339 Dissenting Opinion by Judge Madden section is final and conclusive on all officers of the United States. This is not a grant of a narrow and grudging jurisdiction. It intended not only to do justice to servicemen but to make it unnecessary for them to bring their grievances to Congress for special legislation. It intended to give the Secretaries something approaching the wide discretion which Congress itself had to remedy injustices. In the case of the soldier, referred to above, his pay could not be raised from the improper amount paid him by mistake of fact or law to the proper amount, without changing some figures on the payroll. It is hard to see why that is not a correction of his record. The fact that the correction is simple and easy to make, when the mistake of fact or law has been corrected, certainly does not undermine the jurisdiction of the Correction Board. The opinion of the Assistant Comptroller General, quoted above, suggests some annoyance on the part of his office at the fact that officers like the plaintiffs are escaping the rigors of the statutes of limitations. The statute applicable to this court is six years. We have no reason to be annoyed because a claimant whose claim is eight years old and who could not get relief here can get relief from the Comptroller General. That is simply because Congress, in its wisdom, has seen fit to give that official a ten-year statute of limitations. In the same way, Congress has given the Secretaries the authority, up to October 31, 1961, to correct injustices. The fact that this court, and the Comptroller General, do not have so much leeway is irrelevant. The Assistant Comptroller General's opinion of September 11, 1959, quoted above, seems to have been rendered in disregard of the representations which the Comptroller General's spokesman had made to the Committee of the House of Representatives, when the Committee was working out the text of the Act. The testimony of Mr. John T. Burns, now Associate General Counsel of the General Accounting Office, appears on pages 379-381 of the hearings before the sub-committee of the House Committee on Armed Services on H.R. 1181, 82d Cong., 1st Sess. Dissenting Opinion by Judge Madden 152 Ct. CI. Mr. DOYLE. Therefore what you wish to do is to have the General Accounting Office reserve in the bill and be the final authority as to whether the actual audit is cor rect as to amount. Mr. BURNS. That is right. Mr. DOYLE. Not to go into the merit of the correction of the record or even the creation of a record? Mr. BURNS. That is right. Mr. DOYLE. I can see some merit in having a duplicate check as to the accuracy of the computations as between the Department and the General Accounting Office, but I certainly would not want to see Congress turn over the responsibility of administration and determination and correction of records to a Department and give them jurisdiction because the Congress did not want to bother with it any more, like it did under the other Tort Claims Act, and then have another Department go in and question the correctness of the procedure, and all that sort of thing. It would be in order if the Department were merely acting as an accounting office. (p. 380) Mr. BURNS. Sir, when the statute vests a discretion in the head of the Army, Navy, or Air Force to make a certain kind of determination and that obviously involves the exercise of a discretion, the Comptroller General is certainly not going to arrogate to himself the exercise of that discretion. That is the point I want to make, that where the statute vests in some officer of the Government the authority to make a determination, he should exercise it. Mr. DOYLE. May I ask you to do an unusual thing? You have given us the arguments against the bill as it stands and the arguments for permitting the General Accounting Office to do this audit. What are the arguments against permitting the General Accounting Office to do this audit? (p. 381) Mr. BURNS. I suppose in the back of the Department's minds there is some fear that the General Accounting Office will, under their jurisdiction to audit and make determinations of law with respect to the legality of payments, seek to encroach upon the jurisdiction of the Departments to make these corrections of records. In other words, there possibly is a fear by the Department that after they see fit to make certain corrections the General Accounting Office will look at the thing and say, "Congress never thought you would make any such correction as this. This is obviously "haywire and we just won't pay off, in a case like that." 339 Dissenting Opinion by Judge Madden I suppose that is what the Department had in mind. (p. 381). (Italics supplied). In his colloquy with Representative Hess, Mr. Baier of the Department of Defense expressed his fears that the Comptroller General would attempt to review the authority of the Secretary of the Navy. He was assured that this would not happen. (Hearings, supra, p. 391) Mr. HESS. As I understand the gentleman who testified here a few moments ago, they do not propose to pass on the merits of the case. They intend to leave that to the Department. But they do want to pass on the accounting end of it. Have you objections to that? Mr. BAIER. No, sir; not if they stick to accounting or arithmetic, but a lot of their decisions do not stick to arithmetic and they go into