No. 44381 | Ct. Cl. | May 1, 1944
Lead Opinion
delivered the opinion of the court:
Plaintiff sues under the Act of June 25, 1938,
Section 1 of the Act of June 25,1938, provides:
That jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and enter judgments against the United States upon the claims of contractors, including completing sureties and all subcontractors * * * whose contracts were entered into on or before August 10, 1933, for increased costs incurred as a result of the enactment of the National Industrial Recovery Act: Provided,, That * * * this section shall apply only to such contractors, including completing sureties and all subcontractors and materialmen, whose claims were presented within the limitation period defined in section 4 of the Act of June 16,1934 (41 U. S. C., secs. 28-33).
Sections 1 and 4 of the Act of June 16, 1934, 48 Stat. 974, 975, provide:
SectioN 1 * * * Any contractor, subcontractor, or completing surety desiring an adjustment and settlement with respect to any such contract under this Act for increased costs incurred after August 10,1933 * * * shall file with the department or administrativo establishment concerned a verified claim itemizing such additional costs * * *.
Section 4. No claim hereunder shall be considered or allowed unless presented within six months from the date of approval of this Act, or, at the option of the claimant, within six months after the completion of the contract, except in the discretion of the Comptroller General for good cause shown by the claimant.
Under these Acts we have jurisdiction only of such claims as ivere “presented Avithin the limitation period defined in
The only semblance of a claim filed by plaintiff within the six months was a letter reading, “ * * * it is our intention shortly to submit a claim for increased cost due to the N. R. A., in approximate amount of $4,000.”
This was merely notice of intention to do what the Act required; it did not constitute the filing of the claim. Mere notice of intention to do what the Act required cannot toll the statute. Werner v. United States, 86 F. (2d) 113; Waters, et al v. United States, 12 F. Supp. 658" court="W.D. Mich." date_filed="1933-05-24" href="https://app.midpage.ai/document/waters-v-united-states-7220796?utm_source=webapp" opinion_id="7220796">12 F. Supp. 658, 660.
But aside from this, the statute required that the claim to be filed should be verified and should itemize the additional cost claimed. The alleged claim which was filed within the six-month period was neither itemized nor verified. An itemized verified claim was filed about two years later, but the Comptroller General had not extended the time for filing it, and he was the only one authorized to do so. The 1934 Act forbade consideration of any claim which was not presented within six months or within such further time as the Comptroller General might allow. Douglas Aircraft Co. v. United States, 95 Ct. Cl. 745" court="Ct. Cl." date_filed="1941-12-01" href="https://app.midpage.ai/document/douglas-aircraft-co-v-united-states-8588883?utm_source=webapp" opinion_id="8588883">95 C. Cls. 745.
It is suggested that the defendant is estopped to plead the statute because the General Counsel of the Procurement Division led plaintiff to believe that the letter filed on October 23, 1935, was a sufficient compliance with the statute and that he might file his verified itemized schedules after the expiration of six months. This does not give rise to an estoppel because the defendant had not authorized this one of its agents to make any such statement, but, on the contrary, had said that only the Comptroller General had this power. This was said in the very Acts which create the right upon which plaintiff sues. Plaintiff knew, or should have known, that only the Comptroller General had the right to extend the time for filing the claim and, therefore, had no right to rely upon the statement of the General Counsel of the Procurement Division. Long ago it was held that persons dealing with the
In the case last cited a veteran wished to sue to recover on a War Eisk Insurance policy. The Assistant United States Attorney had told him that it was necessary only to serve the summons within the statutory period and that the complaint could be filed later. Eelying thereon, summons was served within time, but the complaint was not. The Supreme Court held that the District Attorney had no power to waive the statute of limitations, and dismissed the suit.
Since, admittedly, the required claim was not filed within the statutory period, and this period was not extended by the only one authorized to do so, we are of opinion that we are without jurisdiction, and that plaintiff’s petition must be dismissed. It is so ordered.
52 Stat. nor.
Dissenting Opinion
dissenting:
The defendant interposes two defenses to plaintiff’s claim. The first goes to the entire claim made and is that plaintiff is not entitled to maintain this suit to recover increased costs that may have been incurred as a result of the enactment of the National Industrial Eecovery Act for the alleged reason that plaintiff did not file a claim, as required by the act of June 25, 1938, within six months after completion on June 8,1935, of the prime contract between the United States and Henry Ericsson & Company, and for the further reason that no extension of time was granted.
Under the second defense defendant admits that if plaintiff is entitled to maintain the suit he is entitled to recover the amount of $84.20, increased material costs shown to have resulted from enactment of the National Industrial Eecovery Act.
