B-120002, OCTOBER 13, 1954, 34 COMP. GEN. 170

B-120002: Oct 13, 1954

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1954: REFERENCE IS MADE TO OFFICE LETTER DATED JULY 6. WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OR CERTIFYING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED OR A CHARGE RAISED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. OR INDEPENDENT ESTABLISHMENT (INCLUDING CORPORATIONS) UNDER WHICH SUCH PAYEE IS ENTITLED TO RECEIVE COMPENSATION: * * * AS SET FORTH IN OFFICE LETTER OF JULY 6. THE QUESTION WAS RAISED BY THE VETERANS ADMINISTRATION WHICH REPORTED THAN AN ERRONEOUS PAYMENT OF $160 WAS MADE TO JAMES BELL. THE VETERANS ADMINISTRATION STATED THAT A CHARGE WAS RAISED FOR THE AMOUNT BY CERTIFICATE OF SETTLEMENT OF THE ACCOUNT OF THE CERTIFYING OFFICER INVOLVED.

B-120002, OCTOBER 13, 1954, 34 COMP. GEN. 170

COMPENSATION - WITHHOLDING - EMPLOYEE INDEBTEDNESS - ACT OF JULY 15, 1954 UNDER THE ACT OF AUGUST 3, 1950, WHICH PROVIDES THAT WHERE CHARGE HAS BEEN RAISED AGAINST A DISBURSING OR CERTIFYING OFFICER FOR PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, OTHERWISE ENTITLED TO COMPENSATION FROM THE UNITED STATES OR FROM ANY AGENCY OR INSTRUMENTALITY THEREOF, A GOVERNMENT AGENCY REQUIRED TO WITHHOLD FROM AN EMPLOYEE'S SALARY AN ERRONEOUS PAYMENT MADE TO HIM BY ANOTHER AGENCY IRRESPECTIVE TO WHETHER THE EMPLOYING AGENCY HAS ISSUED REGULATIONS PURSUANT TO THE ACT. THE ACT OF JULY 15, 1954, WHICH PROVIDES FOR THE COLLECTION OF INDEBTEDNESS OF AN EMPLOYEE RESULTING FROM AN ERRONEOUS PAYMENT MADE BY THE DEPARTMENT, AGENCY OF INDEPENDENT ESTABLISHMENT, DOES NOT REPEAL THE ACT OF AUGUST 3, 1950, WHICH PROVIDES FOR DEDUCTIONS FROM THE CURRENT SALARY OF AN EMPLOYEE FOR REIMBURSEMENT OF INDEBTEDNESS TO THE UNITED STATES WHERE A CHARGE HAS BEEN RAISED IN THE ACCOUNT OF A DISBURSING OR CERTIFYING OFFICER.

ACTING COMPTROLLER GENERAL WEITZEL TO THE POSTMASTER GENERAL, OCTOBER 13, 1954:

REFERENCE IS MADE TO OFFICE LETTER DATED JULY 6, 1954, B-120002, TO YOU AND TO REPLY OF AUGUST 18, FROM THE SOLICITOR OF YOUR DEPARTMENT, RELATIVE TO WHETHER, UNDER PUBLIC LAW 633, APPROVED AUGUST 3, 1950, 64 STAT. 393, ONE GOVERNMENT AGENCY LEGALLY MAY WITHHOLD FROM AN EMPLOYEE'S SALARY AN ERRONEOUS PAYMENT MADE TO HIM BY ANOTHER GOVERNMENT AGENCY WHERE A CHARGE HAS BEEN RAISED AGAINST THE OFFICER WHO CERTIFIED THE PAYMENT, IRRESPECTIVE OF WHETHER THE EMPLOYING AGENCY HAS ISSUED A REGULATION PURSUANT TO THE LAW.

