B-94488, MAY 17, 1950, 29 COMP. GEN. 470

B-94488: May 17, 1950

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1950: REFERENCE IS MADE TO YOUR LETTER OF APRIL 10. WHO WAS INJURED THROUGH THE NEGLIGENCE OF AN EMPLOYEE OF YOUR DEPARTMENT WHILE PERFORMING OFFICIAL DUTIES. IT IS EXPLAINED THAT THE INJURED EMPLOYEE OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY FILED A CLAIM WITH YOUR DEPARTMENT IN THE SUM OF $335.56 PURSUANT TO THE FEDERAL TORT CLAIMS ACT. UNDER SUCH CIRCUMSTANCES THE CLAIMANT WAS AWARDED THE SUM OF $267.56 AND THE RAILROAD RETIREMENT BOARD HAS NOW REQUESTED REIMBURSEMENT FROM YOUR DEPARTMENT IN THE AMOUNT PAID BY THE BOARD AS SICK BENEFITS TO THE CLAIMANT AS THE RESULT OF SUCH INJURY. IT IS INDICATED THAT YOUR DOUBT IN THE INSTANT MATTER ARISES BY REASON OF THE FACT THAT THE SUBROGEE.

B-94488, MAY 17, 1950, 29 COMP. GEN. 470

PERSONAL INJURIES - DAMAGES - AVAILABILITY OF POST OFFICE DEPARTMENT APPROPRIATIONS TO REIMBURSE SUBROGEE UNDER RAILROAD UNEMPLOYMENT INSURANCE ACT THE RAILROAD RETIREMENT BOARD, AS SUBROGEE UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT OF A RAILROAD EMPLOYEE INJURED THROUGH THE NEGLIGENCE OF A POSTAL EMPLOYEE, MAY BE REIMBURSED FROM APPROPRIATIONS OF THE POST OFFICE DEPARTMENT THE SUM WITHHELD BY THE DEPARTMENT FROM AN AWARD MADE UNDER THE FEDERAL TORT CLAIMS ACT, IN THE AMOUNT OF SICK BENEFITS RECEIVED BY THE EMPLOYEE FROM THE RAILROAD UNEMPLOYMENT INSURANCE ACCOUNT.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MAY 17, 1950:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1950, REQUESTING TO BE ADVISED AS TO WHETHER YOUR DEPARTMENT PROPERLY MAY REIMBURSE THE RAILROAD RETIREMENT BOARD FOR AN AMOUNT PAID AS SICK BENEFITS TO AN EMPLOYEE OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, WHO WAS INJURED THROUGH THE NEGLIGENCE OF AN EMPLOYEE OF YOUR DEPARTMENT WHILE PERFORMING OFFICIAL DUTIES.

IT IS EXPLAINED THAT THE INJURED EMPLOYEE OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY FILED A CLAIM WITH YOUR DEPARTMENT IN THE SUM OF $335.56 PURSUANT TO THE FEDERAL TORT CLAIMS ACT, APPROVED AUGUST 2, 1946, 60 STAT. 842, 843, AND THAT, UPON CONSIDERATION OF THE CLAIM, IT APPEARED THAT THE CLAIMANT HAD BEEN PAID THE SUM OF $68 IN SICK BENEFITS BY THE RAILROAD RETIREMENT BOARD. UNDER SUCH CIRCUMSTANCES THE CLAIMANT WAS AWARDED THE SUM OF $267.56 AND THE RAILROAD RETIREMENT BOARD HAS NOW REQUESTED REIMBURSEMENT FROM YOUR DEPARTMENT IN THE AMOUNT PAID BY THE BOARD AS SICK BENEFITS TO THE CLAIMANT AS THE RESULT OF SUCH INJURY.

YOU POINT OUT THAT THE RIGHT OF AN INSURER OR OTHER SUBROGEE TO ASSERT A CLAIM UNDER THE FEDERAL TORT CLAIMS ACT HAS BEEN ESTABLISHED IN THE CASE OF UNITED STATES V. AETNA CASUALTY AND SURETY COMPANY, 338 U.S. 366. HOWEVER, IT IS INDICATED THAT YOUR DOUBT IN THE INSTANT MATTER ARISES BY REASON OF THE FACT THAT THE SUBROGEE, THE RAILROAD RETIREMENT BOARD, IS AN AGENCY OF THE UNITED STATES GOVERNMENT, AND AS SUCH COMES WITHIN THE PRINCIPLES OF THE DECISIONS 25 COMP. GEN. 322; 10 ID. 288; 8 ID. 600; 5 ID. 162.

