Peter J. Bresson - Page 40

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               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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