B-144836, FEB. 2, 1961

B-144836: Feb 2, 1961

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FOR UNPAID COMPENSATION DUE THE DECEDENT WAS DISALLOWED. THE DISALLOWANCE WAS ON THE GROUNDS THAT THE RECORD DISCLOSES THAT THE DECEDENT MAY HAVE BEEN SURVIVED BY A COMMON LAW WIDOWER (THERE HAVING BEEN NO DESIGNATED BENEFICIARY) WHO WOULD BE ENTITLED TO THE AMOUNT DUE FOR UNPAID COMPENSATION UNDER THE ACT OF AUGUST 3. UNDER FINDINGS OF FACT 8 (C) AND (D) AND CONCLUSION OF LAW NO. 3 OUR OFFICE IS DIRECTED TO MAKE DISTRIBUTION CONTRARY TO THE PROVISIONS OF 64 STAT. 395. WE HAVE INFORMALLY ASCERTAINED FROM THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. WERE THE METROPOLITAN LIFE INSURANCE COMPANY. OR DECREE IS NOT VALID OR BINDING ON THE PARTY WHO HAS NO NOTICE OF PROCEEDINGS AGAINST HIM AND A COURT ORDER WHICH IS RENDERED WITHOUT ANY NOTICE TO.

B-144836, FEB. 2, 1961

TO MR. JULIUS W. ROBERTSON:

THIS REFERS TO YOUR LETTER OF DECEMBER 14, 1960, CONCERNING UNPAID COMPENSATION DUE IN THE CASE OF IRENE VIRGINIA PARKER, DECEASED, FORMER EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SAINT ELEZABETHS HOSPITAL.

BY SETTLEMENT OF OUR OFFICE DATED OCTOBER 28, 1959, MRS. BERTHA TURNER'S CLAIM AS GUARDIAN OF THE ESTATE OF THE MINOR CHILDREN OF IRENE VIRGINIA PARKER, FOR UNPAID COMPENSATION DUE THE DECEDENT WAS DISALLOWED. THE DISALLOWANCE WAS ON THE GROUNDS THAT THE RECORD DISCLOSES THAT THE DECEDENT MAY HAVE BEEN SURVIVED BY A COMMON LAW WIDOWER (THERE HAVING BEEN NO DESIGNATED BENEFICIARY) WHO WOULD BE ENTITLED TO THE AMOUNT DUE FOR UNPAID COMPENSATION UNDER THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5 U.S.C. 61F-K. THAT ACT PROVIDES FOR THE PAYMENT OF THE AMOUNT DUE AN EMPLOYEE AT THE TIME OF HIS DEATH, FIRST TO THE PERSON DESIGNATED IN WRITING BY SUCH EMPLOYEE, SECOND TO THE WIDOW OR WIDOWER, THIRD TO THE CHILDREN, FOURTH TO THE PARENTS AND FIFTH TO THE ADMINISTRATOR OF THE ESTATE AND THAT SUCH PAYMENT WOULD BE A BAR TO RECOVERY BY ANY OTHER PERSON.

IN SUPPORT OF THE CLAIM OF MRS. BERTHA TURNER YOU FORWARDED TO OUR OFFICE A COPY OF AN ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, FILED NOVEMBER 28, 1960, IN THE CASE OF BERTHA TURNER, GUARDIAN OF BARBARA Y. SMITH, ET AL. V. METROPOLITAN LIFE INSURANCE COMPANY (A CORPORATION, ET AL.), CIVIL ACTION NO. 2911 59. UNDER FINDING OF FACT NO. 3 THE COURT FOUND THAT THE DECEASED IRENE PARKER AND FLOYD PARKER ENTERED INTO A VALID COMMON LAW MARRIAGE IN THE YEAR 1946. ALSO, UNDER FINDINGS OF FACT 8 (C) AND (D) AND CONCLUSION OF LAW NO. 3 OUR OFFICE IS DIRECTED TO MAKE DISTRIBUTION CONTRARY TO THE PROVISIONS OF 64 STAT. 395.

WE HAVE INFORMALLY ASCERTAINED FROM THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL DIVISION, THAT THE DEFENDANTS IN CIVIL ACTION NO. 2911-59, WERE THE METROPOLITAN LIFE INSURANCE COMPANY, FLOYD E. PARKER, AND JOSEPH LEE. A JUDGMENT, ORDER, OR DECREE IS NOT VALID OR BINDING ON THE PARTY WHO HAS NO NOTICE OF PROCEEDINGS AGAINST HIM AND A COURT ORDER WHICH IS RENDERED WITHOUT ANY NOTICE TO, OR SERVICE OF PROCESS ON THE PARTY INVOLVED IS GENERALLY VOID FOR WANT OF JURISDICTION. 49 C.J.S. 23. SINCE THE UNITED STATES GENERAL ACCOUNTING OFFICE WAS NOT A PARTY TO THE SUIT, AND SINCE IT IS NOT AN AGENT, OR SERVANT OF ANY OF THE DEFENDANTS, THOSE PORTIONS OF THE ORDER PURPORTING TO DIRECT THE GENERAL ACCOUNTING OFFICE TO TAKE CERTAIN ACTION REGARDING DISPOSITION OF SUMS DUE THE DECEDENT AT TIME OF DEATH ARE NOT BINDING ON THE GENERAL ACCOUNTING OFFICE.

FURTHERMORE, AS THE CLAIM BEFORE THE GENERAL ACCOUNTING OFFICE INVOLVES SALARY, IT WOULD APPEAR THAT THE DISTRICT COURT LACKS JURISDICTION TO CONSIDER THAT PART OF THE CLAIM OF THE PLAINTIFF SINCE, UNDER THE PROVISIONS OF 28 U.S.C. 1346 (D) DISTRICT COURTS ARE WITHOUT JURISDICTION TO CONSIDER CLAIMS FOR "FEES, SALARY, OR COMPENSATION FOR OFFICIAL SERVICES OF OFFICERS OR EMPLOYEES OF THE UNITED STATES.' SEE BRUNER V. UNITED STATES, 343 U.S. 112; MILLER V. UNITED STATES, 133 F.SUPP. ALMOUR V PACE, 193 F.2D 699; RILEY V DEPARTMENT OF AIR FORCE, 201 F.2D 203; HANES V. PACE, 203 F.2D 225.

THEREFORE, OUR SETTLEMENT OF OCTOBER 28, 1959, DISALLOWING THE CLAIM OF MRS. BERTHA TURNER, IS ..END :