the legality, into the merits. They can go back and say this case was without jurisdiction. The Secretary of the Navy has appointed the Board and they determine as a quasi-judicial body what cases shall come into them and we do not want them to attack the legality of the Board's action or the Secretary of the Navy. (Italics supplied). Mr. Hess. I understand they do not propose to do it. In House Report No. 449, 82d Cong., 1st Sess., on H.R. 1181, May 15, 1951, the Committee says: During the course of the hearings, it developed that the Comptroller General felt that the question of jurisdiction of the Boards for the Correction of Military Records, and the legality of such award, should be within his purview, in addition to the normal responsibility to audit such payments. The committee takes the position that, the Congress having established Boards for the Correction of Military Records within each of the service departments, the jurisdiction of such Boards as well as the authority to determine the merits of each particular case should be reserved to such Boards, to the exclusion of the Comptroller General. This will not disturb the normal auditing authority of the Comptroller General. (Italics supplied). In the cases before us, the Comptroller General has done exactly what his representative has said he would not do, and what the Committee said he was not to have the power to do. He has refused to permit the Navy to pay concededly just debts to servicemen, and has placed his Syllabus 152 Ct. Cl. refusal upon the ground that the Secretary's Correction Board did not have jurisdiction to decide the case. He has no authority to determine the Correction Board's jurisdiction. The Comptroller General, by his September 11, 1959 ruling, unless corrected by this court, will require these plaintiffs and other officers similarly situated to go to Congress for relief. The maximum of annoyance to the officers, the Congress, and this court will have been achieved. The maximum frustration of the purpose of the Reorganization Act of 1946, the purpose of relieving Congress by authorizing the military services to correct their own errors, will have been achieved. And nothing whatever, of any conceivable use, will have been accomplished. Judge Durfee has authorized me to say that he agrees with the views which I have expressed. FAIRCHILD ENGINE AND AIRPLANE CORPORATION v. THE UNITED STATES [No. 524-59. Decided January 18, 1961] ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PETITION Patents; limitation of actions.-In an action by plaintiff to recover compensation for the alleged infringement of claims contained in two patents, the defendant has moved to dismiss that portion of the claim which is based on a patent which expired on June 18, 1952, more than six years prior to the filing of this suit. Plaintiff relies on section 286 of the Act of July 19, 1952, 66 Stat. 792, 813, 35 U.S.C. § 286, as tolling the limitation period during the time plaintiff's administrative claim for infringement was under submission. It is held that the 1952 patent statute contains express provisions for the tolling of the statute of limitations but the situation involving an expired patent is not among them and consequently the petition must be dismissed as to the expired patent. Patents; limitation of actions; Patent Act of July 19, 1952; operation and construction of statute.-Statutes normally operate prospectively unless otherwise expressly provided. Section 4(a) of the Patent Act of July 19, 1952, 66 Stat. 792, 815, is made retroactive in certain situations but those situations do not include the case of patents which expired prior to the effective 352 Opinion of the Court date of the act even where an administrative claim on the patent was filed and entertained after the effective date of the act. Patents 268 Walter H. Free for the plaintiff. James N. Buckner and Brumbaugh, Free, Graves & Donohue were on the briefs. William W. Fleming, with whom was Assistant Attorney General George Cochran Doub for the defendant. DURFEE, Judge, delivered the opinion of the court: This action, resulting from the alleged infringement of certain claims contained in two separate patents of which the plaintiff is assignee, was instituted on December 10, 1959, and the motion is to dismiss that portion of the claim which is based on United States Letters Patent Reissue No. 20,251 which expired on June 18, 1952. It is the position of the defendant that any infringement of this patent which might have occurred took place no later than the date of its expiration. That date is more than six years prior to the filing of the complaint and hence, the defendant says, under our six year statute of limitations, 28 U.S.C. § 2501, any claim based on that patent is barred. The plaintiff replies that the statute of limitations was tolled for the period during which an administrative claim for infringement was under submission (a period of about two years and five months) because of the provisions of new Title 35 U.S.C. § 286, which provides: Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action. In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referred to in the preceding paragraph. The defendant admits that the effect of section 286 of the Act is to extend the period for bringing suit by the length of time between the presentation of an administrative claim |