B-94805, JANUARY 12, 1951, 30 COMP. GEN. 298

B-94805, JANUARY 12, 1951, 30 COMP. GEN. 298

CERTIFYING OFFICER - ERRONEOUS PAYMENTS - RELIEF PROCEDURE UNDER THE ACT OF DECEMBER 29, 1941, VESTING AUTHORITY IN THE COMPTROLLER GENERAL TO RELIEVE CERTIFYING OFFICERS OF LIABILITY FOR ERRONEOUS PAYMENTS MADE UNDER CERTAIN CONDITIONS, REQUESTS FOR RELIEF OF CERTIFYING OFFICERS IN ALL ERRONEOUS PAYMENT CASES, INCLUDING COMPUTATIONAL ERROR CASES, IN WHICH REASONABLE EFFORTS TO ENFORCE COLLECTION FROM PAYEES HAVE BEEN EXHAUSTED SHOULD BE SUBMITTED TO THIS OFFICE PRIOR TO SEEKING LEGISLATIVE RELIEF, WITH A STATEMENT OF THE GROUNDS RELIED ON FOR SUCH RELIEF OR THE AMELIORATING CIRCUMSTANCES UPON WHICH THE CONGRESS WOULD BE URGED TO GRANT RELIEF IN THE EVENT RELIEF IS DENIED BY THIS OFFICE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, JANUARY 12, 1951:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 21, 1950, FROM THE DEPUTY ADMINISTRATOR OF VETERANS AFFAIRS, REQUESTING ADVICE AS TO WHETHER ALL CASES OF VOUCHER OVERPAYMENTS INVOLVING THE LIABILITY OF CERTIFYING OFFICERS SHOULD BE SUBMITTED TO THIS OFFICE FOR CONSIDERATION UNDER THE RELIEF PROVISIONS OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875, 31 U.S.C. 82C, PRIOR TO SEEKING LEGISLATIVE RELIEF. SPECIFICALLY, THE LETTER ASKS WHETHER ERRONEOUS PAYMENTS INVOLVING INCORRECT COMPUTATIONS ON THE PART OF THE CERTIFYING OFFICERS ARE FOR CONSIDERATION UNDER SUCH RELIEF PROVISIONS.

IN THE HOUSE AND SENATE REPORT ( REPORTS NOS. 1263 AND 916, 77TH CONGRESS, ST SESSION) ON THE MEASURE WHICH BECAME THE ACT OF DECEMBER 29, 1941, SUPRA, THE COMMITTEES OF CONGRESS CONSIDERING THE SAME QUOTED WITH APPROVAL, AND LARGELY ADOPTED AS THEIR REPORT, THE ANNUAL REPORT OF THIS OFFICE FOR THE FISCAL YEAR 1940 IN REGARD TO THE FIXING OF THE DUTIES AND RESPONSIBILITIES OF CERTIFYING AND DISBURSING OFFICERS. WITH REGARD TO RELIEF OF CERTIFYING OFFICERS, IT IS STATED THEREIN AS FOLLOWS:

IN SOME CASES, OF COURSE, UNAUTHORIZED PAYMENTS WILL OCCUR REGARDLESS OF THE DEGREE OF CARE AND DILIGENCE EXERCISED BY CERTIFYING AND DISBURSING OFFICERS AND ENTIRELY WITHOUT THEIR FAULT OR NEGLIGENCE.

ALSO, AFTER COMMENTING ON THE THEN NUMEROUS AND INCREASING VOLUME OF ENACTMENTS FOR RELIEF OF SUCH OFFICERS, AND THE OMNIBUS CHARACTER OF SUCH MEASURES IN THAT THEY OFTEN EMBRACED THE RELIEF OF NUMEROUS OFFICERS IN SINGLE ENACTMENTS, IT WAS INDICATED THAT, IF THE RESPONSIBILITIES OF THE DISBURSING AND CERTIFYING OFFICERS WERE MORE CLEARLY DEFINED, AND THE COMPTROLLER GENERAL VESTED WITH AUTHORITY TO GRANT RELIEF WHERE FREEDOM FROM FAULT OR NEGLIGENCE IS ESTABLISHED, THE BILLS FOR LEGISLATIVE RELIEF GREATLY WOULD DIMINISH. IN THIS REGARD THE REPORT CONTAINS THE FOLLOWING LANGUAGE:

