B-214561.2(2), JUN 11, 1985, 64 COMP.GEN. 606

B-214561.2(2): Jun 11, 1985

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DEBT COLLECTIONS - REFERRAL TO JUSTICE - DEBTOR'S REQUEST FOR COURT OF LAW DETERMINATION PURSUANT TO THE REQUEST OF AN ACCOUNTABLE OFFICER FOR WHOM RELIEF WAS DENIED UNDER 31 U.S.C. 3527 (1952). ACCOUNTABLE OFFICERS - LIABILITY - GENERALLY ACCOUNTABLE OFFICERS ARE AUTOMATICALLY AND STRICTLY LIABLE FOR PUBLIC FUNDS ENTRUSTED TO THEM. COLLECTION OF THE AMOUNT LOST BY MEANS OF ADMINISTRATIVE OFF-SET IS REQUIRED TO BE INITIATED IMMEDIATELY IN ACCORDANCE WITH 5 U.S.C. 5512 (1982) AND SECTION 102.3 OF THE FEDERAL CLAIMS COLLECTION STANDARDS. 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.

B-214561.2(2), JUN 11, 1985, 64 COMP.GEN. 606

DEBT COLLECTIONS - REFERRAL TO JUSTICE - DEBTOR'S REQUEST FOR COURT OF LAW DETERMINATION PURSUANT TO THE REQUEST OF AN ACCOUNTABLE OFFICER FOR WHOM RELIEF WAS DENIED UNDER 31 U.S.C. 3527 (1952), AND IN ACCORDANCE WITH THE REQUIREMENTS OF 5 U.S.C. 5512 (1982), GENERAL ACCOUNTING OFFICE 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. ACCOUNTABLE OFFICERS - LIABILITY - GENERALLY 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 OFF-SET IS REQUIRED TO BE INITIATED IMMEDIATELY IN ACCORDANCE WITH 5 U.S.C. 5512 (1982) AND SECTION 102.3 OF THE FEDERAL CLAIMS COLLECTION STANDARDS, 4 CFR CH. II (1955). 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.

TO FREDERICK R. DECESARIS, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND, JUNE 11, 1985:

THIS RESPONDS TO YOUR LETTER OF SEPTEMBER 4, 1984, CONCERNING THE FEDERAL GOVERNMENT'S CLAIM AGAINST YOU AND OVER THE UNEXPLAINED LOSS OF $4,301 ENTRUSTED TO PERSONS UNDER YOUR SUPERVISION. THEY MATTER WAS DISCUSSED IN OUR DECISION, 63 COMP.GEN. 489 (1984). AS YOU KNOW, OUR DECISION DECLINED TO RELIEVE YOU FROM LIABILITY FOR THAT LOSS. IN YOUR LETTER, YOU REQUESTED THAT THE GENERAL ACCOUNTING OFFICE REPORT THIS CLAIM TO THE ATTORNEY GENERAL OF THE UNITED STATES, PURSUANT TO 5 U.S.C. SEC. 5512(B) (1982), SO THAT THIS MATTER MAY BE ADJUDICATED IN THE FEDERAL COURTS. LETTER OF TODAY'S DATE (COPY ENCLOSED), WE HAVE COMPLIED WITH YOUR REQUEST. PRESUMABLY, YOU WILL BE HEARING FROM AN APPROPRIATE OFFICIAL OF THE DEPARTMENT OF JUSTICE SHORTLY.