Under the facts and circumstances established by the record I am of opinion that the claim for increased labor and material costs filed October 23, 1985, and later perfected, which claim was received and held under consideration by the proper and authorized officials of defendant without objection from the time it was presented until the trial of this case, was sufficient under the circumstances to entitle plaintiff to maintain this suit and to give this court jurisdiction under section 1 of the act of June 25, 1938. It appears from the evidence, about which there is no controversy,' that plaintiff’s representative and agent in Washington, L. K. McDorman, had several conferences prior and subsequent to October 8, 1935, with the authorized officials of the Procurement Division of the Treasury Department, which was the administrative establishment with which a claim under the act of June 16,1934, was required to be filed. On October 8, plaintiff, through his agent, wrote a letter addressed to the Assistant Director, Public Works Branch, Procurement Division, in which it was stated: “Please be advised that it is our intention to file a claim for increased cost due to N. E. A., for our subcontract with the Henry Ericsson Company, for construction of the U. S. Post Office, Columbus, Ohio.” The plaintiff’s purpose in filing this letter and the letter of October 25, with the Procurement Division after having conferred with the legal section of that division was to place himself on record as making a claim under the act of June 16, 1934,
The prime contract with the government was completed June 8,1935, and the six-months’ period mentioned in section 4 of the act of June 16, 1934, for presentation of a claim expired December 8, 1935, or one year, eight months, and twenty-six days before the above-mentioned letter of the chief counsel of the Procurement Division was written to plaintiff on September 4, 1937. It is obvious therefore that the Procurement Division, Treasury Department, in which the statute required the claim to be filed, considered that plaintiff’s letter of 'October 23, 1935, setting forth the claim in the approximate amount of $4,000, was sufficient to satisfy the requirements of the act of June 16, 1934, subject to completion by the later filing of the itemized schedules of the claim.
Upon receipt of the above-mentioned letter of September 4, 1937, from the chief counsel of the Procurement Division, plaintiff replied that all necessary papers and forms had been properly filled out by him and were in the hands of his agent in Washington and stated that it was his understanding that he had already filed the claim. Thereafter, on October 15, 1937, itemized schedules of the claim for increased costs were transmitted to the Procurement Division with a letter making reference to the previous letters between the parties, with the statement— “Please advise at an early date what further records will be necessary in support of this claim, as this office in Washington is acting as agent to the Claimant.” Upon receipt of these itemized schedules of the claim, the chief counsel of the Procurement Division wrote plaintiff on November 4, 1937, acknowledging receipt of the letter of October 15 and the documents therein listed regarding the claim for relief under the act of June 16,1934, and stating that “Consideration will be given your letter and its enclosures in connection with the claim.” The claim was thereafter held under consideration by the proper and the authorized officials of defendant without any further word to plaintiff concerning its timeliness or its sufficiency. No
In these circumstances, I think this suit should not be dismissed for lack of jurisdiction on the ground that plaintiff did not present a claim within the time allowed by section 4 of the act of June 16, 1934. Section 1 of that act provided that any contractor or subcontractor desiring an adjustment and settlement with respect to any such contract for increased costs incurred after August 10, 1933, “shall file with the department or administrative establishment concerned, a verified claim itemizing such additional cost.” This section did not fix the time within which the claim was to be filed. Section 4 of the act did specify the time within which a claim might be presented and declared that “No claim hereunder shall be considered or allowed unless presented within six months from the date of approval of this act, or, at the option of the claimant, within six months after the completion of the contract, except in the discretion of the Comptroller General for good cause shown by the claimant.” Under this provision of the statute it seems clear that a late presentation or filing of a claim, or the timely filing of a claim and late filing of itemized schedules of the claim, was not fatal if such a claim was received and considered without objection. The statute expressly conferred discretion with respect thereto upon the Comptroller General. The broad claim filed on October 23, 1935, on time, and the completed itemized schedules filed on October 15, 1937, remained under consideration without any objection for more than 7 months after the letter of the chief counsel of the Procurement Division of November 4, 1937, was written to plaintiff stating that consideration would be given to the enclosures in connection with the claim, and before the act of June 25, 1938, was enacted. The claim to which the chief counsel had reference was plaintiff’s letter of October 23, 1935, setting forth his claim in the approximate amount of $4,000, which letter was filed well within the six-months’ period allowed by section 4 for presenting a claim.
