American Const. Co. v. United States, 48992.

• Decision Date: 07 October 1952
• Docket Number: No. 48992.,48992.
• Parties: AMERICAN CONST. CO. v. UNITED STATES.
• Court: U.S. Claims Court

107 F. Supp. 858

123 Ct. Cl. 408

AMERICAN CONST. CO. v. UNITED STATES.

No. 48992.

United States Court of Claims.

October 7, 1952.

William R. Brown, Houston, Tex., J. Ross Gamble, Washington, D. C., and Baker, Botts, Andrews & Parish, Houston, Tex., on the briefs, for plaintiff.

William A. Stern, II, Washington, D. C., Holmes Baldridge, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

JONES, Chief Judge.

Plaintiff's claim arises under the Lucas Act, 60 Stat. 902, as amended, 62 Stat. 992, 41 U.S.C.A. § 106 note. Plaintiff suffered net losses without fault or negligence on its part under Government contracts to furnish work, supplies, and services, between September 16, 1940, and August 14, 1945, and asserts that it is therefore entitled to relief from such losses under the Lucas Act, supra.

The first question to be considered is whether plaintiff's petition was filed in the Court of Claims within the statutory period allowed for appeal from the decision of the War Contract Hardship Claims Board, to which plaintiff's claim had been presented. Section 6 of the Lucas Act, supra, provides:

"Whenever any claimant under this Act is dissatisfied with the action of a department or agency of the Government in either granting or denying his claim, such claimant shall have the right within six months to file a petition with the Court of Claims * * *."

The Board denied plaintiff's claim in a decision dated June 24, 1948. The Recorder of the Board on July 16, 1948, signed a letter transmitting that decision to plaintiff. The letter was not mailed by the Board, however, until July 21, 1948, when it was registered in the departmental post office in the Pentagon, and it was not actually received by plaintiff until its delivery in the regular course of the mails in Houston, Texas, on July 24, 1948. Plaintiff had no notice of the Board's decision prior to that date. Plaintiff's petition was filed in the Court of Claims on January 24, 1949, on the last day of the six-month period after receipt of the letter of notification.

Defendant contends that the six-month limitation on filing an appeal from the Board's decision began to run, and ran continuously, from June 24, 1948, the date the decision was signed by the members of the Board, or in any event no later than July 21, 1948, when the letter of notification was mailed to plaintiff. If defendant's contention is correct plaintiff's petition is out of time and must be dismissed.

Plaintiff contends that its suit is timely because the very earliest date from which the six-month period for appeal could run was July 24, 1948, when plaintiff received notice of denial of its claim.

We have carefully considered the arguments and authorities advanced by defendant. We have concluded, however, that the six-month period for appeal under the Lucas Act should be computed from July 24, 1948, the date plaintiff received notice of the Board's action.

In reaching this conclusion we have considered a number of cases arising under the War Risk Insurance Act, 38 U.S.C.A. § 445, in which a similar problem was presented. That act provided for a suspension of the statute of limitations from the time of filing a claim thereunder with the Veterans Bureau, until the claim was denied by that agency. In determining the timeliness of appeal to the courts from such denial the question arose as to whether the statute of limitations should be computed from the date of the decision by the agency, or from the date of receipt of notice thereof by a claimant.

The various federal circuit courts of appeals and district courts were not unanimous in their holdings. Despite suggested distinctions, see Amodio v. RFC, Em.App., 191 F.2d 862, 864, the conflict was fundamentally one of statutory interpretation. Illustrative of the divergence of opinion among the federal courts are United States v. Walker, 5 Cir., 1935, 77 F.2d 415, certiorari denied 296 U.S. 612, 56 S.Ct. 132, 80 L.Ed. 434; United States v. Tarrer, 5 Cir., 1935, 77 F.2d 423 certiorari denied 296 U.S. 574, 56 S.Ct. 125, 80 L.Ed. 405; United States v. Lockwood, 5 Cir., 1936, 81 F.2d 468; United States v. Green, 6 Cir., 1936, 84 F.2d 449; United States v. Craig, 7 Cir., 1936, 83 F.2d 361, 365 (rehearing); Baraby v. United States, D.C.Mont.1932, 1 F.Supp. 443; Creasy v. United States, D.C.Va.1933, 4 F.Supp. 175; and Albek v. United States, D.C.N.Y.1933, 4 F.Supp. 1020, all of which state that the period of limitations began to run only with the receipt by the claimant of notice of the disposition of his claim; and contra, Tyson v. United States, 4 Cir., 1935, 76 F.2d 533; Stallman v. United States, 8 Cir., 1933, 67 F.2d 675; United States v. Thomson, 10 Cir., 1934, 71 F.2d 860; Corn v. United States, 10 Cir., 1934, 74 F.2d 438; Harrop v. United States, D.C. Neb.1935, 10 F.Supp. 753; and Hunnewell v. United States, D.C.N.H.1933, 2 F.Supp. 389, which state that the period of limitations began to run either on the date the claim was acted upon, or on the date of mailing of notice thereof. Expressly in accord with the latter group of cases is Amodio v. RFC, supra, decided by the Emergency Court of Appeals in 1951, arising under the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 924(a), which holds that under that act the time for appeal was to be computed from the date of mailing of notice of denial of protest of orders issued thereunder. At least two other cases under the War Risk Insurance Act each have been cited on both sides of the question, United States v. Gower, 10 Cir., 1934, 71 F.2d 366, cited in Tyson and Craig, both supra, and Weaver v. United States, 4 Cir., 1934, 72 F.2d 20 cited in Walker and Corn, both supra. See also United States v. Pastell, 4 Cir., 1937, 91 F.2d 575, 112 A.L.R. 1130.