IN YOUR LETTER, YOU STATED THAT IT WAS YOUR UNDERSTANDING, BASED ON INFORMATION FROM OFFICIALS OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THAT NO DEDUCTIONS FROM YOUR PAYCHECK MAY BE MADE TO COLLECT THIS CLAIM UNTIL THE MATTER HAS BEEN FULLY LITIGATED. THIS INFORMATION IS NOT CORRECT. UNDER THE LAW, ACCOUNTABLE OFFICERS ARE AUTOMATICALLY AND STRICTLY LIABLE FOR FUNDS ENTRUSTED TO THEM. SEE E.G., SERRANO V. UNITED STATES, 612 F.2D 525, 528 (CT.CL. 1979); 54 COMP.GEN. 112, 114 (1974). THE PROVISIONS OF SECTION 5512 REFLECT THIS PRINCIPLE. THAT ACT PROVIDES:

(A) THE PAY OF AN INDIVIDUAL IN ARREARS TO THE UNITED STATES SHALL BE WITHHELD UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY OF THE UNITED STATES ALL SUMS FOR WHICH HE IS LIABLE.

(B) WHEN PAY IS WITHHELD UNDER SUBSECTION (A) OF THIS SECTION, THE GENERAL ACCOUNTING OFFICER, ON REQUEST OF THE INDIVIDUAL, HIS AGENT, OR HIS ATTORNEY, SHALL REPORT IMMEDIATELY TO THE ATTORNEY GENERAL THE BALANCE DUE; AND THE ATTORNEY GENERAL, WITHIN 60 DAYS, SHALL ORDER SUIT TO BE COMMENCED AGAINST THE INDIVIDUAL. 5 U.S.C. SEC. 5512 (1952).

PREVIOUS DECISIONS OF THE COMPTROLLER OF THE TREASURY, THE ATTORNEY GENERAL OF THE UNITED STATES, AND THE COMPTROLLER GENERAL, ALL INDICATE THAT THE PROVISIONS OF THIS ACT ARE MANDATORY, MAY NOT BE WAIVED, AND REQUIRE THE GOVERNMENT TO IMMEDIATELY COMMENCE COLLECTION OF AN ACCOUNTABLE OFFICER'S DEBTS, WITHOUT REGARD TO THE PENDENCY OF LITIGATION ON THE UNDERLYING INDEBTEDNESS. 4 OP. ATT'Y GEN. 33 (1842); 10 COMP. DEC. 288 (1903); 39 COMP.GEN. 203 (1959). SEE ALSO AL PARKER V. UNITED STATES, 187 CT.CL. 553, 559 (1969); SERRANO V. UNITED STATES, 612 F.2D AT 529.

ORIGINALLY, BOTH THE COMPTROLLER OF THE TREASURY AND THE ATTORNEY GENERAL HELD THAT SECTION 5512 REQUIRES THE COMPLETE STOPPAGE OF AN ACCOUNTABLE OFFICER'S PAY UNTIL THE DEBT HAS BEEN PAID IN FULL. SEE, E.G., 21 OP. ATT'Y GEN. 420 (1831); 8 COMP. DEC. 101 (1901). THIS WAS HELD TO BE THE CASE, REGARDLESS OF THE HARDSHIP THAT WOULD BE IMPOSED ON THE OFFICER. OP. ATT'Y GEN. AT 425; 8 COMP. DEC. AT 101. FOR A VARIETY OF REASONS, GAO DOES NOT ADOPT THAT POSITION. INSTEAD, WE HAVE HELD THAT INSTALLMENT DEDUCTIONS MAY BE ALLOWED IN PLACE OF A COMPLETE STOPPAGE OF PAY. COMP.GEN. 689, 691-92 (1923); B-180957-O.M., SEPT. 25, 1979. CF. 19 COMP.GEN. 312 (1939).

