B-124770, SEP. 16, 1955

B-124770: Sep 16, 1955

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JR.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 28. THE RECORD SHOWS THAT THE DEPENDENCY ALLOTMENT WAS LAST CHARGED TO YOUR NAVY PAY ACCOUNT FOR THE MONTH OF JANUARY 1947. IN YOUR LETTER YOU INDICATE THAT THE GOVERNMENT WAS GUILTY OF LACHES IN THAT DEMAND WAS NOT MADE FOR REPAYMENT OF THE AMOUNT IN QUESTION UNTIL FOUR YEARS AFTER THE ERRONEOUS PAYMENTS OCCURRED. THAT CONSEQUENTLY YOU FEEL YOU HAVE A GOOD DEFENSE IN EQUITY AGAINST THE GOVERNMENT. IT IS OBSERVED THAT IN THE TWO OPINIONS OF THAT OFFICIAL THE FACTS OF THE CASES INDICATED THAT THE INDIVIDUALS RECEIVED NO BENEFIT BY REASON OF THE ERRONEOUS PAYMENTS. THAT FACTOR IS NOT APPARENT IN YOUR CASE SINCE IT APPEARS THAT YOU WERE LIVING WITH YOUR WIFE AT THE TIME OF PAYMENT AND UNDOUBTEDLY RECEIVED THE BENEFIT OF THE MONEY.

B-124770, SEP. 16, 1955

TO MR. WILLIAM P. O. CLARKE, JR.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1955, RELATIVE TO TWO ERRONEOUS PAYMENTS OF ALLOTMENT IN THE TOTAL AMOUNT OF $400 MADE TO YOUR DEPENDENT INCIDENT TO YOUR NAVAL SERVICE.

THE RECORD SHOWS THAT THE DEPENDENCY ALLOTMENT WAS LAST CHARGED TO YOUR NAVY PAY ACCOUNT FOR THE MONTH OF JANUARY 1947, BUT THAT NEVERTHELESS YOUR DEPENDENT CONTINUED TO RECEIVE THE ALLOTMENT CHECKS THROUGH MARCH 1947. IN YOUR LETTER YOU INDICATE THAT THE GOVERNMENT WAS GUILTY OF LACHES IN THAT DEMAND WAS NOT MADE FOR REPAYMENT OF THE AMOUNT IN QUESTION UNTIL FOUR YEARS AFTER THE ERRONEOUS PAYMENTS OCCURRED, AND THAT CONSEQUENTLY YOU FEEL YOU HAVE A GOOD DEFENSE IN EQUITY AGAINST THE GOVERNMENT. SUPPORT OF YOUR POSITION YOU CITE TWO OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY (CMO 1-1948-4; CMO 10-1949-263) AND THE CASE OF WALKER V. UNITED STATES, 139 F. 408.

AT THE OUTSET IT MAY BE STATED THAT THE CITED OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY WOULD NOT BE BINDING ON THIS OFFICE. HOWEVER, IT IS OBSERVED THAT IN THE TWO OPINIONS OF THAT OFFICIAL THE FACTS OF THE CASES INDICATED THAT THE INDIVIDUALS RECEIVED NO BENEFIT BY REASON OF THE ERRONEOUS PAYMENTS. THAT FACTOR IS NOT APPARENT IN YOUR CASE SINCE IT APPEARS THAT YOU WERE LIVING WITH YOUR WIFE AT THE TIME OF PAYMENT AND UNDOUBTEDLY RECEIVED THE BENEFIT OF THE MONEY.

