B-147479, NOV. 14, 1961

B-147479, NOV. 14, 1961

TO MR. MAX JERRY HOROWITZ:

YOUR LETTER DATED OCTOBER 9, 1961, IN EFFECT REQUESTS REVIEW OF THE REFUSAL OF OUR CLAIMS DIVISION TO CONSIDER YOUR CLAIM FOR DAMAGES SUFFERED BY YOU AS THE RESULT OF AN ALLEGED ERRONEOUS MEDICAL DIAGNOSIS MADE AT THE TIME YOU WERE EXAMINED FOR INDUCTION INTO THE ARMED FORCES IN 1942.

IN YOUR LETTER DATED AUGUST 8, 1961, YOU ALLEGED THAT AFTER TAKING YOUR PHYSICAL EXAMINATION FOR INDUCTION INTO THE ARMED FORCES IN 1942, YOU WERE INFORMED THAT YOU HAD SYPHILIS; THAT THEREAFTER YOU WERE TREATED THREE YEARS BY A PRIVATE DOCTOR; THAT YOU WERE THEN ACCEPTED BY THE ARMY, AND TREATED IN THE ARMY FOR THE SAME DISEASE; THAT AFTER YOUR DISCHARGE, YOU CONTINUED TREATMENT FOR AT LEAST FIVE YEARS AND THAT UPON BEING GIVEN A SPECIAL BLOOD TEST, YOU WERE INFORMED THAT YOU HAD NEVER HAD SYPHILIS. BASED UPON THESE FACTS AND CIRCUMSTANCES, YOU REQUESTED TO BE ADVISED HOW YOU COULD GET REIMBURSED FOR THE TREATMENTS NEVER NEEDED, THE LOSS OF YOUR HEALTH AND THE LOSS OF YOUR BUSINESS DURING THIS LONG PERIOD--- 1942 TO 1955.

BY LETTER DATED AUGUST 31, 1961, YOUR CLAIM WAS RETURNED TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, 237, AND YOU WERE INFORMED THAT, SINCE YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE MORE THAN TEN YEARS AFTER IT FIRST ACCRUED, IT WAS BARRED BY THE PROVISIONS OF THE OCTOBER 9, 1940 ACT. IN YOUR REPLY, DATED SEPTEMBER 21, 1961, YOU INDICATED THE BELIEF THAT THE ACT OF OCTOBER 9, 1940, WOULD NOT APPLY TO YOUR CASE FOR THE REASON THAT YOU ONLY LEARNED THAT THE DIAGNOSIS WAS ERRONEOUS IN 1955, WHICH WAS WITHIN THE 10-YEAR PERIOD. THE CLAIMS DIVISION IN A LETTER DATED OCTOBER 2, 1961, ADVISED YOU THAT YOUR CLAIM, IF ANY, ACCRUED NOT LATER THAN THE DATE OF YOUR DISCHARGE FROM THE UNITED STATES ARMY AND SUSTAINED THE ACTION OF AUGUST 31, 1961, IN BARRING YOUR CLAIM. YOU NOW REITERATE YOUR PREVIOUS ALLEGATION THAT YOUR CLAIM IS NOT BARRED, SINCE IT ONLY ACCRUED AFTER YOU WERE INFORMED IN 1955 THAT YOU NEVER HAD SYPHILIS; YOU CONTEND YOU ARE ENTITLED TO SOMETHING AND THAT IF WE DO NOT INTEND DOING SOMETHING TO "PLEASE TELL ME HOW I GO ABOUT GETTING MYSELF A VETERANS LAWYER.'

THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, 237, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF TITLE 31, U.S.C. SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. WHILE SECTIONS 71 AND 236 OF THE CODE CONFER BROAD JURISDICTION UPON THIS OFFICE FOR THE CONSIDERATION OF CLAIMS BY OR AGAINST THE UNITED STATES, OUR JURISDICTION DOES NOT EXTEND TO SEVERAL TYPES OF CLAIMS WHICH THE CONGRESS HAS PROVIDED SPECIFICALLY SHALL BE SETTLED ELSEWHERE.

YOUR CLAIM FOR DAMAGES IS ONE SOUNDING IN TORT. GENERALLY, THE UNITED STATES IS NOT LIABLE FOR INJURIES OR DAMAGES TO THE PERSON OR PROPERTY OF AN INDIVIDUAL CAUSED BY TORTS OR NEGLIGENCE OF ITS OFFICERS OR EMPLOYEES OR BY ITS AUTHORIZED ACTIVITIES. THIS RULE IS KNOWN AS THE DOCTRINE OF SOVEREIGN OR GOVERNMENTAL IMMUNITY AND, THEREFORE, THE FEDERAL GOVERNMENT IS NOT LIABLE FOR TORTS COMMITTED IN ITS SERVICE BY ITS OFFICERS OR EMPLOYEES UNLESS IT CONSENTS TO SUCH LIABILITY. SUCH CONSENT HAS BEEN GIVEN IN REGARD TO CERTAIN TORT CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT OF 1946, 28 U.S.C. 2671-2680. THE ACT CONFERS ON THE HEAD OF EACH FEDERAL AGENCY CONCLUSIVE AUTHORITY TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND SETTLE ANY CLAIM FOR MONEY DAMAGES OF $2,500 OR LESS AGAINST THE UNITED STATES ACCRUING ON OR AFTER JANUARY 1, 1945. (SEE 26 U.S.C. 2672.) EXCLUSIVE JURISDICTION FOR CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES OVER THAT AMOUNT IS VESTED IN THE UNITED STATES DISTRICT COURTS. (SEE 28 U.S.C. 1346 (B).) CONSEQUENTLY, THIS OFFICE HAS NO JURISDICTION TO CONSIDER YOUR TORT CLAIM.