B-163295, APRIL 3, 1968, 47 COMP. GEN. 522

B-163295, APRIL 3, 1968, 47 COMP. GEN. 522

BANKRUPTCY - WAGE EARNERS' PLANS - IMMUNITY OF UNITED STATES EFFECT ALTHOUGH IN UNITED STATES V KRAKOVER, 377 F.2D 104, THE COURT HELD THAT UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY A CHAPTER 13, BANKRUPTCY PROCEEDING, WAGE EARNER'S PLAN CASE, IS NOT ENFORCEABLE AGAINST THE UNITED STATES, THE COURT CONCLUDED THAT THIS SHOULD NOT DEPRIVE FEDERAL EMPLOYEES OF CHAPTER 13 BENEFITS AND THAT PAYMENT TO THE TRUSTEE OF A PART OF THE WAGES OF AN EMPLOYEE UNDER AN APPROPRIATE ORDER WILL PROTECT THE TRUSTEE AND CREDITORS WITHOUT INFRINGING ON THE IMMUNITY OF THE UNITED STATES. THEREFORE, THE PROCEDURE UNDER WHICH ACCOUNTING AND FINANCE OFFICERS ARE REQUIRED TO PAY PART OF THE WAGES OF AN EMPLOYEE IN RESPONSE TO A COURT ORDER ISSUED IN A CHAPTER 13, WAGE EARNER'S PLAN CASE--- BINDING ON THE EMPLOYEE--- MAY BE CONTINUED WITHOUT VIOLATING 31 U.S.C. 203, PROHIBITING THE ASSIGNMENT OF CLAIMS AGAINST THE UNITED STATES, OR WITHOUT DEPRIVING THE GOVERNMENT OF GOOD ACQUITTANCE. BANKRUPTCY - WAGE EARNERS' PLANS - GOVERNMENT BOTH DEBTOR AND CREDITOR WHERE THE UNITED STATES IS BOTH DEBTOR AND CREDITOR AT THE TIME A CIVILIAN EMPLOYEE OR A MEMBER OF THE UNIFORMED SERVICES FILES A CHAPTER 13, WAGE EARNER'S PLAN CASE, ABSENT A JUDICIAL DETERMINATION TO THE CONTRARY, THE GOVERNMENT'S PRIORITY UNDER 31 U.S.C. 191, MAY BE ASSERTED IN A CHAPTER 13 WAGE EARNER'S TIME EXTENSION PLAN CASE, THE SET-OFF TO BE ACCOMPLISHED IN ACCORDANCE WITH TITLE 4 OF THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL SECTION 7520.10, UNLESS THE WAGE EARNER IS NOT INSOLVENT. HOWEVER, THE FILING OF A WAGE EARNER'S PLAN WOULD, FOR PURPOSES OF SET-OFF, BE CONSIDERED PRIMA FACIE EVIDENCE OF INSOLVENCY.

TO THE SECRETARY OF DEFENSE, APRIL 3, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 9, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ASTO WHETHER, IN VIEW OF THE COURT'S DECISION IN UNITED STATES V KRAKOVER, 377 F.2D 104 (1967), THE MILITARY DEPARTMENTS MAY CONTINUE A PROCEDURE REQUIRING DISBURSING OFFICERS TO RESPOND TO COURT ORDERS ISSUED IN CHAPTER 13, WAGE EARNER'S PLAN CASES. THE QUESTION INVOLVED, TOGETHER WITH A DISCUSSION PERTAINING THERETO, ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 405.

THESE SPECIFIC QUESTIONS ARE AS FOLLOWS: 1. IN VIEW OF THE DISCUSSION IN UNITED STATES V KRAKOVER, 10 CIR. NO. 8786, MARCH TERM, 1967, 377 F.2D 104, MAY THE AIR FORCE CONTINUE A PROCEDURE REQUIRING ACCOUNTING AND FINANCE OFFICERS TO RESPOND TO COURT ORDERS ISSUED IN CHAPTER 13 WAGE EARNER'S PLAN CASES (11 U.S.C. 1058 (2) ( AS A MATTER OF POLICY, EVEN THOUGH, AS A MATTER OF LAW, UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY SUCH ORDERS ARE NOT ENFORCEABLE AGAINST THE UNITED STATES? 2. IN A CHAPTER 13 WAGE EARNER'S PLAN CASE, WHERE THE UNITED STATES IS BOTH DEBTOR AND CREDITOR TO THE WAGE EARNER, DOES THE RIGHT OF SET OFF EXIST, NOTWITHSTANDING THE FACT THAT THE WAGE EARNER'S PLAN HAS BEEN FILED?

