B-151007, SEP. 12, 1963, 43 COMP. GEN. 252

B-151007, SEP. 12, 1963, 43 COMP. GEN. 252

STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - DATE OF ACCRUAL - SUPPLEMENTAL PAYMENTS A SECOND SUPPLEMENTAL BILL FOR ADDITIONAL FREIGHT CHARGES TO TRANSPORT SCRAPERS, NOIBN, TRACTOR DRAWN, FROM A TRANSIT STATION, UNDER A GOVERNMENT BILL OF LADING, RECEIVED IN THE GENERAL ACCOUNTING OFFICE, SEPTEMBER 19, 1962, MORE THAN 3 YEARS AFTER PAYMENT OF THE ORIGINAL TRANSPORTATION CHARGES ON MARCH 6, 1959, MAY NOT BE PAID ON THE BASIS THAT THE CLAIM WAS FILED LESS THAN 3 YEARS AFTER PAYMENT OF ADDITIONAL CHARGES IN FEBRUARY 1962, THE 3-YEAR STATUTE OF LIMITATION PROVIDED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY PUBLIC LAW 85-762, 49 U.S.C. 66, FOR FILING CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, BEGINNING TO RUN FROM DATE OF PAYMENT OF THE ORIGINAL CHARGES AND NOT FROM DATE OF PAYMENT OF A SUPPLEMENTAL CLAIM, TO PERMIT OTHERWISE COULD EXTEND THE PAYMENT PERIOD INDEFINITELY, DEFEATING THE PURPOSE OF THE STATUTE AND, THEREFORE, THE ORIGINAL TRANSPORTATION CHARGES OF THE CARRIER HAVING BEEN PAID MARCH 6, 1959, CLAIM FOR THE SECOND SUPPLEMENTAL BILL RECEIVED SEPTEMBER 19, 1962, IS BARRED.

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, SEPTEMBER 12, 1963:

IN YOUR LETTER OF JANUARY 22, 1963, FILE G-649235, YOU REQUEST RECONSIDERATION OF OUR LETTER OF JANUARY 8, 1963, ADVISING YOU THAT YOUR CLAIM IN THE AMOUNT OF $426.93 PER YOUR SUPPLEMENTAL BILL NO. 649235-A FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF TWO SCRAPERS, NOIBN, TRACTOR DRAWN, FROM PRAIRIE, MISSISSIPPI, A TRANSIT STATION, TO GALLAGHER, NEW MEXICO, UNDER GOVERNMENT BILL OF LADING NO. AF- T-106172, DATED JANUARY 5, 1959, WAS BARRED. THIS SHIPMENT MOVED FROM MCNAIR, NORTH CAROLINA, TO THE TRANSIT STATION UNDER GOVERNMENT BILLS OF LADING NOS. AF-7837962 AND AF-7837965 DATED JANUARY 20, 1958.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID ON MARCH 6, 1959, CHARGES IN THE AMOUNT OF $469.56 FOR THE OUTBOUND MOVEMENT. NO EXCEPTIONS WERE FOUND HERE IN THE AUDIT OF THE PAYMENT VOUCHER. SUBSEQUENTLY, A SUPPLEMENTAL BILL, SUPP. NO. 649235, IN THE AMOUNT OF $279.23, REPRESENTING AN ADDITIONAL CHARGE FOR THE OUTBOUND MOVEMENT UNDER BILL OF LADING AF-T-106172, WAS RECEIVED IN OUR OFFICE ON MARCH 6, 1961. THE AMOUNT CLAIMED BY THAT BILL WAS ALLOWED IN FULL BY OUR CERTIFICATE OF SETTLEMENT DATED JANUARY 19, 1962, WHICH IT APPEARS FROM YOUR LETTER WAS PAID ON FEBRUARY 12 OR 14, 1962.

