B-145113, JUL. 3, 1961

B-145113, JUL. 3, 1961

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 17, 1961, FROM ADMIRAL LOT ENSEY, DEPUTY COMPTROLLER, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION CONCERNING CLAIM NO. Z 20/694) PRESENTED BY THE DIRECTOR OF NAVY ACCOUNTS, BRITISH ADMIRALTY, PINNER, MIDDLESEX, ENGLAND, FOR 3336 POUNDS STERLING 16. 5. COVERING SUPPLIES AND SERVICES FURNISHED THE UNITED STATES NAVY IN 1946.

THE CLAIM WAS TRANSMITTED HERE FOR SETTLEMENT BY LETTER OF DECEMBER 17, 1959, FROM THE UNITED STATES NAVY REGIONAL ACCOUNTS OFFICE, WASHINGTON, D.C. IT WAS DENIED BY OUR CLAIMS DIVISION IN LETTER OF FEBRUARY 19, 1960, FOR THE REASON THAT THE CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE 10-YEAR PERIOD PRESCRIBED THEREFOR BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH PROVIDES AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) 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, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

REQUEST FOR RECONSIDERATION OF THE ACTION PREVIOUSLY TAKEN HERE IS SAID TO ARISE IN VIEW OF REQUEST MADE BY THE BRITISH EMBASSY TO THE DEPARTMENT OF STATE IN WHICH IT IS STATED, QUOTING FROM THE LETTER OF FEBRUARY 17, AS FOLLOWS:

"THE CLAIMS IN QUESTION ARE IN RESPECT OF STORES AND SERVICES SUPPLIED BY THE ROYAL NAVY AND ARE UNQUESTIONABLY INTERGOVERNMENTAL OR INTERNATIONAL CLAIMS. THE UNITED STATES AUTHORITIES APPEAR TO HAVE OVERLOOKED THE WELL ESTABLISHED PRINCIPLE THAT A STATE CANNOT INVOKE ITS OWN MUNICIPAL LEGISLATION AS A REASON FOR REFUSING TO MEET ITS INTERNATIONAL OBLIGATIONS.'

UNDER THE PROVISIONS OF THE STATUTE QUOTED ABOVE, IT IS CLEAR 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 SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' THE ONLY EXCEPTIONS ARE WITH REFERENCE TO STATES, TERRITORIES, ETC., AND PERSONS IN THE MILITARY SERVICE. SINCE THE CLAIM UNDER CONSIDERATION WAS NOT FILED OR RECEIVED IN OUR OFFICE WITHIN 10 YEARS FROM THE DATE IT FIRST ACCRUED AND DID NOT FALL WITHIN THE SPECIFIC EXCEPTIONS, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO RETURN IT TO THE BRITISH ADMIRALTY TOGETHER WITH A COPY OF THE STATUTE AS A BARRED CLAIM, IN ACCORDANCE WITH SECTION 2 THEREOF. SEE 32 COMP. GEN. 267.

THE BRITISH EMBASSY CONTENDS TO THE EFFECT THAT THE ACT OF OCTOBER 9, 1940, MAY NOT BE INVOKED BY THE GOVERNMENT IN RESPECT OF THE SATISFACTION OT ITS INTERNATIONAL PECUNIARY OBLIGATIONS FOUNDED ON THE PRINCIPLES OF INTERNATIONAL LAW, AND THAT WHEN CONFLICT EXISTS BETWEEN THE TWO SETS OF LAWS THE LATTER SHOULD PREVAIL. A PRACTICAL DIFFICULTY WITH THIS ARGUMENT IS THAT SINCE INTERNATIONAL LAW IS NOT BINDING UPON THE CONGRESS THE CONGRESS HAS THE POWER TO ENACT A STATUTE, IF IT SO DESIRES, IN CONFLICT WITH INTERNATIONAL LAW. UNITED STATES V. SIEM, 299 F. 582. AND THAT WHERE SUCH A CONFLICT EXISTS, THE STATUTE TAKES PRECEDENCE OVER PRINCIPLES OF INTERNATIONAL LAW. GUARANTY TRUST CO. OF NEW YORK V. U.S., 304 U.S. 126, 135-136; THE KESTOR, 110 F. 432, 448. SEE 22 COMP. GEN. 1025, 1031, AND OTHER COURT CASES CITED THEREIN.

THE STATUTE IN QUESTION IS A LIMITATION STATUTE ENACTED FOR THE BENEFIT OF THE GOVERNMENT AND THE COURTS HAVE HELD THAT A GOVERNMENTAL OFFICIAL IS NOT EMPOWERED TO WAIVE SUCH LIMITATIONS. COMPAGNIE GENERALE TRANSATLANTIQUE V. UNITED STATES, 51 F.2D 1053; MAHONING COAL R.CO. ET AL. V. UNITED STATES, 28 F.2D 917. SINCE THE CONGRESS HAS SEEN FIT TO LIMIT THE PERIOD OF TIME FOR THE FILING OF CLAIMS AGAINST THE GOVERNMENT AND HAS EXPRESSLY INDICATED CERTAIN EXCEPTIONS THERETO, WE ARE WITHOUT AUTHORITY TO READ INTO THE STATUTE BY INTERPRETATION AN ADDITIONAL EXCEPTION WHICH THE CONGRESS DID NOT IN FACT PROVIDE FOR. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO REJECT THE CLAIM IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940.