B-135333, AUGUST 19, 1958, 38 COMP. GEN. 128

B-135333: Aug 19, 1958

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1958: WE HAVE GIVEN CAREFUL CONSIDERATION TO YOUR GENERAL COUNSEL'S REPLY OF JUNE 30. REGARDING THE PROPRIETY OF GRANTING RELIEF UNDER 5 U.S.C. 383 AND 384 TO POSTAL EMPLOYEES WHO HAVE RECEIVED EXCESSIVE OR OTHERWISE IMPROPER SALARY PAYMENTS. THE GENERAL RULE ORDINARILY APPLIED BY OUR OFFICE IS THAT IN THE ABSENCE OF A STATUTE SO PROVIDING NO OFFICER OR EMPLOYEE OF THE GOVERNMENT MAY WAIVE OR GIVE AWAY A VESTED RIGHT OF THE GOVERNMENT. WHICH PROVIDES FOR SETTLEMENT IN THE GENERAL ACCOUNTING OFFICE OF ALL CLAIMS AND DEMANDS IN WHICH THE GOVERNMENT IS CONCERNED EITHER AS DEBTOR OR CREDITOR. WHILE UNDER CERTAIN CIRCUMSTANCES WE HAVE AUTHORIZED DEPARTMENTS AND AGENCIES TO REMOVE FROM THEIR ACCOUNTING RECORDS SMALL DEBTS WHICH ADMINISTRATIVELY HAVE BEEN DETERMINED TO BE UNCOLLECTIBLE.

B-135333, AUGUST 19, 1958, 38 COMP. GEN. 128

POSTAL SERVICES - REMISSION OF FINES, ETC. - SALARY OVERPAYMENTS THE AUTHORITY GRANTED TO THE GENERAL ACCOUNTING OFFICE IN 5 U.S.C. 383 AND 384 WITH RESPECT TO THE REMISSION OF FINES, PENALTIES, FORFEITURES AND LIABILITIES IN RELATION TO THE POSTAL SERVICE MAY NOT BE REGARDED AS AUTHORITY TO RELIEVE POSTAL EMPLOYEES FROM LIABILITY ON ACCOUNT OF EXCESSIVE OR ERRONEOUS SALARY PAYMENTS IN THE ABSENCE OF AN EXPRESS STATUTORY GRANT OF RELIEF AUTHORITY OR UNEQUIVOCAL EVIDENCE OF A CONGRESSIONAL INTENT THAT THE GENERAL ACCOUNTING OFFICE EXERCISE AUTHORITY IN SUCH CASES. DECISIONS INDICATING A CONTRARY CONCLUSION OVERRULED.

TO THE POSTMASTER GENERAL, AUGUST 19, 1958:

WE HAVE GIVEN CAREFUL CONSIDERATION TO YOUR GENERAL COUNSEL'S REPLY OF JUNE 30, 1958, TO OUR LETTER OF APRIL 16, REGARDING THE PROPRIETY OF GRANTING RELIEF UNDER 5 U.S.C. 383 AND 384 TO POSTAL EMPLOYEES WHO HAVE RECEIVED EXCESSIVE OR OTHERWISE IMPROPER SALARY PAYMENTS.

PRIOR TO DISCUSSING OUR VIEWS CONCERNING THE SCOPE AND EFFECT OF 5 U.S.C. 383 AND 384, WE SHALL FIRST ATTEMPT TO REPLY TO SEVERAL INCIDENTAL MATTERS REFERRED TO IN THE LETTER OF YOUR GENERAL COUNSEL.

