DocketNumber: No. 45858
Citation Numbers: 103 Ct. Cl. 747
Judges: Jones, Littleton, Maddest, Took, Whaley, Whitaker
Filed Date: 5/7/1945
Status: Precedential
Modified Date: 11/23/2022
delivered the opinion of the court:
In this suit recovery is sought for expenditures for travel, subsistence in lieu of per diem, and for per diem allowances in lieu of subsistence by a former employee of the United States Veterans Administration.
Herbert F. Wascher, for whose benefit this suit is brought and who for convenience will be referred to as “plaintiff,” was employed as a training assistant by the United States Veterans Administration (then known as the Veterans Bureau) at Chicago, Illinois, from September 20,1921, to and including August 21, 1928. During that period his duties required him to travel from the Chicago office to various points within the territory covered by that regional office of that Government Agency, for which some 158 travel orders were duly issued to him. These orders provided that while he was away from his station he would be paid the usual and necessary transportation expenses and expenses actually incurred for subsistence, not to exceed $5 a day. The travel regulations then in effect provided for a per diem allowance of $5 where the expenses incurred for subsistence were itemized, and an allowance of $4 a day without an itemization.
Plaintiff made the trips authorized by the travel orders, but submitted no claim for transportation or subsistence
The Government defends on the ground that the action was not timely instituted, and is now barred by the statute of limitations under Title 28, TJ. S. C. A., Section 262, which, provides so far as material as follows:
Every claim against the United States cognizable by the Court of Claims shall be forever barred unless the-petition setting forth a statement thereof is filed in the-court * * * within six years after the claim-first accrues. The claims of * * * insane persons- * * * shall not be barred if the petition be filed in, the court * * * within three years after the disability has ceased; * * *.
The defense as to the six-year period of limitations is, off course, good for the reason that all of the travel on account of which the claim accrued occurred prior to August 21,1923,. when plaintiff resigned from the Veterans’ Administration,, and the claim was first presented to that agency on Septem-i ber 9, 1931, some eight years after the claim accrued. Thai period of limitations had also run prior to the appointméiií in 1932 of a conservator for plaintiff. The only question-remaining is whether plaintiff is saved from that pro by reason of insanity during the period when the5 should have been filed.
While no brief was filed on behalf of plaintiff, it’isffi_0_ in the petition that “prior to the time that the;IJrfght/<t8-receive reimbursements for the said travel exphnl'e '^KiWi Jj aim! üQBjm
In reaching that conclusion, we are not unmindful of the moral claim which exists by reason of the fact that plaintiff made expenditures in the performance of his official duties for which, but for the statute of limitations, he is entitled to ^reimbursement. Difficulty in determining that exact amount ;now should not prevent a present determination of at least ■a part of the claim with a fair degree of accuracy for the .-reason that the minimum subsistence allowance of $4 a day
While plaintiff was negligent in presenting his claim, that negligence must be shared by the Veterans’ Administration, which was well aware that these trips were being made over a period of some eighteen months prior to his resignation without the submission of any travel vouchers for transportation and subsistence expenses. However, the bar of the statute of limitations having fallen, we have no alternative under the statute but to dismiss the petition.
Reimbursement of plaintiff rests solely in the discretion of the Congress.
It accordingly follows that the petition must be dismissed. It is so ordered.