- 40 -
It is true that we are not bound to follow United States v.
Vellalos, supra. The majority, however, attempts to distinguish
it by noting that, in Vellalos, the Government was "unable to
invoke section 6901 because it missed the limitations period
prescribed by subsection (c). Therefore, it relied on State
foreclosure proceedings as a means for collection." Majority op.
p. 24. The majority explains that it is not clear whether the
District Court in Vellalos would have reached its same conclusion
had the Government proceeded timely under section 6901, which is
the case here. I disagree. The District Court in Vellalos was
explicit in holding that
The Tenth Amendment to the United States
Constitution provides:
3(...continued)
whether, in substance, a temporal limitation should be treated as
a temporally limited right. See, e.g., Fairbanks-Morse & Co. v.
Alaska Palladium Co., 32 F.2d 233, 234 (9th Cir. 1929) (quoting
Partee v. St. Louis & S.F.R. Co., 204 F. 970, 972 (8th Cir.
1913)):
A statute which in itself creates a new liability,
gives an action to enforce it unknown to the common
law, and fixes the time within which that action may be
commenced, is not a statute of limitations. It is a
statute of creation, and the commencement of the action
within the time it fixes is an indispensable condition
of the liability and of the action which it permits.
Such a statute is an offer of an action on condition
that it be commenced within the specified time. If the
offer is not accepted in the only way in which it can
be accepted, by the commencement of the action within
the specified time, the action and the right of action
no longer exist, and the defendant is exempt from
liability.
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