THE GENERAL RULE ORDINARILY APPLIED BY OUR OFFICE IS THAT IN THE ABSENCE OF A STATUTE SO PROVIDING NO OFFICER OR EMPLOYEE OF THE GOVERNMENT MAY WAIVE OR GIVE AWAY A VESTED RIGHT OF THE GOVERNMENT. IN THIS REGARD, WE DO NOT CONSTRUE EITHER 31 U.S.C. 71, WHICH PROVIDES FOR SETTLEMENT IN THE GENERAL ACCOUNTING OFFICE OF ALL CLAIMS AND DEMANDS IN WHICH THE GOVERNMENT IS CONCERNED EITHER AS DEBTOR OR CREDITOR, OR 31 U.S.C. 74, WHICH PROVIDES THAT BALANCES CERTIFIED BY THE GENERAL ACCOUNTING OFFICE AND DECISIONS OF THE COMPTROLLER GENERAL SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AS VESTING IN OUR OFFICE ANY EQUITABLE JURISDICTION OR ANY GENERAL AUTHORITY TO WAIVE COLLECTION OF AMOUNT DUE THE UNITED STATES. WHILE UNDER CERTAIN CIRCUMSTANCES WE HAVE AUTHORIZED DEPARTMENTS AND AGENCIES TO REMOVE FROM THEIR ACCOUNTING RECORDS SMALL DEBTS WHICH ADMINISTRATIVELY HAVE BEEN DETERMINED TO BE UNCOLLECTIBLE, THIS GRANT OF AUTHORITY IS LARGELY PREDICATED UPON THE PRACTICALITIES OF THE SITUATION--- IT BEING IN THE GOVERNMENT'S INTEREST NOT TO INSIST UPON CONTINUED COLLECTION ATTEMPTS IN SITUATIONS WHERE THE AMOUNT INVOLVED IS SMALL, LIKELIHOOD OF COLLECTION IMPROBABLE, AND IT APPEARS THE COST OF CONTINUED COLLECTION EFFORTS WILL EXCEED THE AMOUNT OF THE DEBT OR YIELD NO NET RETURNS TO THE GOVERNMENT. SUCH ACTION, OF COURSE, DOES NOT EXTINGUISH THE LIABILITY OF THE DEBTOR.

THE DECISIONS, 28 COMP. GEN. 514 AND 32 COMP. GEN. 394, REFERRED TO IN YOUR GENERAL COUNSEL'S LETTER INVOLVE SITUATIONS IN WHICH THE EMPLOYEES IN EFFECT WERE REGARDED AS SERVING IN A DE FACTO STATUS AND WERE ALLOWED TO RETAIN THE COMPENSATION RECEIVED AS DE FACTO EMPLOYEES. HOWEVER, EVEN UNDER THE DE FACTO RULE, AN EMPLOYEE IS ENTITLED TO NO GREATER COMPENSATION THAN THAT LAWFULLY APPLICABLE TO THE DE FACTO POSITION. SEE 29 COMP. GEN. 75. THEREFORE SUCH DECISIONS ARE NOT REGARDED AS PRECEDENTS FOR THE WAIVER OF EXCESSIVE OR OTHERWISE ERRONEOUS SALARY PAYMENTS AS URGED IN THE LETTER OF YOUR GENERAL COUNSEL.

SECTIONS 383 AND 384 OF TITLE 5, U.S.C. ARE AS FOLLOWS:

IN ALL CASES OF FINE, PENALTY, FORFEITURE, OR DISABILITY, OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE, UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, THE POSTMASTER GENERAL MAY PRESCRIBE SUCH GENERAL RULES AND MODES OF PROCEEDING AS SHALL APPEAR TO BE EXPEDIENT, IN ASCERTAINING THE FACT IN EACH CASE IN WHICH THE INTERESTS OF THE DEPARTMENT PROBABLY REQUIRE THE EXERCISE OF HIS POWERS OVER FINES, PENALTIES, FORFEITURES AND LIABILITIES; AND UPON THE FACT BEING ASCERTAINED, THE GENERAL ACCOUNTING OFFICE MAY, WITH THE WRITTEN CONSENT OF THE POSTMASTER GENERAL, MITIGATE OR REMIT SUCH FINE, PENALTY, OR FORFEITURE, REMOVE SUCH DISABILITY, OR COMPROMISE, RELEASE, OR DISCHARGE SUCH CLAIM FOR SUCH SUM OF MONEY AND DAMAGES, AND ON SUCH TERMS AS THE POSTMASTER GENERAL SHALL DEEM JUST AND EXPEDIENT.

THE PROVISIONS OF SECTION 383 OF THIS TITLE SHALL EXTEND IN ALL CASES PENDING ON MARCH 4, 1925, OR WHICH MAY THEREAFTER ARISE TO BALANCES DUE TO THE UNITED STATES THROUGH ACCOUNTABILITY FOR PUBLIC MONEYS UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, EXCEPTING THE CLASS OF CASES COGNIZABLE UNDER SECTION 49 OF TITLE 39.

