B-153730, NOV. 20, 1964

B-153730, NOV. 20, 1964

TO CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1964, FILE 548 U.S. GOVERNMENT-FREIGHT-EXPORT, ACKNOWLEDGED OCTOBER 12, ENCLOSING A LIST OF THE BILLS OF LADING WHICH YOU SAY INVOLVE PORT SERVICE CHARGES AND ALLOWANCES SIMILAR TO THOSE INVOLVED IN YOUR SUPPLEMENTAL BILLS G 239389-A FREIGHT AND G-239336-A FREIGHT, THE DISALLOWANCE OF WHICH WAS SUSTAINED IN OUR DECISION OF JUNE 23, 1964, B-153730. YOU POINT OUT THAT SUITS HAVE BEEN FILED IN THE COURT OF CLAIMS BY THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, THE SOUTHERN PACIFIC COMPANY AND THE UNION PACIFIC RAILROAD, TO RECOVER AMOUNTS COLLECTED BY OUR OFFICE ON SUCH ISSUE, AND YOU INDICATED YOUR WILLINGNESS TO HAVE YOUR CLAIMS AND BILLINGS FOR SUCH PORT SERVICE CHARGES AND ALLOWANCES GOVERNED BY THE FINAL DECISION IN THESE CASES, PROVIDED THE GENERAL ACCOUNTING OFFICE AGREES TO PROTECT YOUR INTEREST ON THIS BASIS AND FURTHER AGREES TO FOREGO THE STATUTORY PERIOD FOR COLLECTION PENDING THE OUTCOME OF THE SUITS FILED IN THE COURT OF CLAIMS. YOU ALSO ASK WHETHER SUCH PROTECTION CAN BE OBTAINED BY THE FILING IN OUR OFFICE OF YOUR LETTER OF SEPTEMBER 21, 1964, AND THE ATTACHED STATEMENT OF THE BILLS OF LADING INVOLVED, OR WHETHER IT WOULD BE NECESSARY FOR YOU TO FILE A SEPARATE SUIT TO PROTECT YOUR INTEREST.

AS YOU INDICATE, SUITS INVOLVING THE PACIFIC PORT SERVICE CHARGES AND ALLOWANCES HAVE BEEN FILED BY THE THREE WESTERN CARRIERS MENTIONED ABOVE. SUCH ISSUE, AMONG OTHERS, IS INVOLVED IN TWO SUITS FILED BY THE ATKINSON, TOPEKA AND SANTA FE RAILWAY, CT.CL. NOS. 183-63 AND 92 64, TWO BY THE UNION PACIFIC RAILROAD CO., CT.CL. NOS. 283-63 AND 132 64, ONE BY THE SOUTHERN PACIFIC CO., CT.CL. NO. 98-64, AND ONE BY THE WESTERN PACIFIC RAILROAD CO., CT.CL. NO. 278-63. SUCH ISSUE IS FOR THE MOST PART A SUBSIDIARY ONE, THE SUITS INVOLVING OTHER ISSUES AS WELL. AS YOU MAY BE AWARE, SUCH SUITS OFTEN ARE FILED TO PRECLUDE THE RUNNING OF THE APPLICABLE STATUTES OF LIMITATIONS WHICH MIGHT FORECLOSE THE CARRIER'S RECOVERING ADDITIONAL AMOUNT WHICH IT CONSIDERS IS OR MAY BE DUE IT. ITEMS INVOLVING A PARTICULAR ISSUE SUCH AS THIS ARE OFTEN DISMISSED WHEN THE CARRIER HAS HAD A FULL OPPORTUNITY TO LOOK INTO THE MATTER AND ARE OCCASIONALLY COMPROMISED BY AGREEMENT BETWEEN THE CARRIER AND THE DEPARTMENT OF JUSTICE. THUS, THE FACT THAT SUITS INVOLVING IN PART SUCH ISSUE HAVE BEEN FILED IS NO ASSURANCE THERE WILL BE A DECISION BY THE COURT OF CLAIMS ON THE MERITS OF THE ISSUE. MOREOVER, ALTHOUGH OUR OFFICE GIVES CAREFUL CONSIDERATION TO DECISIONS OF THE COURT OF CLAIMS IN DETERMINING THE ACTION TO BE TAKEN AS TO CLAIMS PENDING BEFORE US FOR SETTLEMENT, SUCH DECISIONS ARE NOT BINDING UPON US IN SUBSEQUENT CASES. SEE 30 COMP. GEN. 73, 74.

