The opinion of the court was delivered by: YOUNGDAHL
This case is before the Court on defendant's motion to dismiss or in the alternative for summary judgment on the ground that the suit is barred by the statute of limitations.
The material facts are not in dispute. On April 16, 1942, Eusebio K. Senope, a serviceman, was killed in action in the Philippines. His foster mother, the plaintiff here, filed a claim with the Veterans Administration on August 4, 1945, for $ 5,000 gratuitous life insurance deemed to have been issued to Senope by the National Service Life Insurance Act of 1940.
The claim was disallowed by the Veterans Administration on September 24, 1952. An appeal was taken to the Board of Veterans' Appeals which held a hearing, at which plaintiff and others testified, and then, on October 21, 1953, affirmed the disallowance because 'at the time of the veteran's death the claimant is not shown to have been dependent within the meaning of the applicable law and regulations.'
Plaintiff received notice of the Board's decision by mail on November 24, 1953, and during the next twenty months carried on an unsuccessful correspondence with the Veterans Administration for 'reconsideration', and 're-iteration' or 'reopening' of her case, the last letter being a reply from the Veterans Administration dated July 22, 1955.
On July 20, 1959, suit was filed in this court.
It is clear that this suit must be dismissed if it was not 'brought within six years after the right accrued for which the claim is made.'
Since 'the right accrued' at the time of the serviceman's death,
April 16, 1942, the suit is barred unless the war tolled the statute of limitations: if war tolls the statute of limitations, the suit is not barred since it was brought in July, 1959, which is less than six years after the October, 1953, decision of the Board of Veterans' Appeals;
on the other hand, if war does not toll the statute of limitations, then the suit is barred since a total of more than six years elapsed between
(a) April, 1942 (plaintiff's claim accrued) and August, 1945 (plaintiff filed her claim with the V.A.) and
(b) July, 1955 (last communication from the V.A.) and July, 1959 (suit filed).
It can be seen from this formulation that the doctrine of 'continuing negotiations', assuming its applicability, arguendo, is of no aid to the plaintiff since more than six years elapsed over the two periods in (a) and (b) above and period (b) begins when the assumed 'continuing negotiations' ended. It is therefore unnecessary to examine the correspondence between the plaintiff and the Veterans Administration over the twenty-one-month period between October, 1953, and July, 1955, to ascertain whether there actually was 'continuing negotiations' and thus a tolling of the statute of limitations during that period.
In Soriano, a resident of the Philippines brought suit in the Court of Claims to recover just compensation for property requisitioned from him by Philippine guerrilla forces during the Japanese occupation of the Philippine Islands. The Court held that the Court of Claims lacked jurisdiction because the claim had not been filed within the six-year period provided by statute.
To reach this result, it was necessary for the Court to hold that the war did not toll this limitation period. The Court reasoned from the inclusion of express provision for the tolling by war of the limitations period in other statutes
and the failure of Congress to include such a provision in the statute before the Court that Congress intended not to have that statute tolled by war. Inclusio unius est exclusio alterius. The Court then forcefully stated:
'And this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied. (citing United States v. Sherwood, 312 U.S. 584, 590-591 (61 S. Ct. 767, 85 L. Ed. 1058) (1941)).' 352 U.S. at page 276, 77 S. Ct. at page 273.
In Prado Del Castillo v. United States, 9 Cir., 1959, 272 F.2d 326, Judge Orr, in an enlightening opinion holding that World War II did not toll § 784(b), pointed out that in 1948, by the Act of March 3, 1948, c. 90, 62 Stat. 59, Congress extended from five to seven years the period for filing claims with the Veterans Administration, yet did not extend the six-year period during which relief could be sought in the courts.
'The purpose of Congress in extending the time for filing claims was to assist persons in the position of appellant who had been residents of the Philippines during World War II and thus prevented from filing claims for National Service Life Insurance payments because of the Japanese occupation of the islands. See Senate Report No. 902, 1948, U.S. Code Cong. Serv. p. 1121. Their situation was considered by committees of both houses of Congress and the Veterans' Administration and their reports disclose a sympathetic consideration of the plight of such persons. The sole relief recommended, however, was an extension of the time to file claims with the Administration. The time limitation in which to invoke the jurisdiction of the district courts to review denial of claims by the administrative body was not extended.' 272 F.2d at page 329. And see De Yaranon v. United States, D.C.D.C.1957, 152 F.Supp. 644.
Since this suit was brought more than six years from the time the claim accrued, the Court is without jurisdiction. The defendant's ...