ONE BETWEEN PRIVATE PARTIES INSTEAD OF ONE IN WHICH THE GOVERNMENT IS A PARTY. AT THE TIME THIS SHIPMENT MOVED THE STATUTE--- 31 U.S.C. 71A--- FOREVER BARRED EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE UNLESS SUCH CLAIM WAS RECEIVED IN OUR OFFICE WITHIN THE TEN-YEAR PERIOD, BUT CONGRESS PLACED NO LIMITATION UPON ADMINISTRATIVE SETTLEMENT OF CLAIMS IN FAVOR OF THE UNITED STATES, AND IT DOES NOT APPEAR THAT SUCH A LIMITATION WAS INTENDED. NOR DID IT MATTER HOW LONG A TIME ELAPSED BEFORE THE ERROR IN MAKING AN OVERPAYMENT WAS DISCOVERED, OR HOW LONG THE ATTEMPT TO RECOVER IT WAS DEFERRED. THE STATUTE OF LIMITATIONS DID NOT ORDINARILY RUN AGAINST THE UNITED STATES AND DID NOT PRESENT A BAR TO A SUIT FOR THE AMOUNT. GRAND TRUNK WESTERN RY.CO. V. UNITED STATES, 252 U.S. 112, 121. SEE, ALSO, UNITED STATES V. THOMPSON, 98 U.S. 486 AND UNITED STATES V. SUMMERLIN, 310 U.S. 414, 416. THUS IT SEEMS CLEAR THAT AS TO A SHIPMENT WHICH MOVED IN 1945, THE STATUTE DOES NOT OPERATE TO BAR THE UNITED STATES FROM ASSERTING AND COLLECTING A CLAIM MORE THAN TEN YEARS AFTER ITS ACCRUAL.

ACCORDINGLY, SINCE YOUR LETTER OF JUNE 9, 1961, CONTAINS NOTHING TO JUSTIFY A REVERSAL OR MODIFICATION OF THE PRIOR CONCLUSION, THE DECISION OF MAY 15, 1961, IS AFFIRMED.