B-214561.2, JUN 11, 1985, OFFICE OF GENERAL COUNSEL

B-214561.2, JUN 11, 1985, OFFICE OF GENERAL COUNSEL

DEBT COLLECTIONS - REFERRAL TO JUSTICE - DEBTORS REQUEST FOR COURT OF LAW DETERMINATION DIGEST: 1. PURSUANT TO THE REQUEST OF AN ACCOUNTABLE OFFICER FOR WHOM RELIEF WAS DENIED UNDER 31 U.S.C. SEC. 3527 (1982), AND IN ACCORDANCE WITH THE REQUIREMENTS OF 5 U.S.C. SEC. 5512 (1982), GAO REPORTS THE BALANCE CLAIMED DUE AGAINST THE ACCOUNTABLE OFFICER TO THE ATTORNEY GENERAL OF THE UNITED STATES IN ORDER THAT LEGAL ACTION BE INSTITUTED AGAINST THE OFFICER. DEBT COLLECTIONS - REFERRAL TO JUSTICE - DEBTORS REQUEST FOR COURT OF LAW DETERMINATION 2. ACCOUNTABLE OFFICERS ARE AUTOMATICALLY AND STRICTLY LIABLE FOR PUBLIC FUNDS ENTRUSTED TO THEM. WHEN A LOSS OCCURS, IF RELIEF PURSUANT TO AN APPLICABLE STATUTE HAS NOT BEEN GRANTED, COLLECTION OF THE AMOUNT LOST BY MEANS OF ADMINISTRATIVE OFFSET IS REQUIRED TO BE INITIATED IMMEDIATELY IN ACCORDANCE WITH 5 U.S.C. SEC. 5512 (1982) AND SECTION 102.3 OF THE FEDERAL CLAIMS COLLECTION STANDARDS, 4 C.F.R. CH. II (1985). SHOULD THE ACCOUNTABLE OFFICER REQUEST IT, GAO IS REQUIRED BY SECTION 5512 TO REPORT THE AMOUNT CLAIMED TO THE ATTORNEY GENERAL, WHO IS REQUIRED TO INSTITUTE LEGAL ACTION AGAINST THE OFFICER. THERE IS NO DISCRETION TO NOT REPORT THE DEBT OR TO NOT SUE THE OFFICER; THE ACT IS MANDATORY. COLLECTION BY ADMINISTRATIVE OFFSET UNDER SECTION 5512 SHOULD PROCEED DURING THE PENDENCY OF THE LITIGATION, BUT MAY BE MADE IN REASONABLE INSTALLMENTS, RATHER THAN BY COMPLETE STOPPAGE OF PAY. COLLECTION OF THE DEBT PRIOR TO OR DURING THE PENDENCY OF LITIGATION DOES NOT PRESENT THE COURTS WITH A MOOT ISSUE SINCE THE ISSUE AT TRIAL CONCERNS THE ORIGINAL AMOUNT ASSERTED AGAINST THE OFFICER, NOT THE BALANCE REMAINING TO BE PAID.

WILLIAM FOLEY, DIRECTOR: ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WASHINGTON, D.C. 20544

AT THE REQUEST OF MR. FREDERICK R. DECASARIS, BY HIS LETTER DATED SEPTEMBER 4, 1984, AND PURSUANT TO 5 U.S.C. SEC. 5512(B) (1982), WE HAVE REPORTED THE GOVERNMENT'S CLAIM AGAINST HIM CONCERNING THE UNEXPLAINED LOSS OF $4,301 TO THE ATTORNEY GENERAL OF THE UNITED STATES. (SEE OUR LETTER OF THIS DATE, A COPY OF WHICH IS ENCLOSED.) THIS REFERRAL WAS MADE FOR THE PURPOSE OF INITIATING LEGAL ACTION AGAINST MR. DECESARIS CONCERNING THAT LOSS. AS YOU WILL RECALL, THE FACTS AND CIRCUMSTANCES OF HIS DEBT WERE DISCUSSED IN OUR DECISION, 63 COMP.GEN. 489 (1984), IN WHICH WE DECLINED TO GRANT HIM RELIEF UNDER 31 U.S.C. SEC. 3527 (1982).

IN HIS REQUEST TO US, MR. DECESARIS INDICATED THAT HE UNDERSTOOD FROM OFFICIALS OF YOUR OFFICE THAT NO DEDUCTIONS WOULD BE MADE FROM HIS PAYCHECK, PENDING COMPLETION OF THE REQUESTED LITIGATION. BY LETTER OF THIS DATE, WE HAVE ADVISED MR. DECESARIS THAT HIS UNDERSTANDING IN THIS REGARD IS NOT CORRECT. AS YOU WILL SEE FROM THE ENCLOSED MATERIALS, IT IS THE POSITION OF THIS OFFICE THAT INSTALLMENT DEDUCTIONS ARE REQUIRED TO BEGIN IMMEDIATELY IN ORDER TO COLLECT MR. DECESARIS' DEBT, REGARDLESS OF OUR REFERRAL OF THIS MATTER TO THE ATTORNEY GENERAL FOR LEGAL ACTION.

IT IS THE PURPOSE OF THIS LETTER TO APPRISE YOU OF OUR POSITION IN THIS MATTER, AND TO ADVISE YOU THAT (AS DISCUSSED IN OUR LETTER TO MR. DECESARIS) ADMINISTRATIVE OFFSET, PURSUANT TO 5 U.S.C. SEC. 5512, SHOULD BEGIN IMMEDIATELY. THIS OFFSET ACTIVITY SHOULD BE EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL CLAIMS COLLECTION STANDARDS, 4 C.F.R. CH. II (1985).

SHOULD YOU HAVE ANY QUESTIONS ON THIS MATTER, PLEASE FEEL FREE TO CONTACT MR. NEILL MARTIN-ROLSKY OF MY STAFF, AT 202-275-5544.