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B-124046, APR. 2, 1965, 44 COMP. GEN. 601

B-124046 Apr 02, 1965
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THE DETERMINATION OF THE LEGAL LIABILITY OF THE TORTFEASOR IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION. 1965: REFERENCE IS MADE TO LETTER OF JANUARY 26. THE QUESTIONS UPON WHICH DECISION IS REQUESTED AND A RELATED DISCUSSION ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 356. PROVIDES THAT IN ANY CASE IN WHICH THE UNITED STATES IS AUTHORIZED OR REQUIRED BY LAW TO FURNISH HOSPITAL. OR DENTAL CARE AND TREATMENT TO A PERSON WHO IS INJURED OR SUFFERS A DISEASE UNDER CIRCUMSTANCES CREATING A TORT LIABILITY UPON SOME THIRD PERSON TO PAY DAMAGES THEREFOR. "THE UNITED STATES SHALL HAVE A RIGHT TO RECOVER FROM SAID THIRD PERSON THE REASONABLE VALUE OF THE CARE AND TREATMENT SO FURNISHED OR TO BE FURNISHED" AND "SHALL.

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B-124046, APR. 2, 1965, 44 COMP. GEN. 601

MEDICAL TREATMENT - PUBLIC - PRIVATE PARTIES - COST RECOVERY FROM THIRD PARTY TORTFEASORS THE RIGHT OF THE UNITED STATES CREATED BY THE ACT OF SEPTEMBER 25, 1962, TO RECOVER FROM THIRD PARTY TORTFEASORS THE COST OF MEDICAL AND HOSPITAL CARE PROVIDED INJURED PERSONS MAY NOT BE THE SUBJECT OF AN ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS AND INVOLUNTARY ADMINISTRATIVE COLLECTION FROM GOVERNMENT EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES, THE ACT SILENT AS TO RECOVERY FROM THE CURRENT PAY OF A TORTFEASOR, PRESCRIBED A JUDICIAL REMEDY FOR DETERMINING LIABILITY AND ONLY AUTHORIZING THE GOVERNMENT TO INTERVENE OR JOIN IN AN ACTION BROUGHT BY THE INJURED PERSON, OR INDEPENDENTLY TO INSTITUTE SUIT AGAINST THE TORTFEASOR TO ENFORCE ITS RIGHT OF SUBROGATION OR ASSIGNMENT, OR BOTH, THE DETERMINATION OF THE LEGAL LIABILITY OF THE TORTFEASOR IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION, AND ABSENT THE ESSENTIAL MEANS OF THE ADMINISTRATIVE TRIBUNAL ESTABLISHED UNDER 37 U.S.C. 1007 (C) ARRIVING AT A JUST AND CORRECT DETERMINATION OF LIABILITY BETWEEN PRIVATE INDIVIDUALS IN PERSONAL INJURY CASES WHICH WOULD GUARANTEE DUE PROCESS OF LAW, THE PAY OF A MEMBER OF THE UNIFORMED SERVICE MAY NOT BE WITHHELD.

TO THE SECRETARY OF DEFENSE, APRIL 2, 1965:

REFERENCE IS MADE TO LETTER OF JANUARY 26, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER THE RIGHT OF THE UNITED STATES TO RECOVER MEDICAL COSTS FROM THIRD PARTY TORTFEASOR (SERVICE MEMBERS) UNDER THE ACT OF SEPTEMBER 25, 1962, PUBLIC LAW 87-693 (42 U.S.C. 2651) MAY BE THE SUBJECT OF AN "ADMINISTRATIVELY ASCERTAINED" INDEBTEDNESS AND INVOLUNTARILY RECOVERED FROM THE SERVICE MEMBER TORTFEASOR. THE QUESTIONS UPON WHICH DECISION IS REQUESTED AND A RELATED DISCUSSION ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 356.