PUBLIC LAW 633 AMENDED THE ACT OF MAY 26, 1936, 49 STAT. 1374, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

HEREAFTER, WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OR CERTIFYING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED OR A CHARGE RAISED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, OTHERWISE ENTITLED TO COMPENSATION FROM THE UNITED STATES OR FROM ANY AGENCY, OR INSTRUMENTALITY THEREOF, SUCH COMPENSATION OF THE PAYEE SHALL BE WITHHELD, IN PART OR IN WHOLE, UNTIL FULL REIMBURSEMENT HAS BEEN ACCOMPLISHED UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT ESTABLISHMENT (INCLUDING CORPORATIONS) UNDER WHICH SUCH PAYEE IS ENTITLED TO RECEIVE COMPENSATION: * * *

AS SET FORTH IN OFFICE LETTER OF JULY 6, TO YOU, THE QUESTION WAS RAISED BY THE VETERANS ADMINISTRATION WHICH REPORTED THAN AN ERRONEOUS PAYMENT OF $160 WAS MADE TO JAMES BELL, AN EMPLOYEE IN THE POST OFFICE AT JACKSONVILLE, FLORIDA. THE VETERANS ADMINISTRATION STATED THAT A CHARGE WAS RAISED FOR THE AMOUNT BY CERTIFICATE OF SETTLEMENT OF THE ACCOUNT OF THE CERTIFYING OFFICER INVOLVED. UPON PROPER PRESENTATION OF THE MATTER TO THE POSTMASTER AT JACKSONVILLE, FOR THE PURPOSE OF HAVING COLLECTION EFFECTED UNDER THE ABOVE ACT, THE POSTMASTER DECLINED TO MAKE DEDUCTIONS FROM THE EMPLOYEE'S CURRENT SALARY. THE DECLINATION WAS PREDICATED UPON HIS ALLEGED LACK OF AUTHORITY--- IN THE ABSENCE OF DEPARTMENTAL REGULATIONS ISSUED PURSUANT TO THE ACT--- TO MAKE SUCH DEDUCTIONS EXCEPT IN THOSE CASES WHERE AN EMPLOYEE IS INDEBTED TO THE POST OFFICE DEPARTMENT DIRECTLY, OR WHERE THE EMPLOYEE GIVES HIS CONSENT.

IN OFFICE LETTER OF JULY 6, TO YOU, THE VIEW WAS EXPRESSED THAT THE PROVISIONS OF PUBLIC LAW 633 APPEAR TO REQUIRE THE EMPLOYING AGENCY TO WITHHOLD THE AMOUNT OF THE OVERPAYMENT AND THAT THE REGULATIONS MENTIONED IN THE ACT ARE INTENDED ONLY TO PERMIT ADMINISTRATIVE FLEXIBILITY AS TO HOW THE SALARY SHOULD BE WITHHELD, THAT IS, IN A LUMP SUM OR BY INSTALLMENTS. IN HIS REPLY OF AUGUST 18, THE SOLICITOR OF YOUR DEPARTMENT STATES THAT HIS OFFICE WOULD AGREE WITH THIS CONSTRUCTION OF PUBLIC LAW 633 IF PUBLIC LAW 497, APPROVED JULY 15, 1954, 68 STAT. 482, HAS NOT SUPERSEDED PUBLIC LAW 633. PUBLIC LAW 497 PROVIDES, IN SUBSTANCE, THAT WHEN IT IS DETERMINED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, OR ONE OF THEIR DESIGNEES, THAT AN EMPLOYEE OF THE UNITED STATES AS A RESULT OF "ANY ERRONEOUS PAYMENT MADE BY THE DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT CONCERNED," THE AMOUNT OF INDEBTEDNESS MAY BE COLLECTED BY DEDUCTION IN REASONABLE AMOUNTS FROM THE CURRENT PAY OF SUCH PERSON. THE SOLICITOR POINTS OUT THAT THE WORDING OF PUBLIC LAW 497 INDICATES THAT SALARY MAY BE WITHHELD BY THE EMPLOYING AGENCY ONLY TO RECOVER AN OVERPAYMENT WHICH THE EMPLOYING AGENCY ITSELF HAS MADE TO THE EMPLOYEE. HE ALSO SUGGESTS THAT THE SAID LAW MAY HAVE BEEN INTENDED TO OCCUPY THE WHOLE FIELD AND THUS SUPERSEDE ALL PRIOR ACTS RELATING TO THE RECOVERY OF OVERPAYMENTS TO EMPLOYEES.