FURTHERMORE, AS THE GENERAL ACCOUNTING OFFICE WOULD BE PREPARED TO MAKE A CAREFUL AND PROMPT ANALYSIS OF THE MERITS OF EACH INDIVIDUAL REQUEST FOR RELIEF, IT IS BELIEVED THAT THE HANDLING OF SUCH MATTERS BY THE COMPTROLLER GENERAL WOULD MINIMIZE THE LIKELIHOOD THAT RELIEF WOULD BE GRANTED IN OTHER THAN CLEARLY MERITORIOUS CASES. THEN, AS TO THE LESS MERITORIOUS CASES WHICH MIGHT BE PRESENTED TO THE CONGRESS FOR CONSIDERATION AFTER THE COMPTROLLER GENERAL HAD DENIED RELIEF THEREIN, THERE COULD BE MADE AVAILABLE TO THE CONGRESS A FULL STATEMENT OF THE FACTS AND OF THE REASONS FOR WITHHOLDING RELIEF. THUS, NOT ONLY WOULD THE NUMBER OF APPEALS TO THE CONGRESS FOR RELIEF IN SUCH CASES BE REDUCED TO A MINIMUM BUT THERE WOULD BE AVAILABLE TO THE CONGRESS AN ADEQUATE RECORD FOR ITS USE IN ASSESSING THE MERITS OF SUCH REQUESTS AS WOULD BE PRESENTED TO IT. (ITALICS SUPPLIED.)

THE CONGRESS IN ENACTING THE ACT OF DECEMBER 29, 1941, AUTHORIZED THE COMPTROLLER IN HIS DISCRETION TO RELIEVE CERTIFYING OFFICERS WHENEVER HE FINDS: "/1) THAT THE CERTIFICATION WAS BASED ON OFFICIAL RECORDS AND THAT SUCH CERTIFYING OFFICER OR EMPLOYEE DID NOT KNOW, AND BY REASONABLE DILIGENCE AND INQUIRY COULD NOT HAVE ASCERTAINED, THE ACTUAL FACTS, OR (2) THAT THE OBLIGATION WAS INCURRED IN GOOD FAITH, THAT THE PAYMENT WAS NOT CONTRARY TO ANY STATUTORY PROVISION SPECIFICALLY PROHIBITING PAYMENTS OF THE CHARACTER INVOLVED, AND THAT THE UNITED STATES HAS RECEIVED VALUE FOR SUCH PAYMENT.'

IT THUS APPEARS EVIDENT THAT THE PURPOSE OF THE ACT IN THIS REGARD WAS TO FREE THE CONGRESS FROM THE NECESSITY OF CONSIDERING NUMEROUS RELIEF BILLS FOR ACCOUNTABLE OFFICERS; THAT MATTERS OF RELIEF OF CERTIFYING OFFICERS, GENERALLY, WERE FIRST TO BE PRESENTED TO THIS OFFICE, AND THAT ONLY IN THOSE CASES WHERE IT DENIED RELIEF WOULD THE INTERVENTION OF CONGRESS BE NECESSARY, IN WHICH EVENT AN ANALYSIS OF THE MERITS OF THE REQUESTS FOR RELIEF WOULD BE MADE AVAILABLE TO IT BY THIS OFFICE. WHILE THE ACT OF APRIL 28, 1942, 56 STAT. 244, 31 U.S.C. 82F, SHIFTED FROM THE DISBURSING OFFICER, TO THE CERTIFIED VOUCHERS, THERE IS NOTHING THEREIN TO INDICATE ANY INTENT TO PREVENT THIS OFFICE FROM GRANTING RELIEF AS TO ERRORS OF COMPUTATION BY CERTIFYING OFFICERS WHERE OTHERWISE WARRANTED UNDER THE ACT OF DECEMBER 29, 1941, SUPRA.