THE ACT OF SEPTEMBER 25, 1962, PROVIDES THAT IN ANY CASE IN WHICH THE UNITED STATES IS AUTHORIZED OR REQUIRED BY LAW TO FURNISH HOSPITAL, MEDICAL, SURGICAL, OR DENTAL CARE AND TREATMENT TO A PERSON WHO IS INJURED OR SUFFERS A DISEASE UNDER CIRCUMSTANCES CREATING A TORT LIABILITY UPON SOME THIRD PERSON TO PAY DAMAGES THEREFOR,"THE UNITED STATES SHALL HAVE A RIGHT TO RECOVER FROM SAID THIRD PERSON THE REASONABLE VALUE OF THE CARE AND TREATMENT SO FURNISHED OR TO BE FURNISHED" AND "SHALL, AS TO THIS RIGHT BE SUBROGATED TO ANY RIGHT OF REPRESENTATIVES, TO PROVIDE THAT THE UNITED STATES SHALL HAVE A SPECIFIC INDEPENDENT RIGHT OF ACTION IN ITS OWN RIGHT TO RECOVER FROM A TREATMENT SO FURNISHED OR TO BE FURNISHED. THE STATUTE FURTHER PROVIDES THAT THE GOVERNMENT MAY ALSO REQUIRE THE INJURED OR DISEASED PERSON "TO ASSIGN HIS CLAIM OR CAUSE OF ACTION AGAINST THE THIRD PERSON TO THE EXTENT OF THAT RIGHT OR CLAIM.' TO ENFORCE SUCH RIGHT THE STATUTE AUTHORIZES THE UNITED STATES TO "INTERVENE OR JOIN IN ANY ACTION OR PROCEEDING BROUGHT BY THE INJURED OR DISEASED PERSON" AGAINST THE THIRD PERSON WHO IS LIABLE FOR THE INJURY OR DISEASE OR "IF SUCH ACTION OR PROCEEDING IS NOT COMMENCED" BY HIM WITHIN THE TIME THERE ESCRIBED,"INSTITUTE AND PROSECUTE LEGAL PROCEEDINGS AGAINST THE THIRD PERSON WHO IS LIABLE FOR THE INJURY OR DISEASE.'

THE NEED FOR LEGISLATION TO ENABLE THE UNITED STATES TO RECOVER FROM THIRD PARTY TORTFEASORS WAS ESTABLISHED IN UNITED STATES V. STANDARD OIL CO., 332 U.S. 301 (1947), WHERE THE UNITED STATES BROUGHT SUIT IN A FEDERAL DISTRICT COURT AGAINST THE OWNER AND DRIVER OF A TRUCK AS TORTFEASORS TO RECOVER THE AMOUNTS EXPENDED FOR HOSPITALIZATION AND THE PAY OF A SOLDIER IN THE ARMY INJURED THROUGH THE DRIVER'S NEGLIGENCE. THE SUPREME COURT, REGARDING THE GOVERNMENT SOLDIER RELATION DISTINCTLY AND EXCLUSIVELY A CREATURE OF FEDERAL LAW, THERE DECIDED THAT THE GOVERNMENT'S BASIC RIGHT TO BE INDEMNIFIED SHOULD BE GOVERNED BY FEDERAL LAW, EVEN THOUGH CONGRESS HAD NOT ACTED AFFIRMATIVELY CONCERNING THE SPECIFIC PROBLEM, AND THAT, IN THE ABSENCE OF LEGISLATION BY THE CONGRESS ON THE SUBJECT, THE UNITED STATES IS NOT ENTITLED TO RECOVER ON ITS CLAIM, SINCE IT REGARDED THE MATTER AS PRIMARILY ONE OF FISCAL POLICY AND THEREFORE A PROPER SUBJECT FOR CONGRESSIONAL ACTION RATHER THAN FOR THE EXERCISE OF ANY CREATIVE JUDICIAL POWER AS COMMON LAW RIGHT IN A FIELD PROPERLY WITHIN CONGRESS' CONTROL AS TO A MATTER ON WHICH CONGRESS HAD SEEN FIT TO TAKE NO ACTION.

