B-162026, AUG. 21, 1967

B-162026: Aug 21, 1967

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ALTHOUGH THERE IS NO AUTHORITY FOR ONE AGENCY TO ATTACH A LIEN AGAINST FUNDS IN HANDS OF BUREAU OF EMPLOYEE'S COMPENSATION TO LIQUIDATE DEBT OF DECEASED EMPLOYEE FOR MIS-APPROPRIATION OF FUNDS. IT WAS HELD (QUOTING FROM THE SYLLABUS): "THE INHERENT RIGHT OF THE GOVERNMENT TO SET OFF MONEYS IN ITS POSSESSION DUE A PERSON WHO IS INDEBTED TO THE UNITED STATES. IS NOT AFFECTED BY STATUTES UNLESS THE LANGUAGE OR THE CONGRESSIONAL INTENT IS CLEARLY EXPRESSED. WHICH ARE SIMILAR TO THOSE IN RETIREMENT AND OTHER BENEFIT ACTS. THE HOLDING IN THAT DECISION IS EQUALLY APPLICABLE TO THE CASE HERE INVOLVED. WHILE WE ARE NOT AWARE OF ANY AUTHORITY UNDER WHICH YOUR AGENCY CAN ATTACH OR ASSERT A LIEN AGAINST FUNDS IN THE HANDS OF THE BUREAU OF EMPLOYEES' COMPENSATION THAT OTHERWISE WOULD BE PAYABLE TO THE FORMER EMPLOYEE INVOLVED.

B-162026, AUG. 21, 1967

COMPENSATION - SET OFF DECISION TO DIRECTOR, C.I.A. RE AUTHORITY TO ATTACH A LIEN AGAINST DEATH BENEFITS UNDER EMPLOYEES COMPENSATION ACT DUE DECEASED EMPLOYEE TO LIQUIDATE DEBT DUE TO HER MISAPPROPRIATION OF GOVERNMENT FUNDS. ALTHOUGH THERE IS NO AUTHORITY FOR ONE AGENCY TO ATTACH A LIEN AGAINST FUNDS IN HANDS OF BUREAU OF EMPLOYEE'S COMPENSATION TO LIQUIDATE DEBT OF DECEASED EMPLOYEE FOR MIS-APPROPRIATION OF FUNDS, SET OFF IN LIQUIDATION OF DEBT MAY BE ACCOMPLISHED. SEE 41 COMP. GEN. 178.

TO MR. HELMS:

BY LETTER OF JULY 11, 1967, YOUR EXECUTIVE DIRECTOR-COMPTROLLER REQUESTED A DECISION AS TO WHETHER YOUR AGENCY MAY ATTACH OR OTHERWISE EXERCISE A LIEN AGAINST DEATH BENEFITS PAYABLE TO A FORMER EMPLOYEE OF YOUR AGENCY UNDER 5 U.S.C. 8133 AS A SETOFF AGAINST HER INDEBTEDNESS TO YOUR AGENCY BY REASON OF HER MISAPPROPRIATION OF GOVERNMENT FUNDS. THE QUESTION ARISES BY REASON OF THE FACT THAT AFTER ACKNOWLEDGING HER INDEBTEDNESS AND ASKING THE BUREAU OF EMPLOYEES' COMPENSATION TO FORWARD HER COMPENSATION PAYMENTS TO THE CENTRAL INTELLIGENCE AGENCY IN LIQUIDATION OF HER INDEBTEDNESS, SHE NOTIFIED THE BUREAU TO STOP MAKING PAYMENTS TO THE CENTRAL INTELLIGENCE AGENCY AND TO MAIL THEM TO HER BANK.

IN OUR DECISION OF SEPTEMBER 5, 1961, 41 COMP. GEN. 178, IT WAS HELD (QUOTING FROM THE SYLLABUS):

"THE INHERENT RIGHT OF THE GOVERNMENT TO SET OFF MONEYS IN ITS POSSESSION DUE A PERSON WHO IS INDEBTED TO THE UNITED STATES, WHEN A DEBTOR-CREDITOR RELATIONSHIP EXISTS BETWEEN THE UNITED STATES AND THE PERSON, IS NOT AFFECTED BY STATUTES UNLESS THE LANGUAGE OR THE CONGRESSIONAL INTENT IS CLEARLY EXPRESSED; THEREFORE, IN THE ABSENCE OF AN EXPRESS OR NECESSARILY IMPLIED PROVISION IN THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. 751, ET SEQ., PRECLUDING THE UNITED STATES FROM EXERCISING ITS RIGHT OF SET-OFF, AND NOTWITHSTANDING THE PROVISIONS OF SECTION 25 OF THE ACT, 5 U.S.C. 775, EXEMPTING AWARDS UNDER THE ACT FROM CLAIMS OF CREDITORS, WHICH ARE SIMILAR TO THOSE IN RETIREMENT AND OTHER BENEFIT ACTS, PAYMENTS UNDER THE ACT, MAY BE SET OFF IN LIQUIDATION OF AN INDEPENDENTLY ESTABLISHED DEBT TO THE UNITED STATES, AND SUCH SET-OFF MAY BE APPLIED TO EITHER MONTHLY PAYMENTS OR LUMP-SUM AWARDS.'

THE HOLDING IN THAT DECISION IS EQUALLY APPLICABLE TO THE CASE HERE INVOLVED. THEREFORE, WHILE WE ARE NOT AWARE OF ANY AUTHORITY UNDER WHICH YOUR AGENCY CAN ATTACH OR ASSERT A LIEN AGAINST FUNDS IN THE HANDS OF THE BUREAU OF EMPLOYEES' COMPENSATION THAT OTHERWISE WOULD BE PAYABLE TO THE FORMER EMPLOYEE INVOLVED, PAYMENTS UNDER THE ACT MAY BE SET OFF IN LIQUIDATION OF THE INDEBTEDNESS. A REQUEST FOR SETOFF OF SUCH FUNDS SHOULD BE SUBMITTED TO THE BUREAU TOGETHER WITH A COPY OF THIS DECISION.