THE LEGISLATIVE PLAN THUS APPEARS TO BE THAT THIS OFFICE FIRST CONSIDER REQUESTS FOR RELIEF OF ACCOUNTABLE OFFICERS UNDER THE GENERAL DISCRETION VESTED IN IT BY THE 1941 ACT, AND FOR THE AGENCIES NOT TO TAKE UP THE MATTER WITH A VIEW TO LEGISLATIVE RELIEF UNTIL AFTER RELIEF HAS BEEN DENIED BY THIS OFFICE, AND AFTER CONSIDERATION OF THE REASONS FOR SUCH DENIAL. ACCORDINGLY, AND SINCE IT APPEARS THAT EXISTING REMEDIES UNDER LAW SHOULD FIRST BE EXHAUSTED BEFORE RECOURSE IS HAD TO INITIATING SPECIAL AND POSSIBLE UNNECESSARY LEGISLATION, IT IS THE VIEW HERE THAT, BEFORE ANY AGENCY WHOSE DISBURSEMENTS ARE WITHIN THE SCOPE OF THE ACT OF DECEMBER 29, 1941, UNDERTAKES TO RECOMMEND LEGISLATIVE RELIEF AS TO ANY CERTIFYING OFFICER FOR SUCH A DISBURSEMENT, REASONABLE EFFORTS, WHERE PRACTICABLE, TO ENFORCE COLLECTION OF THE IMPROPER PAYMENT FROM THE PAYEE SHOULD FIRST BE EXHAUSTED, SINCE COLLECTION WOULD REMOVE THE NEED FOR RELIEF. AND, IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO CIRCULAR LETTER OF THIS OFFICE B-97385, DATED AUGUST 11, 1950, RELATIVE TO SECURING THE COOPERATION OF THIS OFFICE IN EFFECTING COLLECTION OF OVERPAYMENTS OR ILLEGAL PAYMENTS. IN THE EVENT OF FAILURE TO EFFECT COLLECTION FROM THE PAYEE, IT IS CONSIDERED THAT THE NEXT STEP SHOULD BE THE PRESENTATION OF A REQUEST FOR RELIEF TO THIS OFFICE PURSUANT TO THE RELIEF PROVISIONS OF SAID ACT OF DECEMBER 29, 1941. SINCE, PRESUMABLY, SUCH RELIEF SHOULD BE SOUGHT ONLY IN MERITORIOUS CASES, AND AS THE REASONS FOR CONSIDERING IT MERITORIOUS MAY NOT BE DETERMINABLE BY THIS OFFICE FROM A MERE EXAMINATION OF THE VOUCHER, THE GROUNDS RELIED ON FOR RELIEF OR THE AMELIORATING CIRCUMSTANCES UPON WHICH THE CONGRESS WOULD BE URGED TO GRANT RELIEF SHOULD BE SHOWN IN THE REQUEST FOR RELIEF BY THIS OFFICE. ALSO, IT IS THE VIEW OF THIS OFFICE THAT ALL CASES, INCLUDING THOSE INVOLVING COMPUTATIONAL ERRORS, WHERE THE CONGRESS WOULD BE URGED TO GRANT RELIEF, FIRST SHOULD BE PRESENTED HERE FOR CONSIDERATION, EVEN THOUGH IT MAY ADMINISTRATIVELY BE CONSIDERED DOUBTFUL WHETHER THE CIRCUMSTANCES ARE SUFFICIENT TO ENABLE THIS OFFICE TO GRANT RELIEF. THOUGH THIS OFFICE MAY BE COMPELLED TO DENY RELIEF, IT WILL BE IN A POSITION TO REPORT THE FACTS TO THE CONGRESS TOGETHER WITH ITS VIEWS AS TO THE MERITS OF ANY OFFICERS. ALSO, THIS OFFICER WILL BE IN A POSITION TO MAKE RECOMMENDATIONS FOR THE GRANTING OF FURTHER DISCRETIONARY AUTHORITY IF MATTERS CONSIDERED SUFFICIENTLY MERITORIOUS OFTEN ARISE IN WHICH IT IS FOUND NECESSARY TO DENY RELIEF BECAUSE THE DISCRETIONARY AUTHORITY PREVIOUSLY DELEGATED IS INSUFFICIENT.