AS ORIGINALLY INTRODUCED, THE BILL (H.R. 298, 87TH CONG.) WHICH BECAME PUBLIC LAW 87-693 PROVIDED SIMPLY THAT THE UNITED STATES "SHALL BE SUBROGATED TO ANY RIGHT OR CLAIM THAT THE INJURED OR DISEASED PERSON" HAS AGAINST THE THIRD PERSON TORTFEASOR AND REQUIRED ASSIGNMENT OF HIS CLAIM TO THE UNITED STATES. IN ORDER "TO ENFORCE SUCH RIGHT OF SUBROGATION OR ASSIGNMENT, OR BOTH," IT AUTHORIZED THE UNITED STATES TO INSTITUTE LEGAL PROCEEDINGS IN ITS OWN NAME OR IN THE NAME OF THE INJURED PERSON OR TO INTERVENE OR JOIN IN ANY ACTION OR PROCEEDING BROUGHT BY THE INJURED OR DISEASED PERSON. THE BILL WAS AMENDED BY THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, TO PROVIDE THAT THE UNITED STATES SHALL HAVE A SPECIFIC INDEPENDENT RIGHT OF ACTION INI ITS OWN RIGHT TO RECOVER FROM A TORTIOUSLY LIABLE THIRD PERSON THE REASONABLE VALUE OF THE HOSPITAL AND MEDICAL CARE AND TREATMENT FURNISHED TO THE INJURED OR DISEASED PERSON AND CONFORMING CHANGES IN LANGUAGE WERE MADE IN SUBSECTIONS 1 (B) AND 2 (B) WITH RESPECT TO ENFORCING ITS INDEPENDENT RIGHT OF RECOVERY. SEE H.REPT. NO. 1534, 87TH CONG., 2D SESS.,1-4, AND THE SUPREME COURT'S NOTE 5 TO ITS DECISION IN THE STANDARD OIL CO. CASE, 332 U.S. 301, 304.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

1. MAY THE RIGHT ON THE PART OF THE UNITED STATES TO RECOVER FOR MEDICAL COSTS FROM THIRD PARTY TORTFEASORS CREATED BY THE ACT OF 25 SEPTEMBER 1962 (76 STAT. 593; 42 U.S.C. 2651, ET SEQ.) BE THE SUBJECT OF AN ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS WITH INVOLUNTARY ADMINISTRATIVE COLLECTION FROM A SERVICE MEMBER TORTFEASOR?

2. IF THE ANSWER TO (1) IS IN THE AFFIRMATIVE, MAY A TORT OCCURRING PRIOR TO THE THIRD PARTY TORTFEASOR ENTERING THE SERVICE BECOME THE SUBJECT OF SUCH ADMINISTRATIVE COLLECTION PROCEDURES AFTER THE THIRD PARTY BECOMES A MEMBER?

3. IF THE ANSWER TO (1) OR (2) OR BOTH IS IN THE AFFIRMATIVE, MUST THE ADMINISTRATIVE PROCEDURES FOLLOWED IN ESTABLISHING THE ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS GIVE COGNIZANCE TO THE LAW OF THE SITE OF THE TORTIOUS ACT IN THE SAME MANNER THE RULES OF LAW WOULD BE APPLIED IN THE EVENT OF LEGAL ACTION?

4. IF THE ANSWER TO (3) IS IN THE NEGATIVE, MAY ADMINISTRATIVE COLLECTION ACTION BE TAKEN EVEN THOUGH LEGAL ACTION AGAINST THE TORTFEASOR IS UNSUCCESSFUL UNDER THE STATUTE?

5. IF ADMINISTRATIVE COLLECTION OF THE INDEBTEDNESS IS OTHERWISE AUTHORIZED, MAY THE UNITED STATES COMPROMISE OR WAIVE SUCH CLAIM FOR THE CONVENIENCE OF THE GOVERNMENT UNDER AUTHORITY OF 42 U.S.C. 2652 (B/?

