Opposition Brief — Boyd v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-506

DoyLe A. BoyD, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners argue that the United States’ claim for

restitution of the costs incurred in the removal of their

sunken barge was barred by the statute of limitations.

In approximately July 1967, the Barge CB-482 sank in

the Cumberland River near Nashville, Tennessee.' The

Army Corps of Engineers first became aware of the sunken

barge in 1968 and, finding that it constituted a hazard to

navigation, took steps to determine its ownership for the

purpose of having it removed. The Corps of Engineers

found that the barge apparently was owned by petitioner

Boyd, and advised him by letter of December 5, 1968,

that he must remove the barge pursuant to the Rivers

'Petitioners assert that “the record in this cause establishes that

the barge sank prior to July of 1966 * * * ” (Pet. 4). However, the

district court found that the sinking occurred in “approximately

July, 1967" (Pet. App. II, p. 11).

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and Harbors Act of 1899, 30 Stat. 1121, 33 U.S.C. 401

et seq. Four more letters were subsequently sent to Boyd

requesting removal of the barge; Boyd responded as late

as June 3, 1970, with promises that the barge would be

removed (Pet. App. III, p. 18).

In July 1970, the Corps of Engineers determined CB-

482 had not been raised and initiated bidding procedures

to have the barge removed. The contract for removal was

awarded to the lowest bidder who completed the removal

on May 21, 1971, and was paid on June 21, 1971. On

December 18, 1972, the United States initiated this action

against Boyd to recover the costs of removing the barge.

The complaint was amended on April 16, 1973, to name

petitioner Caldwell & Son as a co-defendant (id. at 18-19).?

After trial, the district court entered judgment in the

amount of $14,046 in favor of the United States (Pet. App.

Il, pp. 9-16). The court of appeals affirmed (Pet. App. III,

pp. 17-22). Petitioners seek certiorari solely to review the

question whether this action was barred by the statute of

limitations.

1. Petitioners argue that the courts below erred in

ruling that the statute of limitations began to run from the

date that the United States expended funds to raise the

barge (June 21, 1971). Petitioners contend that the limi-

tations period began to run “when the plaintiff knew, or

with the exercise of reasonable diligence should have

discovered his cause of action” (Pet. 3). But petitioners

misconceive the nature of the United States’ cause of

action. The United States has a right to recover monies

expended for removal of wrecks under Section 19 of the

Rivers and Harbors Act, 30 Stat. 1154, 33 U.S.C. 414.

Wyandotte Transportation Co. v. United States, 389 U.S.

191, 204. This cause of action, which is in the nature of

restitution, does not arise until the actual expenditure of

2In answering interrogatories posed by the United States. Boyd

claimed for the first time that he had purchased the barge for his

employer, H.W. Caldwell & Son, Inc. The United States therefore

amended its complaint to add Caldwell & Son as a co-defendant.

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funds. See ALI, Restatement of Restitution, §115 (1936).

Consequently, the United States’ cause of action first

accrued on June 21, 1971, the date the money was ex-

‘ pended, as both courts below correctly held. Since suit

was filed on December 18, 1972, the claim was brought

well within any applicable period of limitation. See 28

U.S.C. 2415.3

2. In any event, this suit was timely regardless whether

the statute runs from the sinking of the barge or from the

payment of money. For the purposes of statutes of limi-

tations, restitutionary actions are considered as contract

claims. ALI, Restatement, supra, §5(1)(b). The applicable

limitations period is six years on contract suits brought

by the United States. 28 U.S.C. 2415(a).4 Since the district

court found that the barge sank in approximately July 1967,

and both defendants were made party to the suit well

prior to July 1973, the action was timely.

_ It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

DECEMBER 1975.

‘There is no substance to petitioners’ suggestion (Pet. 4) that the

decisions below encourage the United States to wait extended

periods before removing sunken wrecks. As the court of appeals

correctly observed (Pet. App. Ill, p. 21). as a practical matter the

government is not likely to delay, because it is potentially liable to

l third parties who suffer damage as a result of sunken wrecks.

| 428 U.S.C. 2415(a) provides in part that “every action for money

i damages brought by the United States or an officer or agency

thereof which is founded upon any contract express or implied in

law or fact, shall be barred unless the complaint is filed within six

years after the right of action accrues * * * .”

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