# Marcos v. United States

> United States Court of Claims · July 15, 1952 · 106 F. Supp. 172

URL: https://www.frixlaw.com/law-library/cases/8716402

## Case

- **Full name:** MARCOS v. UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** July 15, 1952
- **Citations:** 106 F. Supp. 172; 122 Ct. Cl. 641
- **Precedential status:** Published
- **Opinion:** Dissent by Whitaker
- **Judges:** Howell, Whitaker
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Compania Maritima v. United States, 145 F. Supp. 935 (1956).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8716402

## Opinion text

WHITAKER, Judge
(dissenting).
The distinction which the majority attempts to make between a so-called war disability and a legal disability is to me a distinction without a difference. The law, to wit, the Trading With The Enemy Act, prohibited plaintiff from suing. If this is not a legal disability, I do not know how you could have one.
The law prohibits an insane person to sue, it prohibits a minor to sue, etc., because they are supposed to be incompetent to act intelligently. Plaintiff here was prohibited by law to act at all; but it is by law that all of them are disabled to sue.
In my former dissent in this case, I was. under the impression that this suit was. brought when section 262 of Title 28 U.S.C. (1946 Ed.) 36 Stat. 1139 , was in effect. I now find I was then in error; but even under that statute I thought a person denied access to the courts because of war should not have a longer period within which to-.bring his suit than a person under one of the-disabilities enumerated in that statute.
Now I find that section 2501 of revised' Title 28 (1948 Ed.) was,in effect when this, suit was brought. Section 2501 does not enumerate the disabilities which permit a person to sue within three years after the-disability is removed, whether or not this is longer than six years after the cause of action accrued, but it says that “a person under legal disability” may sue within three, years after the disability ceases.
*180 I have no doubt that under this section plaintiff had only three years after the disability was removed within which he might have brought his suit, if the six-year limitation had expired before.
That plaintiff <was under a “legal disability” is easily demonstrable. Section 3(a) of the Trading With The Enemy Act, 40 Stat. 411 , 50 U.S.C.A.Appendix, § 1 et seq., prohibits a person in enemy territory “to trade” with anyone in the United States. The act contained a prohibition forbidding any person in the United States to “complete, or perform any contract, agreement, or obligation,” and “to have any form of business or commercial communication or intercourse” with a person in enemy-occupied territory.
The inhabitants of the Philippine Islands became alien enemies under the Trading With The Enemy Act on December 8, 1941. Section 2 of the Trading With The Enemy Act defines an “enemy” as:
“(a) Any individual * * * resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war * * *.”
The courts have construed this to include even citizens of the United States who were resident within enemy territory. Salvoni v. Pilson, 86 U.S.App.D.C. 227 , 181 F.2d 615 , certiorari denied, 339 U.S. 981 , 70 S.Ct. 1030 , 94 L.Ed. 1385 ; United States v. Krepper, 3 Cir., 159 F.2d 958 , certiorari denied 330 U.S. 824 , 67 S.Ct. 865 , 91 L.Ed. 1275 .
Plaintiff’s cause of action arose after December 8, 1941. Not until the Philippine Islands were liberated from Japanese control was plaintiff able to sue because of the legal disability imposed upon him by the Trading With The Enemy Act.
Plaintiff’s case, therefore, it seems to me, comes necessarily within the provision of section 2501 which permits him to file his petition “within three years after the disability ceases.” Plaintiff’s petition was filed long after this three-year period and, therefore, was barred by the statute.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8716402. Public record. Not legal advice.