FURTHERMORE, AS TO TRANSPORTATION OF PERSONS AND PROPERTY FOR OR ON BEHALF OF THE UNITED STATES PERFORMED SUBSEQUENT TO AUGUST 26, 1958, BY ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT, THE ACT OF AUGUST 26, 1958, 72 STAT. 860, 49 U.S.C.A. 66, PROVIDES FOR PAYMENT OF CARRIERS' BILLS PRIOR TO AUDIT BY OUR OFFICE BUT RESERVES TO THE UNITED STATES THE RIGHT TO DEDUCT OVERCHARGES FROM AMOUNTS SUBSEQUENTLY FOUND DUE THE CARRIER PROVIDED THAT "DEDUCTIONS SHALL BE MADE WITHIN THREE YEARS * * * FROM THE TIME OF PAYMENT OF BILLS," AND BARS CLAIMS FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THE SECTION UNLESS CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS FROM THE DATE OF CERTAIN EVENTS SUCH AS PAYMENT OF CHARGES FOR THE TRANSPORTATION OR REFUND OR DEDUCTION OF OVERCHARGES WHICHEVER IS LATER. SIMILAR PROVISIONS AS TO COURT ACTIONS ARE TO BE FOUND IN 49 U.S.C. 16 (3) (I). THUS, UNLESS THE OVERCHARGES ARE DEDUCTED WITHIN THE THREE-YEAR PERIOD THE GOVERNMENT'S RIGHT OF DEDUCTION APPARENTLY IS LOST. ALSO, UNLESS THE CARRIER FILES CLAIM IN OUR OFFICE OR THE COURTS WITHIN THE THREE-YEAR PERIOD ITS RIGHTS ARE BARRED. SUCH PROVISIONS ARE JURISDICTIONAL AND STATUTORY, AND IT DOES NOT APPEAR THE PARTIES CAN LENGTHEN SUCH PERIODS BY AGREEMENT. THEREFORE, IN ORDER TO PROTECT THE INTEREST OF THE GOVERNMENT AND TO DISCHARGE OUR RESPONSIBILITY UNDER THE STATUTE, WE MUST CONTINUE TO EFFECT COLLECTION WITHIN THE STATUTORY PERIOD OF AMOUNTS WE CONSIDER TO HAVE BEEN OVERCHARGED. ALSO, THE CARRIERS IN ORDER TO HAVE THEIR CLAIMS CONSIDERED MUST FILE CLAIM HERE OR IN COURT WITHIN THE THREE YEAR PERIOD.

ACCORDINGLY, WE MUST DECLINE TO ENTER INTO SUCH AN ARRANGEMENT AS CONTEMPLATED BY YOUR LETTER. HOWEVER, WE WOULD HAVE NO OBJECTION TO YOUR FILING TIMELY CLAIMS HERE (SUPPLEMENTAL BILLS) IDENTIFYING THE TRANSACTIONS INVOLVED, FOR THE AMOUNTS ASSERTED TO BE DUE ON SUCH ISSUE--- AND WHICH CLAIMS UNDER OUR CURRENT VIEW WOULD BE FOR DISALLOWANCE--- WITH A REQUEST THAT WE WITHHOLD SETTLEMENT ACTION THEREON PENDING FINAL JUDICIAL DETERMINATION OF THE ISSUE IN THE REFERRED TO SUITS SO THAT THE COURT'S DECISION AND REASONING (IF A DECISION ON THE MERITS OF THE ISSUE IS RENDERED) MAY BE CONSIDERED IN THE DISPOSITION OF THE CLAIMS. ALSO, AS TO CLAIMS NOW ALREADY ON FILE HERE BUT AS TO WHICH NO SETTLEMENT ACTION HAS BEEN TAKEN, WE WILL HONOR SIMILAR REQUESTS IDENTIFYING YOUR SUPPLEMENTAL BILLS. AS TO NOTICES OF OVERCHARGE, FORMS 1003, ISSUED ON SUCH ISSUE, FOR THE REASONS EXPLAINED ABOVE, WE WILL BE UNABLE TO DEFER COLLECTION ACTION.

IF YOU DO NOT FEEL THE PROCEDURES OUTLINED IN THE PRECEDING PARAGRAPH ADEQUATELY PROTECT YOUR INTERESTS, YOU ARE, OF COURSE, FREE TO FILE A COURT ACTION UPON RECEIPT OF NOTICE OF WHICH WE WILL SUSPEND ANY FURTHER SETTLEMENT ACTION AS TO THE ITEMS IN SUIT.