YOUR GENERAL COUNSEL URGES THAT THE LANGUAGE "OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE" APPEARING IN SECTION 383 (SECTION 409, REVISED STATUTES) CONTEMPLATES A DIFFERENT CLASS OF LIABILITIES THAN THOSE THERETOFORE ENUMERATED IN THE SECTION AS "FINE, PENALTY, FORFEITURE, OR DISABILITY" OR, OTHERWISE, NO MEANING WOULD BE ASCRIBED TO THE TERM "LIABILITY.' ON THE OTHER HAND, IN 2 COMP. GEN. 727 OUR OFFICE TOOK THE POSITION THAT THE MEANING OF THE RM,"LIABILITY," OR "LIABILITIES," IS LIMITED BY THE RESTRICTIVE WORDS "FINE, PENALTY, FORFEITURE, OR DISABILITY" PRECEDING THE SAME IN THE SECTION. IF THE TERM "LIABILITY" WERE NOT SO VIEWED, IT WOULD BE ALL INCLUSIVE IN MEANING AND WOULD RENDER THE PRECEDING WORDS SUPERFLUOUS. WE CONCLUDED IN THAT DECISION THAT SECTION 383 THEREFORE DID NOT APPLY TO LIABILITIES ARISING OUT OF ACCOUNTABILITY FOR PUBLIC MONEYS BUT OPERATED ONLY TO AUTHORIZE REMITTANCES OF FINES, PENALTIES, FORFEITURES, AND THE LIKE.

AS YOUR GENERAL COUNSEL SAYS, THE PREDECESSOR OF SECTION 383 WAS ORIGINALLY ENACTED AS SECTION 3 OF THE ACT OF MARCH 3, 1851, 9 STAT. 593, WHICH WAS AMENDED BY SECTION 10 OF THE ACT OF AUGUST 18, 1856, 11 STAT. 95. WHILE THE LEGISLATIVE HISTORY OF THE ORIGINAL ACT IS NOT CONCLUSIVE, IT DOES INDICATE THAT AT THE TIME THE ORIGINAL ACT (BILL) WAS UNDER CONSIDERATION IN THE CONGRESS THE DEBTS WITH WHICH IT WAS CONCERNED WERE BALANCES DUE FROM TWO CLASSES OF INDIVIDUALS ONLY; THAT IS, POSTMASTERS AND CONTRACTORS. SEE 3 CONGRESSIONAL GLOBE 712. HENCE, IT WOULD NOT APPEAR THAT THE PROVISION AS ORIGINALLY ENACTED WAS INTENDED TO EXTEND TO EMPLOYEES WHO MAY HAVE BEEN INDEBTED BY REASON OF SALARY OVERPAYMENTS.

IN ANY EVENT, FOLLOWING OUR DECISION IN 2 COMP. GEN. 727 DATED MAY 8, 1923, THE ACT OF MARCH 4, 1925, 43 STAT. 1266, 5 U.S.C. 384, WAS ENACTED. THAT ACT APPARENTLY WAS DESIGNED TO OVERCOME THE EFFECT OF 2 COMP. GEN. 727 BY SPECIFICALLY EXTENDING THE COVERAGE OF SECTION 409, REVISED STATUTES (5 U.S.C. 383), TO "ALL CASES PENDING ON MARCH 4, 1925, OR WHICH MAY THEREAFTER ARISE TO BALANCES DUE TO THE UNITED STATES THROUGH ACCOUNTABILITY FOR PUBLIC MONEYS UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE.' THUS, WHILE THIS AMENDMENT PROVIDED AUTHORITY FOR THE RELIEF OF ACCOUNTABLE OFFICERS WHO MAKE IMPROPER EXPENDITURES FROM PUBLIC FUNDS, THE AMENDMENT DOES NOT PURPORT TO RELIEVE EMPLOYEES FROM LIABILITY TO REFUND AMOUNTS PAID TO THEM WHICH THEY WERE NEVER LEGALLY ENTITLED TO RECEIVE.

