B-135479, MAR. 26, 1958

B-135479, MAR. 26, 1958

TO MR. JOSEPH C. HOGAN:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1958, AND PRIOR CORRESPONDENCE, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,042.25 REPRESENTING AN ERRONEOUS RESIDUAL BENEFIT PAYMENT MADE TO YOU BY THE RAILROAD RETIREMENT BOARD IN THE MATTER OF YOUR DECEASED UNCLE, MR. JAMES EDWARD HICKEY. YOU REQUEST FURTHER EXPLANATION AS TO THE BASIS OF THE INDEBTEDNESS.

THE FILE SHOWS THAT YOU RECEIVED CHECK NO. 36,206,340 DATED FEBRUARY 13, 1953, IN THE AMOUNT OF $1,533.95, IN PAYMENT OF THE AMOUNTS OF $491.70 AND $1,042.25 THEN THOUGHT BY THE RAILROAD RETIREMENT BOARD TO BE DUE YOU AS THE LUMP-SUM PAYMENT AND THE RESIDUAL LUMP-SUM PAYMENT, RESPECTIVELY, BASED ON THE DEATH OF YOUR UNCLE, MR. JAMES EDWARD HICKEY. UPON A SUBSEQUENT AUDIT OF THE MATTER, IT WAS DETERMINED BY THE RAILROAD RETIREMENT BOARD THAT YOU WERE ENTITLED TO THE PAYMENT OF $491.70 AS THE LUMP-SUM DEATH PAYMENT BUT THAT YOU WERE NOT ENTITLED TO THE PAYMENT OF $1,042.25, OR ANY AMOUNT, AS A RESIDUAL LUMP-SUM PAYMENT.

IN A LETTER TO YOU DATED MARCH 6, 1953, COPY OF WHICH IS IN THE FILE, THE RAILROAD RETIREMENT BOARD EXPLAINED THE MATTER TO YOU IN THE FOLLOWING LANGUAGE:

"YOU WERE NOTIFIED IN OUR LETTER OF FEBRUARY 12, 1953 THAT YOU HAD BEEN AWARDED AN INSURANCE LUMP SUM IN THE AMOUNT OF $491.70 AND A RESIDUAL PAYMENT OF $1,042.25 BASED ON THE DEATH OF MR. JAMES E. HICKEY.

"A POST AUDIT HAS BEEN MADE OF YOUR CLAIM UNDER THE RAILROAD RETIREMENT ACT AND IT HAS BEEN DISCOVERED THAT YOU ARE NOT ENTITLED TO THE RESIDUAL PAYMENT OF $1,042.25 FOR THE REASON THAT MR. HICKEY HAD BEEN IN RECEIPT OF A RETIREMENT ANNUITY AND RECEIVED A TOTAL AMOUNT IN EXCESS OF $1,042.25.

"SECTION 5 (F) 2 OF THE RAILROAD RETIREMENT ACT AS AMENDED PROVIDES IN PART:

"WHENEVER IT SHALL APPEAR, WITH RESPECT TO THE DEATH OF AN EMPLOYEE ON OR AFTER JANUARY 1, 1947, THAT NO BENEFITS, OR NO FURTHER BENEFITS, OTHER THAN BENEFITS PAYABLE TO A WIDOW, WIDOWER, OR PARENT UPON ATTAINING AGE SIXTY-FIVE AT A FUTURE DATE, WILL BE PAYABLE UNDER THIS SECTION OR, PURSUANT TO SUBSECTION (K) OF THIS SECTION, UNDER SECTION 202 OF THE SOCIAL SECURITY ACT, AS AMENDED, THERE SHALL BE PAID TO SUCH PERSON OR PERSONS AS THE DECEASED EMPLOYEE MAY HAVE DESIGNATED BY A WRITING FILED WITH THE BOARD PRIOR TO HIS OR HER DEATH, OR IF THERE IS NO DESIGNATION, TO THE PERSON OR PERSONS IN THE ORDER PROVIDED IN PARAGRAPH (1) OF THIS SUBSECTION OR, IN THE ABSENCE OF SUCH PERSON OR PERSONS, TO HIS OR HER ESTATE, A LUMP SUM IN AN AMOUNT EQUAL TO THE SUM OF 4 PERCENTUM OF HIS OR HER COMPENSATION PAID AFTER DECEMBER 31, 1936, AND PRIOR TO JANUARY 1, 1947, AND 7 PERCENTUM OF HIS OR HER COMPENSATION AFTER DECEMBER 31, 1946 (EXCLUSIVE IN BOTH CASES OF COMPENSATION IN EXCESS OF $300 FOR ANY MONTH), MINUS THE SUM OF ALL BENEFITS PAID TO HIM OR HER, AND TO OTHERS DERIVING FROM HIM OR HER, DURING HIS OR HER LIFE, OR TO OTHERS BY REASON OF HIS OR HER DEATH, UNDER THIS ACT, AND PURSUANT TO SUBSECTION (K) OF THIS SECTION, UNDER SECTION 202 OF THE SOCIAL SECURITY ACT, AS AMENDED ...'

