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B-159778, MAY 17, 1967

B-159778 May 17, 1967
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TO CHICAGO AND NORTH WESTERN RAILWAY COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 13. WAS REPORTED HERE IN ACCORDANCE WITH OUR REGULATIONS BY THE RAILROAD RETIREMENT BOARD AS A DEBT UNCOLLECTIBLE ADMINISTRATIVELY BY MEANS AVAILABLE TO IT. EXCEPTIONS TO THE PROCEDURES DEEMED NECESSARY TO MAINTAIN UNIFORM AND ORDERLY ACCOUNTING FOR PUBLIC FUNDS ARE NOT ORDINARILY WARRANTED UNLESS THERE EXIST COMPELLING CIRCUMSTANCES ESTABLISHING A DEFINITE NEED FOR THE SPECIAL TREATMENT OF PARTICULAR CASES. UNDER OUR PROCEDURES YOU ARE. YOU HAVE AVAILABLE THE USUAL JUDICIAL REMEDIES. SINCE WE ALREADY HAVE RECEIVED FROM ADMINISTRATIVE OFFICES CHECKS TOTALING IN EXCESS OF $30. 000 BUT HAVE NOT YET APPLIED THEM TO YOUR INDEBTEDNESS.

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B-159778, MAY 17, 1967

TO CHICAGO AND NORTH WESTERN RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 13, 1967, AND TO PRIOR CORRESPONDENCE, RELATIVE TO OUR ACTION IN PLACING YOUR COMPANY'S NAME ON THE LIST OF CONTRACTORS INDEBTED TO THE UNITED STATES FOR THE PURPOSE OF COLLECTING BY OFFSET AN INDEBTEDNESS OF $33,776.37, PLUS INTEREST.

THE CLAIM OF $33,776.37, PLUS INTEREST, AGAINST THE CHICAGO AND NORTH WESTERN RAILWAY COMPANY, WAS REPORTED HERE IN ACCORDANCE WITH OUR REGULATIONS BY THE RAILROAD RETIREMENT BOARD AS A DEBT UNCOLLECTIBLE ADMINISTRATIVELY BY MEANS AVAILABLE TO IT. YOU REQUEST THAT WE WITHHOLD OUR COLLECTION ACTION ON THAT CLAIM AND REMOVE YOUR NAME FROM THE LIST OF CONTRACTORS INDEBTED TO THE UNITED STATES. HOWEVER, IN DISCHARGING OUR OBLIGATIONS UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 31 U.S.C. 71, AND UNDER OUR REGULATIONS ISSUED PURSUANT TO THAT LAW, EXCEPTIONS TO THE PROCEDURES DEEMED NECESSARY TO MAINTAIN UNIFORM AND ORDERLY ACCOUNTING FOR PUBLIC FUNDS ARE NOT ORDINARILY WARRANTED UNLESS THERE EXIST COMPELLING CIRCUMSTANCES ESTABLISHING A DEFINITE NEED FOR THE SPECIAL TREATMENT OF PARTICULAR CASES. FOR THESE REASONS AND IN THE ABSENCE OF ANY EVIDENCE DEMONSTRATING NEED FOR SPECIAL TREATMENT, WE WOULD NOT BE WARRANTED IN COMPLYING WITH YOUR REQUEST. COMPARE 4 CFR 102.3; 46 COMP. GEN. 63 (1966).

UNDER OUR PROCEDURES YOU ARE, OF COURSE, PRIVILEGED TO FILE A CLAIM FOR REFUND OF ANY AMOUNT COLLECTED BY DEDUCTION, WHICH YOU CONSIDER TO BE PROPERLY PAYABLE TO YOU, SETTING FORTH FULLY THE BASIS RELIED UPON TO SUPPORT YOUR POSITION. 4 CFR 30. ALSO, YOU HAVE AVAILABLE THE USUAL JUDICIAL REMEDIES. HOWEVER, SINCE WE ALREADY HAVE RECEIVED FROM ADMINISTRATIVE OFFICES CHECKS TOTALING IN EXCESS OF $30,000 BUT HAVE NOT YET APPLIED THEM TO YOUR INDEBTEDNESS, WE WILL TREAT YOUR TELEGRAM AND EARLIER CORRESPONDENCE AS A REQUEST FOR REVIEW OF OUR DETERMINATION OF THE INDEBTEDNESS.