WE HAVE EXAMINED NUMEROUS CASES COMING BEFORE OUR OFFICE INVOLVING THE APPLICATION OF 5 U.S.C. 383, YET NO RECORD HAS BEEN FOUND OF ANY REQUEST HAVING BEEN SUBMITTED FOR REMOVAL OF LIABILITY OF ANY EMPLOYEE TO MAKE REFUND OF AN ERRONEOUS COMPENSATION PAYMENT PRIOR TO THE YEAR 1955. APPARENTLY, FOLLOWING OUR DECISION IN 2 COMP. GEN. 727, IT BECAME ACCEPTED THAT THE RELIEF PROVISIONS OF SECTION 409, REVISED STATUTES, DID NOT EXTEND TO CASES OTHER THAN THOSE PERTAINING TO FINES, FORFEITURES, PENALTIES, DISABILITY, AND THE LIKE AND TO CASES INVOLVING ACCOUNTABLE OFFICERS' LIABILITY, AS CONTEMPLATED BY THE ACT OF MARCH 4, 1925. IT IS TRUE THAT SINCE 1955 WE HAVE GRANTED RELIEF IN SEVERAL CASES INVOLVING IMPROPER SALARY PAYMENTS PURPORTEDLY UNDER THE AUTHORITY OF 5 U.S.C. 383. HOWEVER, UPON RECONSIDERATION OF THE ENTIRE HISTORY, OUR PRIOR CONSTRUCTION OF THE SECTION, AND THE EXTENDED PERIOD FOLLOWING OUR DECISION IN 2 COMP. GEN. 727, WHEN 5 U.S.C. 383 APPARENTLY WAS NOT REGARDED AS AUTHORIZING THE RELIEF OF EMPLOYEES RECEIVING EXCESSIVE OR OTHERWISE ERRONEOUS SALARY PAYMENTS, WE ARE NOW OF THE VIEW THAT OUR RECENT CONSTRUCTION OF 5 U.S.C. 383 SHOULD NO LONGER BE FOLLOWED AS PRECEDENT.

WHILE WE RECOGNIZE THAT THE ARGUMENTS RAISED BY YOUR GENERAL COUNSEL PERTAINING TO 5 U.S.C. 383 AND 384 ARE NOT WITHOUT MERIT, WE CONSIDER THAT THE MATTER OF RELIEVING POSTAL EMPLOYEES OF LIABILITY TO REFUND ERRONEOUS SALARY PAYMENTS UPON THE BASIS OF THOSE SECTIONS IS OF SUCH DOUBTFUL LEGAL PROPRIETY THAT WE DO NOT FEEL WARRANTED IN GRANTING FURTHER RELIEF IN SUCH CASES. WE AGREE WITH YOUR GENERAL COUNSEL THAT 5 U.S.C. 46B AND 46D WERE NOT INTENDED TO PRECLUDE THE GRANTING OF RELIEF IN THOSE CASES WHERE RELIEF IS CLEARLY AUTHORIZED BY LAW. HOWEVER, THE AUTHORITY TO GRANT RELIEF AS TO SALARY OVERPAYMENTS IS BY NO MEANS CLEAR AND 5 U.S.C. 46B AND 46D REASONABLY MAY BE REGARDED AS EVIDENCING AN INTENT TO RECOVER OVERPAYMENTS OF SALARY FROM EMPLOYEES DETERMINED TO BE INDEBTED TO THE UNITED STATES. AS YOU WILL APPRECIATE, THE REMOVAL OF LIABILITY OF PERSONS INDEBTED TO THE UNITED STATES IS A PREROGATIVE OF THE CONGRESS WHICH WE SHOULD EXERCISE ONLY UPON THE AUTHORITY OF AN EXPRESS STATUTORY GRANT OR UNEQUIVOCAL EVIDENCE OF A CONGRESSIONAL INTENT THAT WE EXERCISE SUCH AUTHORITY. THEREFORE UNTIL AND UNLESS THE CONGRESS ENACTS CLARIFYING LEGISLATION, WE WILL NOT REGARD 5 U.S.C. 383 AND 384 AS AUTHORITY TO RELIEVE POSTAL EMPLOYEES WHO HAVE RECEIVED ERRONEOUS SALARY PAYMENTS NOR AUTHORIZE SUCH RELIEF THEREUNDER. THIS WILL NOT PRECLUDE THE APPLICATION OF THE DE FACTO RULE MENTIONED ABOVE WHERE APPLICABLE.

OF COURSE, SINCE THIS ACTION REPRESENTS A CHANGE IN CONSTRUCTION OF SECTIONS 383 AND 384 FROM THAT FOLLOWED IN THE GRANTING OF RELIEF IN THE FEW SCATTERED CASES OCCURRING DURING THE LAST SEVERAL YEARS, IT WILL BE GIVEN PROSPECTIVE EFFECT ONLY SO THAT RELIEF OR REMITTANCES ALREADY EFFECTED NEED NOT BE DISTURBED. SEE 36 COMP. GEN. 84.