DocketNumber: No. 459-78
Citation Numbers: 220 Ct. Cl. 616
Judges: Davis, Friedman, Kashiwa
Filed Date: 4/6/1979
Status: Precedential
Modified Date: 11/23/2022
On April 6, 1979 the court entered the following order:
Plaintiff, appearing pro se, alleges in his petition that he served in the Navy from April 1943 to December 1945 (being honorably discharged on December 16, 1945); that
Defendant moves to dismiss the petition as long barred by the six-year statute of limitations, 28 U.S.C. §2501. The contention is that the claim accrued during President Roosevelt’s administration which ended in 1945. We cannot, however, accept this position because the petition, on its face, alleges in effect that the Navy agreed to set up a type of lifetime savings account for plaintiff, from which plaintiff could draw on request, and that no refusal to pay out the money was made until 1978. (The petition here was filed on October 20, 1978). On this bare motion to dismiss it is our duty to take the petition at face value, and it is settled that in the alleged circumstances limitations does not begin to run until demand is made and payment is refused. See Nyhus v. Travel Management Corp., 466 F.2d 440, 452-54 (D.C. Cir. 1972); 54 C.J.S. §§ 145, 147, 159; see Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217, 225 (1964).
Defendant has not moved for summary judgment on the ground that no such agreement was ever made by the Navy (or that if made it was invalid or unauthorized) or that no such award was ever made to plaintiff but in view of the very unusual nature of the claim we shall, sua sponte, order plaintiff to file an amended petition giving in detail the alleged circumstances of the award and agreement. In the circumstances of this case a much more detailed petition is necessary to comply with Rules 35(a) and 35(d) of our Rules.
it is therefore ordered that defendant’s motion to dismiss (on the ground of limitations) is denied but that plaintiff is directed to file, within thirty (30) days of the
IT IS SO ORDERED.
On April 12, 1979 plaintiff filed an amended petition, and on May 15, 1979 the court allowed defendant’s motion to suspend proceedings.