Counsel for defendant argues however that the letter of
Plaintiff supposed as a result of what had happened, as recited in the findings, that his claim was in and would receive consideration as the General Counsel of the Procurement Division told him it would, and as, under the circumstances, it doubtless would if the act of June 25, 1938, had not been enacted before the claim was finally considered and acted upon by the Procurement Division and the Comptroller. If the General Counsel of the Procurement Division, with whom under the 1934 act plaintiff was authorized and required to deal in the preliminary stages of making and presenting his claim, had, in October 1935, advised plaintiff that a complete itemized verified claim must be on file before the end of a six-months’ period, instead of advising that a claim for a definite amount filed within the six-months’ period would be sufficient and could be completed and perfected later, and if the General Counsel had, when he wrote the letter of inquiry of September 4, 1937, or the letter of November 4, 1937, after the itemized schedules, of the claim
In addition to what has been said above as to the sufficiency, under the circumstances, of the letter of October 23, 1935, and the schedules subsequently submitted, as a claim under the act of June 16,1934,1 am of opinion that we have jurisdiction under a fair and reasonable interpretation of all the provisions of the act of June 25, 1938, in the light of its intended liberal purposes to afford contractors an opportunity to have their claims considered and adjudicated in this court, even if it should be necessary to say that the broad claim filed October 23, 1935, which was intended to be later perfected by the necessary itemized schedules, was technically not the complete claim which sections 1 and 4 of the act of June 16,1934, contemplated should be filed within six months after passage of that act or after the completion of the contract, or at a later date in the discretion of the Comptroller
The defense interposed to our jurisdiction in this case is in effect that plaintiff was guilty of laches in failing to present, under the act of June 16, 1934, to the Procurement Division of the Treasury Department a complete itemized claim as described in section 1 of that act, and that since the Comptroller General did not reach the claim for consideration and decision before enactment of the act of June 25, 1938, and therefore did not exercise or have occasion to exercise the discretion conferred upon him by the 1934 act with reference to late presentation or as to the perfection and completion after expiration of six months of the broad claim presented in time, we are without authority under the ‘proviso of section 1 of the 1938 act to do other than to reject the claim and dismiss the petition notwithstanding the good faith of the Government officers concerned and the plaintiff in connection
It is a reasonable and fair interpretation of the proviso to section 1 of the 1938 act when considered in the light of section 3 of that act to say that in situations such as are disclosed by the peculiar facts in this case good cause existed for the failure of plaintiff strictly and literally to comply with the language of section one of the act of June 16,
Plaintiff incurred increased labor costs in the amount of $3,042.55. (Finding 5.) Plaintiff made his bid and entered into a contract with Ericsson as a result of that bid upon the basis of the hourly wage rates for plasterers, plasterer helpers, carpenters, and common labor as set forth in the findings, which wage rates were less than the wage rates which it was necessary for plaintiff to pay such mechanics and laborers as a result of the enactment of the National Industrial Kecovery Act, when he came to perform his contract. Plaintiff made his estimate in January 1933 of the labor costs and in preparing his bid for the subcontract plastering work, which he submitted to the prime contractor in February 1933, and upon the basis of which the contract with the prime contractor was subsequently entered into May 16, 1933, the wage rates at which he could then and subsequently. except for the enactment of the National Industrial Recovery Act and the issuance of the President’s Reemployment Agreement thereunder, obtain Union mechanics and Union and non-Union labor were 90 cents an hour for plasterers, 50 cents an hour for plasterers’ helpers (hod carriers), 05 cents an hour for carpenters, and 40 cents an hour for labor. These wages were later increased in August 1933 (finding 5). Defendant argues, however, that paragraph 5 of article 6 of plaintiff’s subcontract required him to employ Union labor and, in the end, he paid only the Union scale of wages. That is not decisive of the question presented here. Representatives of the labor Union who testified in the case admitted that at the time plaintiff made his bid and entered into the contract, and thereafter until the National Industrial Recovery Act was enacted, skilled and semi-skilled Union labor could be and was being employed in Columbus, Ohio, and vicinity, at hourly wage rates which were less than the
Before making his bid, plaintiff made an investigation among other contractors and among experienced plasterers, carpenters, and laborers, and based his bid as to labor costs upon the highest hourly wage rate within the range of wage rates which he found were being paid for such labor and for which he found, from inquiry among the men, they were willing to work.
Plaintiff signed the President’s Reemployment Agreement shortly after August 10, 1933. The Code of Fair Competition for the construction industry which was in effect during practically all the time that work was being done under plaintiff’s subcontract was approved January 31, 1934. A minor part of plaintiff’s subcontract work was performed from August 25,1933, to March 20,1934, but the main portion of the work was performed from April 1 to November 22,1934. In August 1933, about the time plaintiff signed the Reemployment Agreement, authorized representatives of the labor Unions in Columbus made demands upon plaintiff, as well as others, for payment of higher hourly wages than were then being paid, based on the purposes of the National Industrial Recovery Act and the statements of the President in Release #200 by the National Recovery Administration. These demands on behalf of labor became the subject of conferences between representatives of the employers and employees, including plaintiff, which resulted in agreements to increase wages over the then and previously existing wage rates, and at which it was admitted labor could be obtained at the time plaintiff made his bid and signed the subcontract with Ericsson. It was necessary for plaintiff to make the increase in wages which he paid, and the evidence shows and we have found as a fact that such increase in wages in the total amount of $3,042.55 was caused by and was the result of the enactment of the National Industrial Recovery Act. Plaintiff should therefore be given judgment for this amount.
I would enter judgment in favor of plaintiff for $8,126.75.