HOWEVER, THERE IS NO REQUIREMENT THAT SUIT BE FILED OR COMPLETED PRIOR TO THE INITIATION OR COMPLETION OF COLLECTION BY MEANS OF OFFSET. 4 OP. ATT'Y GEN. 33; 17 OP. ATT'Y GEN. 30 (1881). COMPARE SERRANO V. UNITED STATES, 612 F.2D AT 529. IN FACT, IT HAS BEEN HELD IN THE PAST THAT SECTION BEFORE 5512 CONTEMPLATES THE INITIATION OF COLLECTION BY OFFSET BEFORE LITIGATION IS INSTITUTED AGAINST THE OFFICER (4 OP. ATT'Y GEN. AT 35-36; 17 OP. ATT'Y GEN. AT 31; A-2423, ET AL., MAY 31, 1928; 38 COMP.GEN. 731 (1959), AND THAT IN ORDER TO INVOKE THE PROVISIONS OF SECTION 5512(B), AN ACCOUNTABLE OFFICER MUST SUBMIT EVIDENCE TO SHOW HIS PAY HAS ACTUALLY BEEN STOPPED (A20796, DEC. 9. 1927). FINALLY, IT HAS BEEN HELD THAT, EVEN AFTER LITIGATION HAS BEEN INITIATED, COLLECTION OF A DEBT BY OFFSET SHOULD CONTINUE. A 22201, FEB. 15, 1929; B-8188, SEPT. 27, 1941. THIS CONSTRUCTION OF SECTION 5512 DOES NOT PRESENT THE COURTS WITH LITIGATION OF "MOOT" ISSUES SINCE THE ISSUES AT TRIAL UNDER SECTION 5512(B) CONCERNS NOT THE COLLECTION OF ANY AMOUNTS REMAINING TO BE PAID, BUT RATHER, THE AMOUNT AND VALIDITY OF THE GOVERNMENT'S TOTAL ORIGINAL CLAIM ON THAT DEBT. A 11893-O.M., JULY 20, 1936. SHOULD THE OFFICER WIN IN COURT, THE AMOUNT WITHHELD IS REFUNDED TO HIM. A-22201, JUNE 1, 1928, A-11893-O.M., JULY 20, 1936.

BASED ON THE FOREGOING PRECEDENTS AND PRINCIPLES, WE ARE ADVISING THE ADMINISTRATIVE OFFICER OF THE UNITED STATES COURTS THAT IT SHOULD IMMEDIATELY BEGIN COLLECTION OF YOUR DEBT BY MEANS OF SALARY OFFSET, AS REQUIRED BY 5 U.S.C. SEC. 5512(A). IN VIEW OF THE STATUTORY PROVISION IN SECTION 5512(B) FOR ADJUDICATION OF THIS MATTER IN THE COURTS (AS WELL AS THE FACT THAT YOU PARTICIPATED, THROUGH WRITTEN SUBMISSIONS, IN OUR ORIGINAL DECISION ON THIS MATTER, AND YOU HAVE NOT DISPUTED THE EXISTENCE OR AMOUNT OF THE LOSS WITH WHICH YOU ARE CHARGED, OR REQUESTED RECONSIDERATION OF THE LEGAL CONCLUSIONS OF THIS OFFICE'S DECISION), THERE IS NO NEED TO AFFORD YOU WITH AN ADDITIONAL HEARING ON THIS MATTER. SEE FEDERAL CLAIMS COLLECTION STANDARDS (FCCS), 4 C.F.R. SECS. 101.4 102.3(B)(2)(II) (1985). OTHERWISE, COLLECTION SHOULD PROCEED GENERALLY IN ACCORDANCE WITH THE PROVISIONS OF THE FCCS, INCLUDING THOSE PROVISIONS WHICH INCLUDE THE ASSESSMENT OF INTEREST AND OTHER CHARGES. SEE FCCS, 4 C.F.R. SEC. 102.13, IMPLEMENTING 31 U.S.C. SEC. 3717 (1982). OF COURSE, THESE CONCLUSIONS DO NOT PRECLUDE YOU FROM PURSUING ANY OTHER LEGAL RIGHTS OR REMEDIES AVAILABLE TO YOU. SEE, FOR EXAMPLE, LOUISEL V. MORTIMER, 227 F. 882 (5TH CIR. 1922).

SHOULD YOU HAVE ANY QUESTIONS IN THIS MATTER, PLEASE DO NOT HESITATE TO CONTACT MR. NEILL MARTIN-ROLSKY OF MY STAFF, AT 202-275-5544.