THE QUESTION INVOLVED IN THE KRAKOVER CASE WAS WHETHER IN A CHAPTER 13 BANKRUPTCY PROCEEDING, WAGE EARNER'S PLAN CASE (11 U.S.C. 1001-1086) THE UNITED STATES CAN BE ORDERED TO PAY TO THE TRUSTEE PART OF THE WAGES OF ONE OF ITS EMPLOYEES. IN REVERSING THE DISTRICT COURT'S DECISION, THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT HELD THAT COURT ORDERS UNDER CHAPTER 13 OF THE BANKRUPTCY ACT MAY NOT BE ENFORCED AGAINST THE UNITED STATES BECAUSE CONGRESS HAS NOT WAIVED THE IMMUNITY OF THE UNITED STATES TO SUIT IN SUCH SITUATIONS.

IT IS STATED IN COMMITTEE ACTION NO. 405 THAT THE COURT'S DECISION RAISES CERTAIN QUESTIONS CONCERNING THE CONTINUANCE OF THE PRESENTAIR FORCE POLICY PUBLISHED IN PARAGRAPH 30316C (6), AIR FORCE MANUAL 177 108, REQUIRING THE ACCOUNTING AND FINANCE OFFICERS TO RESPOND TO COURT ORDERS ISSUED IN CHAPTER 13, WAGE EARNER'S PLAN CASES.

A WAGE EARNER'S PLAN UNDER CHAPTER 13 IS ONE RELATING TO FUTURE EARNINGS OF THE DEBTOR AND RELIEF IS PREDICATED UPON THE PRIMARY CONCEPT THAT WHILE THE DEBTOR IS UNABLE TO PAY HIS DEBTS, HE HAS MADE A PLAN TO EFFECT A COMPOSITION OR EXTENSION OUT OF HIS FUTURE EARNINGS. THE PLAN MUST PROVIDE FOR THE SUBMISSION OF SUCH EARNINGS OR WAGES TO THE SUPERVISION AND CONTROL OF THE COURT FOR THE PURPOSE OF ENFORCING THE PLAN (11 U.S.C. 1046). SEE 10 COLLIER ON BANKRUPTCY, 14TH ED., PAGES 43 AND 74. WHEN THE PLAN IS CONFIRMED BY THE COURT, ITS PROVISIONS ARE BINDING UPON THE DEBTOR AND ALL CREDITORS OF THE DEBTOR, WHETHER OR NOT THEY ARE AFFECTED BY THE PLAN OR HAVE ACCEPTED IT OR HAVE FILED THEIR CLAIMS, OR WHETHER OR NOT THEIR CLAIMS HAVE BEEN SCHEDULED OR ALLOWED, OR ARE ALLOWABLE (11 U.S.C. 1057). UNDER 11 U.S.C. 1058, THE COURT HAS AUTHORITY TO ISSUE SUCH ORDERS AS MAY BE REQUISITE TO EFFECTUATE THE PROVISIONS OF THE PLAN INCLUDING ORDERS DIRECTED TO ANY EMPLOYER OF THE DEBTOR.

THE COMMITTEE ACTION STATES THAT IF VOLUNTARY ASSIGNMENTS ARE LEGALLY OBJECTIONABLE, IT IS CONSIDERED THAT THESE OBJECTIONS CAN BE AVOIDED BY THE SIMPLE DEVICE OF CHANGING THE ADDRESS ON THE CHECK WHILE THE NAME OF THE EMPLOYEE AS PAYEE WOULD REMAIN UNCHANGED. THIS PRACTICE IS APPARENTLY BEING FOLLOWED AS THERE INDICATED. THE AIR FORCE ACCOUNTING AND FINANCE OFFICER CAN CHANGE THE MAILING ADDRESS UPON THE REQUEST OF THE MEMBER AND, AS THERE STATED, THIS REQUEST MAY BE TRANSMITTED BY THE EMPLOYEE HIMSELF, HIS ATTORNEY, THE TRUSTEE OR THE COURT.

IT IS FURTHER STATED THAT THE ABOVE PROCEDURE HAS WORKED SATISFACTORILY IN THE PAST AND THE AIR FORCE DESIRES TO CONTINUE THIS PROCEDURE AS A MATTER OF POLICY. IN THIS CONNECTION, THE COMMITTEE ACTION NOTES THE LAST PARAGRAPH OF THE COURT'S DECISION IN THE KRAKOVER CASE WHICH READS AS FOLLOWS:

(3) THIS CONCLUSION DOES NOT DEPRIVE FEDERAL EMPLOYEES OF THE BENEFITS OF CHAPTER 13. THE COMPULSION REQUIRED TO AFFECT THE PAYMENT TO THE TRUSTEE OF A PART OF THE WAGES AS EARNED CAN BE EXERCISED AGAINST THE DEBTOR BY AN APPROPRIATE ORDER TO ENDORSE AND TURN OVER THE PAY CHECKS. SUCH AN ORDER WILL PROTECT THE TRUSTEE AND THE CREDITORS AND WILL NOT INFRINGE ON THE IMMUNITY OF THE UNITED STATES.