THE RAILROAD RETIREMENT BOARD, IN A PROCEEDING UNDER BOARD ORDER 61 185, DECIDED JUNE 9, 1965, DETERMINED THAT CERTAIN SO-CALLED COORDINATION AND DISMISSAL ALLOWANCES, PAID TO RAILROAD EMPLOYEES UNDER CERTAIN LABOR OR MERGER AGREEMENTS, ARE " REMUNERATION" OR "COMPENSATION" WITHIN THE MEANING OF THOSE TERMS AS USED IN THE RAILROAD UNEMPLOYMENT INSURANCE ACT, 45 U.S.C. 351-367, AND THAT THE CHICAGO AND NORTH WESTERN RAILWAY COMPANY, AMONG OTHERS, IS INDEBTED TO THE BOARD, AS OF THE DATE OF THE DECISION, FOR $33,776.37, REPRESENTING CERTAIN AMOUNTS THAT THE RAILROAD SHOULD HAVE REIMBURSED OR CONTRIBUTED TO THE BOARD UNDER 45 U.S.C. 352 (F) OR 358 (A).

YOU CONTEND THAT A STATUTE OF LIMITATIONS, 26 U.S.C. 6501, HAD RUN ON THE PARTICULAR PAYMENTS INVOLVED BEFORE THE DECISION WAS RENDERED AND THAT THE CASE HAD THUS BECOME MOOT AND THE DECISION OF NO EFFECT.

WE DISAGREE.

THE BOARD'S FINDING AND RESULTING CLAIM WERE MADE UNDER AUTHORITY OF THE RAILROAD UNEMPLOYMENT INSURANCE ACT, 45 U.S.C. 351-367. AND 45 U.S.C. 355 (C) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * THE BOARD MAY ALSO DESIGNATE ONE OF ITS OFFICERS OR EMPLOYEES TO RECEIVE EVIDENCE AND REPORT TO THE BOARD WHETHER OR NOT ANY PERSON OR COMPANY IS ENTITLED TO A REFUND OF CONTRIBUTIONS * * * AND SHALL FOLLOW SUCH PROCEDURE IF CONTRIBUTIONS ARE ASSESSED AND PAYMENT IS REFUSED * * *. IN ANY SUCH CASE THE BOARD OR THE PERSON SO DESIGNATED SHALL, BY PUBLICATION OR OTHERWISE, NOTIFY ALL PARTIES PROPERLY INTERESTED OF THEIR RIGHT TO PARTICIPATE IN THE PROCEEDING * * *.

"FINAL DECISION OF THE BOARD IN THE CASES PROVIDED FOR IN THE PRECEDING TWO PARAGRAPHS SHALL BE COMMUNICATED TO THE CLAIMANT AND TO THE OTHER INTERESTED PARTIES WITHIN FIFTEEN DAYS AFTER IT IS MADE. ANY PROPERLY INTERESTED PARTY NOTIFIED * * * MAY OBTAIN A REVIEW OF ANY SUCH DECISION BY WHICH HE CLAIMS TO BE AGGRIEVED * * * IN THE MANNER PROVIDED IN SUBSECTION (F) (45 U.S.C. 355 (F) ( * * *. SUBJECT ONLY TO SUCH REVIEW, THE DECISION OF THE BOARD * * * SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL CONCLUSIVELY ESTABLISH ALL RIGHTS AND OBLIGATIONS, ARISING UNDER THIS CHAPTER, OF EVERY PARTY NOTIFIED AS HEREINABOVE PROVIDED OF HIS RIGHT TO PARTICIPATE IN THE PROCEEDINGS.' SECTION 355 (F) PROVIDES THAT, AFTER EXHAUSTING HIS ADMINISTRATIVE REMEDIES WITH THE BOARD, A PERSON AGGRIEVED MAY, WITHIN NINETY DAYS, PETITION CERTAIN UNITED STATES COURTS OF APPEALS FOR REVIEW OF THE BOARD'S ACTION.