AS ORIGINALLY INTRODUCED S. 2357, 81ST CONGRESS, WHICH BECAME PUBLIC LAW 633, PROVIDED THAT THE COMPENSATION OF A PAYEE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT "MAY BE WITHHELD" UPON THE ALLOWANCE OF CREDIT OR THE RAISING OF A CHARGE FOR AN IMPROPER PAYMENT TO ANY PERSON. SUCH LANGUAGE HOWEVER WAS AMENDED TO PROVIDE THAT THE "COMPENSATION OF THE PAYEE SHALL BE WITHHELD.' THE EFFECT OF SUCH CHANGE IS TO REQUIRE RATHER THAN TO PERMIT THE WITHHOLDING FROM THE CURRENT COMPENSATION OF AN EMPLOYEE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT OF THE AMOUNT OF AN OVERPAYMENT TO HIM FOR WHICH CREDIT IS DISALLOWED OR CHARGE RAISED. THAT SUCH WITHHOLDINGS ARE MANDATORY APPEARS FURTHER TO BE BROUGHT OUT BY LETTER OF THE GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, DATED APRIL 14, 1950, INCLUDED IN THE SENATE CONGRESSIONAL RECORD, FOR JUNE 8, 1950, 96 CONG. REC. 8282, EXPLAINING CERTAIN TERMS IN AND THE EFFECT OF THE ACT. THAT STATEMENT IN PART IS AS FOLLOWS:

* * * ALSO, THE BILL CONTEMPLATES THAT COMPENSATION WILL BE WITHHELD ONLY WHERE THE OFFICER CERTIFYING SUCH COMPENSATION FOR PAYMENT OR THE OFFICER MAKING THE PAYMENT HAS ACTUAL KNOWLEDGE, OR HAS BEEN ADVISED, THAT CREDIT HAS BEEN DISALLOWED OR A CHARGE RAISED IN THE SETTLEMENT OF AN ACCOUNTABLE OFFICERS' RESPONSIBILITIES FOR AN APPARENTLY IMPROPER PAYMENT. THE BILL IS INTENDED AS AN ADDED SAFEGUARD TO THE UNITED STATES AND TO CERTIFYING AND DISBURSING OFFICERS GENERALLY, AND THERE IS NO INTENTION THAT CHARGES BE RAISED AGAINST ACCOUNTABLE OFFICERS FOR FAILURE TO WITHHOLD COMPENSATION UNLESS IT PLAINLY APPEARS THAT AT THE TIME OF MAKING SUCH PAYMENT OR CERTIFICATION THEY HAD ACTUAL KNOWLEDGE OF THE IMPROPER PAYMENT OF THE PAYEE AND THAT THIS OFFICE IN SETTLEMENT OF THE RESPONSIBILITY OF THE ACCOUNTABLE OFFICER CONCERNED HAD RAISED A CHARGE OR DISALLOWED CREDIT THEREFOR.

MANIFESTLY IF SUCH WITHHOLDINGS WERE NOT MANDATORY NO QUESTION COULD ARISE AS TO WHETHER THE PAYING OFFICER COULD BE HELD RESPONSIBLE FOR FAILURE TO MAKE THEM WHERE HE HAD KNOWLEDGE OF THE IMPROPER PAYMENT AND THAT THIS OFFICE HAD RAISED A CHARGE OR DISALLOWED CREDIT THEREFOR. ACCORDINGLY, THE MANDATORY FEATURES OF SUCH ACT MAY NOT AND SHOULD NOT BE DEFEATED BY THE FAILURE OF THE PARTICULAR DEPARTMENT TO ISSUE REGULATIONS THEREUNDER.