MR. HICKEY'S COMPENSATION FOR THE YEARS 1937 THROUGH 1946 AMOUNTED TO $22,401.76 AND AFTER 1946 AMOUNTED TO $9,112.54. THESE AMOUNTS WOULD PROVIDE A TOTAL LUMP SUM PRIOR TO DEDUCTIONS FOR OTHER BENEFITS OF $1,533.95. THE TOTAL RETIREMENT ANNUITY PAID TO MR. HICKEY DURING HIS LIFETIME AMOUNTED TO $2,547.48. IN CONSEQUENCE NO RESIDUAL AMOUNT REMAINED DUE OR PAYABLE.

WE REGRET THAT THE FACTS RELATED HEREIN WERE NOT NOTICED UNTIL AFTER THE AWARD WAS MADE TO YOU ON FEBRUARY 12, 1953. HOWEVER, WE HAVE NO ALTERNATIVE AT THIS TIME BUT TO REQUEST THAT YOU REFUND THE AMOUNT OF $1,042.25.'

IN ACCORDANCE WITH THE QUOTED PROVISIONS OF THE RAILROAD RETIREMENT ACT OF ANY RESIDUAL LUMP-SUM PAYMENT WHICH MIGHT HAVE BEEN PAYABLE TO ANY PERSON IN THIS MATTER WOULD BE COMPUTED AS FOLLOWS:

TABLE

4 PERCENT OF $22,401.76 (MR. RICKEY'S COMPENSATION FOR THE PERIOD AFTER DECEMBER 31, 1936, AND PRIOR TO JANUARY 1, 1947)

$896.07

7 PERCENT OF $9,112.54 (MR. HICKEY'S COMPENSATION FOR THE PERIOD AFTER DECEMBER 31, 1946)

$637.88

TOTAL $1,533.95

MINUS THE SUM OF BENEFITS WHICH WERE PAID TO MR. HICKEY DURING HIS LIFETIME

$2,547.48

SINCE THE BENEFITS PAID TO MR. HICKEY DURING HIS LIFETIME ($2,547.48) EXCEEDED THE AMOUNT OF THE POSSIBLE RESIDUAL LUMP-SUM PAYMENT AS ABOVE COMPUTED IN ACCORDANCE WITH THE STATUTE ($1,533.95), IT IS OBVIOUS THAT NO RESIDUAL LUMP-SUM PAYMENT WAS PROPERLY PAYABLE TO ANY PERSON.

IT IS WELL SETTLED THAT IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION IN THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR TORTIOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; 14 ID. 221; ID. 473; ID. 855; BASSO V. UNITED STATES, 239 U.S. 602; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES, 148 U.S. 573; HART V. UNITED STATES, 95 U.S. 316; COOKE V. UNITED STATES, 91 U.S. 389, 398. WITH SPECIFIC REFERENCE TO THE LIABILITY OF PAYEES TO REFUND ERRONEOUS PAYMENTS MADE TO THEM BY OFFICERS OR AGENTS OF THE UNITED STATES, IT IS STATED IN 29 COMP. GEN. 520:

"IT IS WELL SETTLED THAT THE UNITED STATES CAN NEVER BE BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE THROUGH ADMINISTRATIVE ERROR BY ITS OFFICERS, WITH OR WITHOUT JURISDICTION, AND WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW, AND THAT PARTIES RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRED NO RIGHT THERETO BUT ARE LIABLE EXAEQUO ET BONO TO REFUND THEM. SEE UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. WURTS, 303 U.S. 414; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24.'

IN VIEW OF THE FOREGOING, IT IS AGAIN REQUESTED THAT YOU PROMPTLY REMIT TO THIS OFFICE THE AMOUNT OF THE ERRONEOUS PAYMENT RECEIVED BY YOU ($1,042.25) OR THAT YOU MAKE A PROMPT INITIAL PAYMENT, TOGETHER WITH A DEFINITE PLAN FOR PAYMENT OF THE BALANCE WITHIN A REASONABLE TIME. CHECKS OR MONEY ORDERS SHOULD BE DRAWN TO THE ORDER OF THE "U.S. GENERAL ACCOUNTING OFFICE" AND MAILED TO THE DEBT SECTION, CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, 441 G STREET, N.W., WASHINGTON 25, D.C. ..END :