YOUR SUPPLEMENTAL BILL NO. 649235-A, IN THE AMOUNT OF $426.93, WAS RECEIVED IN OUR OFFICE ON SEPTEMBER 19, 1962. AS THIS WAS MORE THAN 3 YEARS AFTER THE FIRST PAYMENT ON MARCH 6, 1959, THE BILL AND ACCOMPANYING PAPERS WERE RETURNED TO YOU ON JANUARY 8, 1963, WITH OUR FORM LETTER T- 392, ADVISING THAT THE CLAIM WAS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY PUBLIC LAW 85-762, 49 U.S.C. 66. IN YOUR LETTER OF JANUARY 22, 1963, YOU PROTEST THIS ACTION AND ALLEGE THAT YOUR CLAIM WAS FILED LESS THAN 3 YEARS AFTER THE SECOND PAYMENT ON FEBRUARY 12 OR 14, 1962, STATING THAT:

INASMUCH AS THE TRANSPORTATION ACT ESTABLISHES THE TIME LIMIT OF THREE YEARS FROM THE DATE OF THE PAYMENT OF CHARGES, QUESTION ARISES AS TO WHICH DATE SHOULD BE USED IN DETERMINING THE THREE YEAR STATUTORY PERIOD.

NOWHERE IN THE HEARINGS OR IN THE REPORT BY THE CONGRESS DURING CONSIDERATION OF THE BILLS WHICH BECAME PUBLIC LAW 85-762 IS IT SUGGESTED THAT THE PERIOD SHOULD RUN FROM THE DATE OF A SUPPLEMENTAL PAYMENT RATHER THAN FROM THE DATE OF ORIGINAL PAYMENT. ON PAGES 20 AND 21 OF THE PRINTED HEARINGS BEFORE A SUBCOMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES, CONCERNING H.R. 8742, H.R. 8743 AND S.377, 85TH CONGRESS, WHICH BECAME PUBLIC LAW 85-762 OF AUGUST 26, 1958, THERE IS A RECORD THAT, ON APRIL 30, 1958, MR. EDWIN L. FISHER, THEN GENERAL COUNSEL, U.S. GENERAL ACCOUNTING OFFICE, WAS ASKED BY CONGRESSMAN JOSEPH P. O-HARA OF MINNESOTA WHETHER THE STATUTE WOULD BEGIN TO RUN FROM THE TIME OF THE SERVICE OR THE TIME OF BILLING. THE FOLLOWING DISCUSSION, ON SUCH POINT, IS THERE REPORTED:

MR. FISHER. UNDER THESE BILLS IT IS--- AT LEAST IT IS ALL PROSPECTIVE--- GENERALLY, FROM THE DATE OF PAYMENT. OR, IF CARRIERS PAID AND WE AUDITED THE ACCOUNT AND MAKE A DEDUCTION, THEN, WHEN WE DEDUCT, THE STATUTE OF LIMITATIONS WOULD START FROM THAT TIME.

MR. O-HARA. THAT WOULD WORK THE SAME WAY WITH THE CARRIER? I MEAN THE 3 -YEAR STATUTE FROM THE TIME OF PAYMENT WOULD APPLY TO THE CARRIER?

MR. FISHER. HE WOULD HAVE 3 YEARS TO FILE A CLAIM FOR AN ADDITIONAL AMOUNT.

MR. O-HARA. FOR AN ADDITIONAL AMOUNT FROM THE TIME THE GOVERNMENT PAYS?

MR. FISHER. THAT IS RIGHT.

SUCH COLLOQUY SEEMS CLEARLY TO INDICATE THE PAYMENT FROM WHICH THE 3-YEAR STATUTORY PERIOD WOULD RUN WAS THE INITIAL PAYMENT OF THE CARRIER'S BILL PRIOR TO OUR AUDIT.

IN H.REPT. NO. 2346, DATED AUGUST 1, 1958, ON H.R. 8742, PAGE 5, THE PURPOSE OF THE PROPOSED AMENDMENT TO SECTION 322 OF THE TRANSPORTATION ACT IS STATED AS FOLLOWS:

THIS AMENDMENT PUTS A LIMIT OF 3 YEARS ON THE TIME THE GENERAL ACCOUNTING OFFICE MAY MAKE DEDUCTIONS; REDUCES FROM 10 TO 3 YEARS THE TIME A CARRIER MAY FILE A CLAIM WITH THE GENERAL ACCOUNTING OFFICE; * * *.