IT IS WELL SETTLED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY, AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES, ET AL. V. DISTRICT OF COLUMBIA, 22 C.CLS. 366, AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL CO., 11 F.2D 24, AND, ALSO, IN 63 A.L.R. 1346. FURTHERMORE, WHILE THE RECORD SUGGESTS NEGLIGENCE SOMEWHERE WITHIN THE GOVERNMENT IN THE DISBURSEMENT OF THE PAYMENTS, IT CONSISTENTLY HAS BEEN HELD THAT IF A BENEFIT IS BESTOWED THROUGH MISTAKE, NO MATTER HOW CARELESS OR INEXCUSABLE THE ACT OF THE BESTOWER MAY HAVE BEEN, THE RECIPIENT MUST MAKE RESTITUTION. CF. UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST CO. OF MINNEAPOLIS, 35 F.SUPP. 484, 486.

CONCERNING THE CASE OF WALKER V. UNITED STATES, 139 F. 409, REFERRED TO IN YOUR LETTER, THE COURT IN ITS OPINION CONCEDED THAT ORDINARILY THE RIGHT OF THE UNITED STATES TO RECOVER MONEY ILLEGALLY PAID OUT CANNOT BE DEFEATED BY THE MERE LACHES OF ITS AGENTS; THAT THE UNITED STATES IS NOT SUBJECT TO ANY STATUTE OF LIMITATIONS; AND THAT THE UNAUTHORIZED ACTS OF ITS AGENTS NEVER BIND THE SOVEREIGN. HOWEVER, THE COURT WENT ON TO HOLD THAT THE UNITED STATES WAS ESTOPPED FROM RECOVERING FEES ERRONEOUSLY PAID TO A UNITED STATES MARSHAL WHO HAD RENDERED ACCOUNTS FOR SUCH FEES WHICH FOR THE MOST PART HAD BEEN PAID OVER TO HIS DEPUTIES. THE ACCOUNTS OF THE MARSHAL HAD BEEN AUDITED BY THE GOVERNMENT AND IT WAS NOT UNTIL SIX YEARS AFTER HIS APPOINTMENT TERMINATED THAT ANY ATTEMPT WAS MADE TO RECOVER THE FEES, AT WHICH TIME HE WAS PRECLUDED FROM PROCEEDING AGAINST HIS DEPUTIES BY THE STATUTE OF LIMITATION. IT WAS POINTED OUT BY THE COURT THAT THE FEES WERE TREATED AS VALID BY THE ACCOUNTING OFFICERS AND THE CONGRESS UNTIL THE SUPREME COURT OF THE UNITED STATES HELD OTHERWISE IN THE CASE OF UNITED STATES V. TANNER, 147 U.S. 661. IN FURTHER REGARD TO LACHES NOT BEING A DEFENSE TO ACTIONS OF THE UNITED STATES FOR RECOVERY OF ERRONEOUS PAYMENTS, SEE 30 C.J.S. 114, AND THE COURT CASES CITED THEREIN.

THERE IS NO SHOWING THAT YOU OR YOUR WIFE WERE PLACED IN A DIFFERENT POSITION BY REASON OF THE ERRONEOUS PAYMENTS OR THE FAILURE OF THE GOVERNMENT TO PROMPTLY REQUEST REFUND THEREOF SO AS TO JUSTIFY AN EQUITABLE DEFENSE SIMILAR TO THAT PERMITTED IN THE WALKER CASE. MOREOVER, EVEN IF IT SHOULD BE DETERMINED THAT YOU ARE NOT PERSONALLY LIABLE FOR THE ERRONEOUS PAYMENTS THERE WOULD BE NO BAR TO THE GOVERNMENT INSTITUTING PROCEEDINGS TO COLLECT THE AMOUNT FROM YOUR WIFE.

IT IS BELIEVED THE FOREGOING ADEQUATELY ANSWERS THE POINTS RAISED BY YOU AND IT IS REQUESTED THAT A CHECK OR MONEY ORDERS FOR THE AMOUNT OF THE INDEBTEDNESS BE DRAWN TO THE ORDER OF THE "U.S. GENERAL ACCOUNTING OFFICE," AND MAILED TO THE DEBT SECTION, CLAIMS DIVISION, OF OUR OFFICE, 441 G. STREET, N.W., WASHINGTON 25, D.C., WITHOUT FURTHER DELAY.