THE DECISIONS OF THE ACCOUNTING OFFICERS JUST CITED ARE TO THE EFFECT THAT, WHERE PUBLIC PROPERTY IN THE CUSTODY OF ONE AGENCY OF THE GOVERNMENT IS LOANED TO ANOTHER AGENCY, THE COST OF REPAIRS AND REPLACEMENT IN THE EVENT OF DAMAGE OR LOSS OF THE PROPERTY MAY NOT BE PAID FROM THE APPROPRIATIONS OF THE BORROWING AGENCY. THE REASON FOR THIS RULE IS, GENERALLY, THAT THE APPROPRIATIONS OF THE BORROWING AGENCY WERE NOT PROVIDED FOR THE PURPOSE OF REPAIRS OR REPLACEMENTS OF ARTICLES UNDER THE CONTROL OF ANOTHER AGENCY, AND THAT ANY PAYMENT THEREFOR WOULD RESULT IN AN IMPROPER ENHANCEMENT OF THE APPROPRIATIONS OF THE LENDING AGENCY AVAILABLE FOR THAT PURPOSE. HOWEVER, THE APPLICABILITY OF THE RULE OF SAID DECISIONS TO THE INSTANT CASE IS NOT APPARENT. ASIDE FROM THE FACT THAT THERE IS NOT HERE INVOLVED THE MATTER OF REPAIRS OR REPLACEMENT OF DAMAGED OR LOST PUBLIC PROPERTY, IT IS OBVIOUS THAT THE APPROPRIATIONS OF THE POST OFFICE DEPARTMENT ARE AVAILABLE FOR THE PAYMENT REQUESTED BY THE RAILROAD RETIREMENT BOARD, AND THAT SUCH PAYMENT WOULD NOT RESULT IN ANY IMPROPER ENHANCEMENT OF APPROPRIATED FUNDS OF THE BOARD. IN THAT CONNECTION, IT APPEARS THAT THE BENEFITS IN QUESTION WERE PAID FROM THE RAILROAD UNEMPLOYMENT INSURANCE ACCOUNT ESTABLISHED BY 45 U.S.C. 360, WHICH ACCOUNT IS MAINTAINED BY THE CONTRIBUTIONS OF EMPLOYERS AND EMPLOYEE REPRESENTATIVES COVERED BY THE RAILROAD UNEMPLOYMENT INSURANCE ACT. SEE 45 U.S.C. 358.

FURTHER, PARTICULAR ATTENTION IS INVITED TO SECTION 12 (O) OF THE RAILROAD UNEMPLOYMENT INSURANCE ACT, 45 U.S.C. 362 (O), WHICH PROVIDES AS FOLLOWS:

BENEFITS PAYABLE TO AN EMPLOYEE WITH RESPECT TO DAYS OF SICKNESS SHALL BE PAYABLE REGARDLESS OF THE LIABILITY OF ANY PERSON TO PAY DAMAGES FOR SUCH INFIRMITY. THE BOARD SHALL BE ENTITLED TO REIMBURSEMENT FROM ANY SUM OR DAMAGES PAID OR PAYABLE TO SUCH EMPLOYEE OR OTHER PERSON THROUGH SUIT, COMPROMISE, SETTLEMENT, JUDGMENT, OR OTHERWISE ON ACCOUNT OF ANY LIABILITY (OTHER THAN A LIABILITY UNDER A HEALTH, SICKNESS, ACCIDENT, OR SIMILAR INSURANCE POLICY) BASED UPON SUCH INFIRMITY, TO THE EXTENT THAT IT WILL HAVE PAID OR WILL PAY BENEFITS FOR DAYS OF SICKNESS RESULTING FROM SUCH INFIRMITY. UPON NOTICE TO THE PERSON AGAINST WHOM SUCH RIGHT OR CLAIM EXISTS OR IS ASSERTED, THE BOARD SHALL HAVE A LIEN UPON SUCH RIGHT OR CLAIM, ANY JUDGMENT OBTAINED THEREUNDER, AND ANY SUM OR DAMAGES PAID UNDER SUCH RIGHT OR CLAIM, TO THE EXTENT OF THE AMOUNT TO WHICH THE BOARD IS ENTITLED BY WAY OF REIMBURSEMENT.

IT IS CLEAR THAT THE PURPOSE OF THE ABOVE PROVISION OF LAW IS TO MAINTAIN THE CORPUS OF THE INVOLVED ACCOUNT WHEREVER POSSIBLE, AND THAT SUCH PURPOSE WOULD BE DEFEATED BY FAILURE TO MAKE PAYMENT IN THE INSTANT CASE. IN CONSIDERATION THEREOF, AND OF THE NATURE OF THE FUNDS INVOLVED, AND SINCE NO LEGAL OBJECTION TO THE PAYMENT OTHERWISE IS PERCEIVED BECAUSE OF THE FACT THAT THE RAILROAD RETIREMENT BOARD IS AN AGENCY OF THE UNITED STATES, YOU ARE ADVISED THAT THE REIMBURSEMENT REQUESTED BY THE BOARD PROPERLY MAY BE MADE BY YOUR DEPARTMENT.