IT IS CLEAR THEREFORE THAT THE AMENDMENT WHICH BECAME THE SECOND PROVISO TO SECTION 322 WAS INTENDED TO REDUCE THE PREVIOUS 10-YEAR PERIOD TO 3 YEARS. THE 10-YEAR ACT BE GAIN TO RUN FROM THE DATE THE SERVICE WAS PERFORMED AND IS NOT EXTENDED BY ALLOWANCE OF A CLAIM DURING THE PERIOD. A SUPPLEMENTAL BILL PRESENTED AFTER THE EXPIRATION OF THE 10-YEAR PERIOD IS A NEW CLAIM BARRED BY THE STATUTE. 36 COMP. GEN. 360; ID. 362. IF THE 3-YEAR PERIOD UNDER THE PRESENT ACT COULD RUN FROM ANY SUPPLEMENTAL PAYMENT, THE PERIOD COULD BE EXTENDED ALMOST INDEFINITELY AND THUS DEFEAT THE EXPRESS PURPOSE OF THE AMENDMENT.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 85-762 ALSO INDICATES THAT ONE PURPOSE OF THE AMENDMENT TO SECTION 322 WAS TO CREATE EQUALITY OF TREATMENT BETWEEN THE GOVERNMENT AND THE CARRIERS AND TO PUT AN END TO THE ASSERTION MANY YEARS AFTER RENDITION OF THE SERVICE OF CLAIMS FOR OR AGAINST THE GOVERNMENT. IN THIS CONNECTION SEE THE TESTIMONY OF MR. EDWIN L. FISHER, THEN GENERAL COUNSEL OF THE GENERAL ACCOUNTING OFFICE, IN HOUSE HEARINGS OF APRIL 30, 1958, MENTIONED ABOVE, AT PAGES 15 AND 20, AND THE TESTIMONY OF MR. EDGAR WATKINS, WHO APPEARED FOR NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, AND THE AMERICAN TRUCKING ASSOCIATION, INC., PRINTED AT PAGE 34 OF THE REPORT OF SUCH HEARINGS. IF A CLAIM COULD BE SUBMITTED AND CONSIDERED FOR A PERIOD OF 3 YEARS FROM ANY PREVIOUS SUPPLEMENTAL PAYMENT, THE PURPOSE OF PRECLUDING THE ASSERTION MANY YEARS AFTER RENDITION OF THE SERVICE OF CLAIMS, WOULD, LIKE THE PREVIOUSLY CONSIDERED PURPOSE OF REDUCING THE PERIOD FROM 10 YEARS TO 3 YEARS, BE FRUSTRATED.

FINALLY IT IS A SETTLED PRINCIPAL OF STATUTORY CONSTRUCTION THAT A WORK USED MORE THAN ONCE IN A STATUTE OR SECTION OF A STATUTE HAS THE SAME MEANING, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. UNITED STATES V. COOPER CORP., 312 U.S. 600; ATLANTIC CLEANERS AND DYERS V. UNITED STATES, 286 U.S. 427, 433.

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, PROVIDES:

PAYMENT FOR TRANSPORTATION OF THE UNITED STATES MAIL AND OF PERSONS OR PROPERTY FOR OR ON BEHALF OF THE UNITED STATES BY ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT, AS AMENDED, OR THE CIVIL AERONAUTICS ACT OF 1938, SHALL BE MADE UPON PRESENTATION OF BILLS THEREFOR, PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, * * *: PROVIDED FURTHER, THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF * * * (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, * * *.

THE WORD "PAYMENT" BEGINNING THIS SECTION REFERS TO PAYMENT OF THE ORIGINAL BILL PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, AND THE EVIDENCE, AS INDICATED ABOVE, SUPPORTS A LIKE CONSTRUCTION OF THE WORD IN THE SECOND PROVISO TO THE SAME SECTION.

ACCORDINGLY, THE ACTION TAKEN IN ADVISING YOU THAT YOUR CLAIM BY SUPPLEMENTAL BILL NO. 649235-A WAS BARRED APPEAR PROPER AND IS SUSTAINED.