AS TO THE EFFECT OF PUBLIC LAW 497 ON PUBLIC LAW 633, IT IS A CARDINAL PRINCIPLE OF STATUTORY CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT FAVORED AND WHEN THERE ARE TWO ACTS ON THE SAME SUBJECT THE RULE IS TO GIVE EFFECT TO BOTH IF POSSIBLE. SEE 21 COMP. GEN. 322; 22 ID. 446. THE INTENTION OF THE LEGISLATURE TO REPEAL MUST BE CLEAR AND MANIFEST; IT IS NOT SUFFICIENT TO ESTABLISH THAT THE SUBSEQUENT LAW COVERS SOME OR EVEN ALL OF THE CASES PROVIDED FOR IN THE PRIOR ACT FOR THEY MAY BE CUMULATIVE OR AUXILIARY. THERE MUST BE A POSITIVE REPUGNANCY BETWEEN THE PROVISIONS OF THE NEW LAW AND THOSE OF THE OLD AND EVEN THEN THE OLD LAW IS REPEALED BY IMPLICATION ONLY TO THE EXTENT OF THE REPUGNANCY.

THERE IS OF COURSE NOTHING IN PUBLIC LAW 497 SPECIFICALLY REPEALING PUBLIC LAW 633. MOREOVER, THE FACT THAT THERE WERE OTHER ACTS AUTHORIZING OR REQUIRING WITHHOLDINGS OF CURRENT COMPENSATION IN PARTICULAR CIRCUMSTANCES IS FULLY BROUGHT OUT IN THE LEGISLATIVE REPORTS ON PUBLIC LAW 497, BUT NOTHING THEREIN INDICATES ANY INTENTION TO REPEAL SUCH EARLIER LAWS. FURTHERMORE, SUCH EARLIER ACTS WOULD AUTHORIZE OR REQUIRE WITHHOLDINGS IN CERTAIN SITUATIONS WHERE WITHHOLDINGS WOULD NOT BE PROPER UNDER PUBLIC LAW 497. THUS, NO WITHHOLDINGS UNDER THE LATTER ACT WOULD BE AUTHORIZED WHERE THE OVERPAYMENT AND COMPENSATION DID NOT ARISE IN THE SAME DEPARTMENT ( PARAGRAPH 3 (E), BUDGET CIRCULAR A-14 DATED SEPTEMBER 3, 1954), WHILE UNDER PUBLIC LAW 633 SUCH WITHHOLDINGS WOULD BE PROPER. CONVERSELY, IN SOME RESPECTS PUBLIC LAW 497 IS BROADER THAN PUBLIC LAW 633. FOR EXAMPLE, THE AUTHORITY GRANTED BY PUBLIC LAW 497 IS NOT DEPENDENT UPON ACTION BY THIS OFFICE IN THE ACCOUNTS OF A DISBURSING OR CERTIFYING OFFICER. ALSO, PUBLIC LAW 633 IS APPLICABLE ONLY TO PAYMENTS MADE TO PERSONS "IN THE EXECUTIVE BRANCH OF THE GOVERNMENT," WHEREAS PUBLIC LAW 497 IS NOT SO RESTRICTED. HENCE, IT APPEARS AMPLY CLEAR THAT PUBLIC LAW 633 WAS NOT REPEALED BY PUBLIC LAW 497 BUT THAT THEY ARE INTENDED TO COMPLEMENT AND BE AUXILIARY TO EACH OTHER AND BOTH MUST BE GIVEN EFFECT.

ACCORDINGLY, IT IS CONCLUDED THAT THE POST OFFICE DEPARTMENT IS AUTHORIZED TO WITHHOLD THE EMPLOYEE'S CURRENT COMPENSATION IN THE INSTANT CASE IF SUCH ACTION IS NECESSARY TO EFFECT COLLECTION OF HIS INDEBTEDNESS TO THE UNITED STATES.

ALSO, YOU MAY WISH TO GIVE CONSIDERATION TO ISSUING AN APPROPRIATE DEPARTMENTAL REGULATION ON THE SUBJECT FOR THE GUIDANCE OF EMPLOYEES OF YOU DEPARTMENT SHOULD SIMILAR REQUESTS FOR WITHHOLDING BE MADE.

A COPY OF THIS DECISION IS BEING FURNISHED TO THE ADMINISTRATOR OF VETERANS AFFAIRS.