B-153205, JUN. 8, 1964

B-153205, JUN. 8, 1964

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

THIS REFERS TO PREVIOUS CORRESPONDENCE BETWEEN OUR OFFICES CONCERNING THE PROCEDURES TO BE FOLLOWED WHERE, BECAUSE OF THE DEATH OF PAYEES, THERE REMAINS FOR DISTRIBUTION THE PROCEEDS OF UNCASHED SOCIAL SECURITY CHECKS. SEE ENCLOSED COPIES OF B-140429, SEPTEMBER 9, 1959, AND MARCH 24, 1960, CONCERNING THE ESTATE OF DECEASED WAGE EARNER MARTIN GEIGER; B-153205, MARCH 26, 1964, CONCERNING THE ESTATE OF DECEASED WAGE EARNER FRED PETRO, SR.; AND LETTERS DATED DECEMBER 18, 1959, AND JULY 8, 1960, TO OUR OFFICE FROM YOUR DEPARTMENT IN THE MATTER OF THE MARTIN GEIGER ESTATE.

IN A MEETING HELD IN OUR OFFICE ON MAY 19, 1964, MESSRS. JERALD ALTMAN, WALTER C. STATHAM, AND CHARLES E. POTTER OF THE SOCIAL SECURITY ADMINISTRATION DISCUSSED THIS MATTER WITH REPRESENTATIVES OF OUR CLAIMS DIVISION AND OFFICE OF GENERAL COUNSEL. SPECIFICALLY, THE NAMED SOCIAL SECURITY REPRESENTATIVES FURNISHED COPIES OF PROPOSED NEW OPERATING POLICIES WHICH WILL BE INCORPORATED IN THE SOCIAL SECURITY ADMINISTRATION CLAIMS MANUAL AND DISCUSSED A CASE NOW PENDING FOR DECISION IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT CAPTIONED, ANTHONY J. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION AND WELFARE V. ANGELO GUARINO, EXECUTOR OF ESTATE OF CARMEN CICIRETTI, DECEASED, NO. 14,765. (MARCH 1964).

THE NEW OPERATING POLICIES PROVIDE IN PART THAT, IN THE FUTURE, THE SOCIAL SECURITY ADMINISTRATION WILL NOT ONLY PAY A LEGAL REPRESENTATIVE IF THERE IS EVIDENCE THAT ONE HAS BEEN APPOINTED, BUT STRESSES THAT INQUIRY WILL BE MADE AS TO WHETHER A REPRESENTATIVE HAS BEEN OR WILL BE APPOINTED. WE FAVOR THE PROPOSED POLICY AS WE FEEL THAT IMPLEMENTATION OF SUCH POLICY WILL LESSEN THE CHANCE FOR DUPLICATE PAYMENTS TO LEGAL REPRESENTATIVES IN THOSE CASES WHERE PAYMENTS HAVE PREVIOUSLY BEEN MADE TO MEMBERS OF THE FAMILY OF DECEASED WAGE EARNERS.

THE CITED CASE IS AN APPEAL FROM ANGELO CUARINO ET AL. V. CELEBREZZE U.S.D.C., E.D.PA., CIVIL NO. 32437, DECIDED OCTOBER 10, 1963. IN ITS CONSIDERATION, THE DISTRICT COURT STATED THE LEGAL ISSUE AS FOLLOWS: "MUST A WAGE EARNER BE ALIVE WHEN PAYMENT IS MADE TO CREATE A VESTED RIGHT IN HIS ESTATE FOR ALL MONTHLY SOCIAL SECURITY BENEFITS WHICH ACCRUED BEFORE HIS DEATH? " THE COURT WENT ON TO HOLD THAT AMOUNTS DUE BUT UNPAID THE WAGE EARNER AT THE TIME OF HIS DEATH WERE FOR PAYMENT TO THE EXECUTOR OF THE WAGE EARNER'S ESTATE RATHER THAN TO THE WAGE EARNER'S WIDOW. IT IS APPARENT THAT IF THE UNITED STATES IS SUCCESSFUL IN ITS APPEAL OF THIS ACTION, THE RESULT WILL AFFECT THE QUESTION OF ENTITLEMENT TO UNPAID SOCIAL SECURITY BENEFITS IN DISPUTES INVOLVING SPOUSES OF DECEASED WAGE EARNERS AND LEGAL REPRESENTATIVES OF THE ESTATE OF WAGE EARNERS. AS YOU KNOW, WE HAVE TAKEN THE POSITION THAT UNDER THE RULING OF THE COURTS IN BEERS V. FEDERAL SECURITY ADMINISTRATOR, 172 F.2D 34 (2D CIR. 1949) AND EWING V. GARDNER, 185 F.2D 781 (6TH CIR. 1950), THE ESTATE OF THE DECEDENT, REPRESENTED BY THE FULLY APPOINTED ADMINISTRATOR, IS RIGHTFULLY ENTITLED TO THE PROCEEDS OF UNCASHED SOCIAL SECURITY CHECKS.

WE HAVE BEEN ADVISED THAT FINAL ARGUMENTS HAVE BEEN MADE IN CELEBREZZE V. GUARINO, SUPRA, AND NOTHING REMAINS SAVE THE THIRD CIRCUIT COURT'S OPINION IN THAT CASE. IN VIEW OF THE EFFECT OF THE POSSIBLE HOLDING, THE INSTRUCTIONS IN OUR DECISION B-153205, MARCH 26, 1964, REGARDING RECOUPMENT FROM THE WAGE EARNER'S WIDOW AND PAYMENT TO THE ADMINISTRATOR OF HIS ESTATE, SHOULD BE HELD IN ABEYANCE PENDING THE FINAL DISPOSITION OF THAT CASE.