B-192917.OM, L/M, MAR 6, 1980

B-192917.OM, L/M, MAR 6, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HEREWITH IS THE FILE RELATIVE TO THE CLAIM OF GOLDIE KING FOR PAYMENT FOR THE TAKING OF .6 ACRES OF HER LAND IN CLEBURNE COUNTY, ARKANSAS.

THE U. S. BUILT A ROADWAY ACROSS CLAIMANT'S LAND IN 1965. THE CLAIMANT, A NON-RESIDENT OF THE STATE OF ARKANSAS, DID NOT FILE HER CLAIM UNTIL 10 YEARS AFTER THE COMPLETION OF THE ROADWAY.

DOUBT EXISTS AS TO WHETHER OUR OFFICE MAY CONSIDER THE CLAIM DUE TO THE PROVISIONS OF VARIOUS STATUTES OF LIMITATION, INCLUDING AN ARKANSAS STATUTE OF LIMITATIONS FOR RECOVERY OF LAND OF 7 YEARS.

ACCORDINGLY, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTION.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. ACCORDING TO THE ARMY CORPS OF ENGINEERS, THE UNITED STATES BUILT A ROADWAY ACROSS MS. KING'S LAND IN 1965 WITHOUT CONDEMNING OR OTHERWISE ACQUIRING IT. THE CLAIMANT FILED HER CLAIM WITH THE CORPS APPROXIMATELY 10 YEARS AFTER THE COMPLETION OF THE ROADWAY. SHE SEEKS $1,000 IN DAMAGES UNDER THE THEORY OF INVERSE CONDEMNATION, A REMEDY AVAILABLE TO ONE WHOSE LAND HAS BEEN TAKEN BY THE UNITED STATES WITHOUT FORMAL CONDEMNATION IN VIOLATION OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. SUCH ACTIONS ARE COGNIZABLE UNDER THE TUCKER ACT, 28 U.S.C. SEC. 1346(A)(2) (1976). ACCORDING TO THE CORPS, RECOVERY WOULD BE ALLOWED BUT FOR THE APPLICABLE STATUTE OF LIMITATIONS. YOU ASK WHETHER THIS OFFICE IS BARRED FROM CONSIDERING THIS CLAIM.

THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION INDEPENDENT OF GAO TO CONSIDER CERTAIN CLAIMS IF THE SUIT IS FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. SEC. 1346(A)(2), 1491, 2801, AND 2501 (1976).

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. SEC. 71A (1976) PROVIDED IN PERTINENT PART THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (GAO) (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUES, OR IT IS FOREVER BARRED. THE PERIOD WAS REDUCED TO 6 YEARS BY THE ACT OF JANUARY 2, 1975, PUB. L. NO. 93-604, 88 STAT. 1965. (31 U.S.C. SEC. 71A (1976)).

MS. KING'S CAUSE OF ACTION ACCRUED AND THE STATUTE OF LIMITATIONS BEGAN TO RUN WHEN HER LAND WAS TAKEN FOR THE ROAD. IT MAKES NO DIFFERENCE THAT SHE WAS A RESIDENT OF ANOTHER STATE. THE TAKING WAS OPEN AND NOTORIOUS AND NOT CONCEALED FROM THE LANDOWNER. THEREFORE, THE STATUTE OF LIMITATIONS RUNS FROM THE TIME OF THE TAKING AND NOT WHEN SHE ACTUALLY LEARNED OF THE INJURY.

MRS. KING'S CLAIM WAS NOT RECEIVED IN THIS OFFICE UNTIL DECEMBER 31, 1975, MORE THAN 10 YEARS AFTER HER CAUSE OF ACTION AROSE AND THEREFORE UNDER 31 U.S.C. SEC. 71A, HER ACTION IS BARRED BY THE STATUTE OF LIMITATIONS FROM BEING CONSIDERED BY THIS OFFICE. GAO DOES NOT HAVE THE AUTHORITY TO WAIVE ANY OF THE PROVISIONS OF THE ACT OR TO MAKE EXCEPTIONS TO THE TIME LIMITATIONS IMPOSED. SEE MATTER OF JOHN B. MOORE, B-187427, JUNE 3, 1977; B-187084, OCTOBER 22, 1976; B-190841, FEBRUARY 15, 1978; AND B-171774, JULY 2, 1971.