The decision of the Fourth Circuit in Tyson v. United States, supra, was appealed to the Supreme Court, 297 U.S. 121, 56 S.Ct. 390, 80 L.Ed. 520, and there affirmed on other grounds, the Court expressly refraining from passing on the question here under consideration. Thereafter the WRIA was amended to effect a substantial change in the formula for computation of the period of appeal, obviating further dispute on this point. Robinson v. United States, 5 Cir., 84 F.2d 885.

The language of the statute of limitations contained in the Lucas Act, supra, supports defendant's contention here even less than that of the WRIA, under which there was such a conflict of opinion. Thus even if the WRIA cases were unanimous in holding that limitations began to apply no later than date of mailing of notice, those cases would not be conclusive as to the interpretation of the Lucas Act. But not even unanimity under the WRIA is available to support defendant's contention.

Further, to the extent that the problem raised under the WRIA is relevant, we are more persuaded by the reasoning of the Walker, Green, and Craig, etc., line of cases than by those to which the circuit court opinion in Tyson belongs.

Until the Board had taken final action plaintiff as a matter of law could not have filed suit in this court. Richardson v. United States, 86 F.Supp. 1019, 114 Ct. Cl. 695, 701. Until plaintiff knew the nature of that final administrative action it did not know whether it would be necessary or advisable to appeal. Section 6 of the Lucas Act clearly contemplates that a claimant shall have a full six months in which to appeal. There is no showing that notice on July 24, 1948, was received otherwise than in the due course of the mails. Cf. Stallman v. United States, supra. "It was certainly never intended that claimants should, either in person or by representatives, attend upon the Board and await its disposition of their claims." United States v. Green, supra, 84 F.2d at page 450. Nothing in the Lucas Act required the Board to act within a given period of time, from which plaintiff would be chargeable with notice that the Board's decision was rendered on a particular day.

Common sense argues against a rule which would deprive a claimant of any part of his six-month period for appeal prior to the time he received actual or constructive notice that there was a decision from which to appeal. And in the absence of statutory language requiring such a construction it would be an unwarranted infringement of his rights under Section 6 to gratuitously adopt such a rule.

Defendant has relied to some extent upon United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 285, 75 L.Ed. 598, for the proposition that the statute of limitations under the Lucas Act was not tolled until receipt by plaintiff of notice of the Board's action, but that plaintiff had the burden of ascertaining the nature of such action and was charged with notice from the date thereof.

The applicable statute in the Michel case, in directing the Commissioner of Internal Revenue to notify a taxpayer by mail "`within 90 days after * * * disallowance'" of a claim for refund of taxes, thus expressly differentiated between "disallowance" and notification thereof. The Supreme Court held that the statute required computation of the period of limitations from the date of the administrative action upon the claim rather than from the date of notice. No such differentiation is made in the Lucas Act.

Furthermore, in Michel the plaintiff was not required to wait until disallowance of his claim by the Commissioner before filing suit. He could sue after the expiration of six months from the date of filing his claim with the Commissioner, even if the latter had not yet acted. The plaintiff actually waited over three years longer, and then sought to claim the advantage of an alternative provision permitting suit within two years after disallowance of his claim by the Commissioner. Plaintiff argued unsuccessfully that the failure of the Commissioner to give notice of his action, as directed by the statute, extended the period within which plaintiff might file suit....