IT APPEARS CLEAR FROM THE STANDARD OIL CO. DECISION THAT THE RIGHT OF THE UNITED STATES TO RECOVER FROM TORTIOUSLY LIABLE THIRD PERSONS THE COST OF MEDICAL AND HOSPITAL CARE PROVIDED BY THE UNITED STATES FOR THE INJURED PERSON DID NOT EXIST PRIOR TO THE ACT OF SEPTEMBER 25, 1962, AND THEREFORE ANY SUCH RIGHT AS NOW EXISTS IS DEPENDENT ENTIRELY UPON THAT ACT. THAT ACT CREATED A NEW RIGHT IN THE UNITED STATES TO RECOVER, BUT IN ESTABLISHING THE PROCEDURE TO ENFORCE THAT NEW RIGHT THE STATUTE SAYS NOTHING ABOUT RECOVERY BY THE UNITED STATES FROM THE CURRENT PAY OF A TORTFEASOR WHO MAY BE ONE OF ITS EMPLOYEES OR A MEMBER OF THE UNIFORMED SERVICES, NOR DOES IT SAY ANYTHING ABOUT THE PROCEDURE TO BE FOLLOWED OTHER THAN JUDICIAL PROCEEDINGS AIDED BY MEANS OF SUBROGATION OR ASSIGNMENT. IN ORDER TO ENFORCE ITS RIGHT THE STATUTE PROVIDES THAT THE UNITED STATES MAY (1) INTERVENE OR JOIN IN ANY ACTION OR PROCEEDING BROUGHT BY THE INJURED PERSON OR (2) INDEPENDENTLY INSTITUTE AND PROSECUTE LEGAL PROCEEDINGS AGAINST THE TORTFEASOR IF THE INJURED PERSON DOES NOT COMMENCE ANY ACTION OR PROCEEDINGS WITHIN THE TIME PRESCRIBED IN THE STATUTE. SUCH ACTION MAY BE BROUGHT EITHER ALONE IN ITS OWN NAME OR IN THE NAME OF THE INJURED PERSON OR IN CONJUNCTION WITH HIM.

THE DETERMINATION OF LEGAL LIABILITY IN PERSONAL INJURY CASES IS ESSENTIALLY A JUDICIAL RATHER THAN AN ADMINISTRATIVE FUNCTION. WHILE THE STATUTE CREATED A NEW INDEPENDENT RIGHT OF RECOVERY IN THE GOVERNMENT, WE SEE NOTHING IN THE STATUTE TO WARRANT A CONCLUSION THAT THE GOVERNMENT HAS GREATER RIGHTS THAN THE INJURED PERSON AND THAT IT CAN STEP BETWEEN THE TORTFEASOR AND THE INJURED PERSON AND RECOVER FROM THE TORTFEASOR BY MEANS OF A PROCEDURE (ADMINISTRATIVE INVOLUNTARY COLLECTION) AVAILABLE EXCLUSIVELY TO THE GOVERNMENT. IT IS OUR VIEW THAT IF THE CONGRESS HAD INTENDED THAT THE GOVERNMENT SHOULD BE ABLE TO EFFECT RECOVERY AGAINST THE WILL OF THE PERSON CONCERNED THROUGH A PURELY ADMINISTRATIVE PROCEEDING WITHOUT A JUDICIAL DETERMINATION OF LIABILITY IT WOULD HAVE SAID SO AND THAT THE CONCLUSION THAT THE CONGRESS HAD SO INTENDED HERE IS WARRANTED ONLY IF THE LANGUAGE OF THE STATUTE CLEARLY INDICATES SUCH AN INTENT. THE STATUTE IS SILENT IN THAT RESPECT AND THE ONLY REMEDY INDICATED IN THE STATUTE IS A JUDICIAL ONE. AS TO SUCH REMEDY, IT IS STATED ON PAGE 3 OF H.REPT. NO. 1534 THAT "THIS SUBSECTION (1 (B) ( SETS FORTH THE PROCEDURE TO BE FOLLOWED BY THE GOVERNMENT IN ASSERTING ITS RIGHTS.'