YOU FAILED TO PETITION IN THE MANNER PRESCRIBED IN 45 U.S.C. 355 (F) FOR REVIEW OF THE BOARD'S DECISION DETERMINING THE AMOUNT OF CONTRIBUTION REQUIRED. THUS, THE BOARD'S DECISION IS FINAL AND CONCLUSIVE FOR ALL PURPOSES AND CONCLUSIVELY ESTABLISHES ALL RIGHTS AND OBLIGATIONS OF YOUR COMPANY.

IN ACCORDANCE WITH 45 U.S.C. 355 (G/---

"FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE BOARD IN THE DETERMINATION OF * * * ANY OTHER MATTER PURSUANT TO SUBSECTION (C) OF THIS SECTION (EXCEPT FOR THE COURT REVIEW PROVIDED FOR IN 355 (F) (* * * SHALL BE * * * BINDING AND CONCLUSIVE FOR ALL PURPOSES AND UPON ALL PERSONS, INCLUDING THE COMPTROLLER GENERAL * * * AND SHALL NOT BE SUBJECT TO REVIEW IN ANY MANNER OTHER THAN THAT SET FORTH IN SUBSECTION (F) OF THIS SECTION.' AS INDICATED ABOVE, THE STATUTE MAKES FINDINGS OF THE RAILROAD RETIREMENT BOARD CONCLUSIVE UPON REVIEWING COURTS IF SUPPORTED BY EVIDENCE AND IN THE ABSENCE OF FRAUD. RICE V. RAILROAD RETIREMENT BOARD, 271 F2D 805, 806 (1959); RAILWAY EXPRESS AGENCY V. RAILROAD RETIREMENT BOARD, 250 F.2D 832 (1958).

IT MAY BE THAT YOUR CONTENTION THAT THE BOARD'S COLLECTION OF THE CLAIM IS BARRED, BECAUSE ITS ORDER IS MOOT AS TO PRIOR ASSESSMENTS, IS BASED, IN LARGE MEASURE, UPON THE CASE OF UNEXCELLED CHEMICAL CORP. V. UNITED STATES, 345 U.S. 59 (1953). IN UNEXCELLED, THE STATUTORY PERIOD WAS HELD TO HAVE RUN FROM THE DATE OF THE BREACH OF STATUTORY DUTY UNDER THE WALSH- HEALEY ACT RATHER THAN FROM THE DATE OF THE ADMINISTRATIVE DETERMINATION OF THE LIQUIDATED DAMAGES DUE THE GOVERNMENT. HOWEVER, WE BELIEVE THAT THE PRESENT SITUATION IS DISTINGUISHABLE BECAUSE IN THE UNEXCELLED CASE THE ADMINISTRATIVE PROCEEDING WAS NOT ESSENTIAL TO THE DETERMINATION OF THE EXISTENCE AND EXTENT OF LIABILITY WHEREAS HERE WE HAVE INVOLVED AN OBLIGATORY ADMINISTRATIVE DETERMINATION. SEE CROWN COAT FRONT CO., INC. V. UNITED STATES, 35 U.S.L.W. 4317, DECIDED BY THE SUPREME COURT OF THE UNITED STATES, APRIL 10, 1967, AND NAGER ELECTRIC CO., INC. V. UNITED STATES, 368 F.2D 847 (1966).

WHEN WE HAVE RECEIVED FROM ADMINISTRATIVE OFFICES CHECKS IN SUFFICIENT AMOUNTS TO SATISFY THE INDEBTEDNESS OF $33,776.37, PLUS INTEREST, AND THE CHECKS HAVE BEEN SET OFF AGAINST THE INDEBTEDNESS, WE WILL TAKE PROMPT ACTION TO SEE THAT YOUR COMPANY'S NAME IS REMOVED FROM THE LIST OF CONTRACTORS INDEBTED TO THE UNITED STATES.

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