NOT ONLY HAVE NO SAFEGUARDS BEEN ESTABLISHED FOR AVOIDING INJUSTICES IN AN ADMINISTRATIVE DETERMINATION OF LIABILITY AS BETWEEN PRIVATE INDIVIDUALS IN PERSONAL INJURY CASES, BUT THE ESSENTIAL MEANS OF ARRIVING AT A JUST AND CORRECT DETERMINATION--- THE RIGHT TO SUBPOENA AND COMPEL THE TESTIMONY UNDER OATH OF PERSONS UNCONNECTED WITH THE GOVERNMENT AS WITNESSES OR THE PRODUCTION OF OTHER COMPETENT EVIDENCE, THE RIGHT TO BE REPRESENTED BY LEGAL COUNSEL OF ONE'S OWN CHOOSING AND TO CROSS EXAMINE ADVERSE WITNESSES, FOR EXAMPLE--- HAVE NOT BEEN PROVIDED BY LAW IN ADMINISTRATIVE PROCEEDINGS UNDER 37 U.S.C. 1007 (C). COMPARE, FOR EXAMPLE, THE PROVISIONS OF ARTICLE 139 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 939, PROVIDING THE NECESSARY POWERS TO OBTAIN THE EVIDENCE REQUISITE FOR A PROPER DETERMINATION OF THE LIABILITY OF MILITARY PERSONNEL FOR DAMAGE TO OR WRONGFUL TAKING OF PRIVATE PROPERTY. IT DOES NOT APPEAR THAT AN ADMINISTRATIVE TRIBUNAL ESTABLISHED UNDER 37 U.S.C. 1007 (C) IS EQUIPPED TO OBTAIN THE NECESSARY EVIDENCE UNDER CONDITIONS WHICH WOULD GUARANTEE DUE PROCESS OF LAW IN MAKING A DETERMINATION OF LIABILITY IN PERSONAL INJURY CASES AND IT IS BELIEVED THAT A DETERMINATION OF INDEBTEDNESS UNDER SUCH STATUTORY PROVISIONS SHOULD HAVE NO GREATER LEGAL SIGNIFICANCE IF IT IS BASED ON A FINDING OF LIABILITY UNDER THE PROCEDURE PRESCRIBED IN ARMY REGULATION 25-110, JUNE 25, 1964, IMPLEMENTING PUBLIC LAW 87-693. ALTHOUGH SUCH REGULATIONS REQUIRE THE GIVING OF NOTICE TO THE PROSPECTIVE DEFENDANT, SUCH PROCEDURE SEEMS LARGELY EX PARTE IN CHARACTER SINCE THERE IS NO PROVISION FOR THE SUBMISSION OF EVIDENCE BY SUCH DEFENDANT OR FOR THE HOLDING OF A HEARING OF ANY KIND PRIOR TO A DETERMINATION OF LIABILITY.

WHERE CONGRESS HAS INTENDED THAT CURRENT PAY BE LIABLE TO INVOLUNTARY WITHHOLDING BY THE GOVERNMENT, IT HAS PROVIDED SPECIFIC STATUTORY AUTHORITY FOR THAT PURPOSE. SEE, FOR EXAMPLE, THE ACT OF MAY 26, 1936, CH. 452, 49 STAT. 1374, AS AMENDED, 5 U.S.C. 46B, WHICH AUTHORIZES WITHHOLDING FROM THE PAY OF GOVERNMENT PERSONNEL THE AMOUNT OF ANY PAYMENT, CREDIT FOR WHICH HAS BEEN DISALLOWED IN THE ACCOUNT OF ANY DISBURSING OR CERTIFYING OFFICER, AND THE ACT OF JULY 15, 1954, CH. 509, 68 STAT. 482, 5 U.S.C. 46D, WHICH AUTHORIZES SUCH WITHHOLDING ON ACCOUNT OF ERRONEOUS PAYMENTS OF COMPENSATION RECEIVED BY MILITARY AND CIVILIAN PERSONNEL OF THE GOVERNMENT.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE CONGRESS DID NOT INTEND THAT A DETERMINATION OF LIABILITY OR OF INDEBTEDNESS FOR PERSONAL INJURY SHOULD BE MADE ADMINISTRATIVELY UNDER THE PROVISIONS OF 37 U.S.C. 1007 (C), WHICH COULD PLACE A MEMBER IN THE POSITION WHERE THE ONLY WAY HE COULD COLLECT HIS CURRENT COMPENSATION WOULD BE BY RESORTING TO LITIGATION AGAINST THE GOVERNMENT.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE. IN VIEW OF THAT ANSWER, NO ANSWER TO QUESTION 2 OR 3 IS REQUIRED AND QUESTION 4 IS ANSWERED IN THE NEGATIVE. AS UNDERSTOOD BY US, QUESTION 5 ASSUMES AN AFFIRMATIVE ANSWER TO QUESTION 1. SINCE THAT QUESTION IS ANSWERED IN THE NEGATIVE, QUESTION 5 REQUIRES NO ANSWER.

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