OUR LETTER OF OCTOBER 24, 1941, B-20950, CITED IN COMMITTEE ACTION, WAS IN RESPONSE TO A REQUEST FROM THE ATTORNEY GENERAL FOR THE VIEWS OF THIS OFFICE WITH RESPECT TO A CHAPTER 13 BANKRUPTCY PROCEEDING INVOLVING TWO EMPLOYEES OF THE GOVERNMENT. WE EXPRESSED THE VIEW THAT, FOR THE REASONS THERE STATED, THE COURT IS WITHOUT JURISDICTION TO ENTER A JUDGMENT REQUIRING THE UNITED STATES TO MAKE DEDUCTIONS FROM THE WAGES OF THE DEBTORS FOR REMISSION TO THE TRUSTEE IN BANKRUPTCY. WE DID SUGGEST, HOWEVER, THAT WE WOULD HAVE NO OBJECTION TO A PROCEDURE WHEREBY THE DEBTOR WOULD EXECUTE A POWER OF ATTORNEY AUTHORIZING THE TRUSTEE TO RECEIVE AND ENDORSE CHECKS IN THE DEBTOR'S NAME. THIS MATTER WAS FURTHER CONSIDERED IN LETTER OF JANUARY 13, 1942, B-20950, TO THE ATTORNEY GENERAL, WHEREIN WE EXPRESSED THE VIEW THAT THE PROCEDURE RECOMMENDED IN OUR LETTER OF OCTOBER 24, 1941, WAS NOT IN CONFLICT WITH SECTION 3477, REVISED STATUTES, 31 U.S.C. 203.

SECTION 3477, REVISED STATUTES, 31 U.S.C. 203, PROHIBITS THE ASSIGNMENTS OF CLAIMS AGAINST THE GOVERNMENT EXCEPT UNDER SPECIFIED CONDITIONS AS THEREIN INDICATED. IT FREQUENTLY HAS BEEN HELD THAT THE SOLE PURPOSE OF 31 U.S.C. 203 WAS TO PROTECT THE GOVERNMENT AND NOT THE PARTIES TO THE ASSIGNMENT, AND THAT THE GOVERNMENT COULD WAIVE ITS PROTECTION IF IT SO DESIRED AND RECOGNIZE AN ASSIGNMENT OTHERWISE PROHIBITED THEREBY. ALSO, NUMEROUS CASES HAVE HELD THAT ASSIGNMENTS BY OPERATION OF LAW, ASSIGNMENTS BY WILL, ASSIGNMENTS IN BANKRUPTCY, AND VOLUNTARY ASSIGNMENTS BY INSOLVEENT DEBTORS FOR THE BENEFIT OF THEIR CREDITORS WERE NOT IN VIOLATION OF R.S. 3477. SEE UNITED STATES V SHANNON, 342 U.S. 288 (1951); PRICE V FORREST, 173 U.S. 410 (1898); GOODMAN V NIBLACK, 102 U.S. 556 (1880).

THE ABOVE-CITED CASES INVOLVED ACTIONS OTHER THAN WAGE EARNER'S PLAN UNDER CHAPTER 13 OF THE BANKRUPTCY ACT. HOWEVER, SINCE THE PLANS UTILIZED UNDER CHAPTER 13 INVOLVE VOLUNTARY ASSIGNMENTS FOR THE BENEFIT OF CREDITORS, THE PRINCIPLES EXPOUNDED IN THOSE CASES ARE CLEARLY APPLICABLE TO SUCH PLANS. EVEN IF THE PROVISIONS OF 31 U.S.C. 203 WERE DEEMED APPLICABLE TO THE COURT'S ORDERS HERE IN QUESTION, IT IS NOTED THAT, IN LOPEZ V UNITED STATES, 24 CT. CL. 84 (1889), THE UNITED STATES COURT OF CLAIMS HELD THAT UNDISPUTED ASSIGNMENTS OF CLAIMS AND POWERS OF ATTORNEY VOID UNDER 31 U.S.C. 203 MAY BE RECOGNIZED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT; THAT ACCOUNTS MAY BE STATED IN FAVOR OF THE ASSIGNEES; AND THAT PAYMENTS MADE THEREON WILL BE CONCLUSIVE UPON THE ASSIGNORS AND DISCHARGE THE GOVERNMENT'S INDEBTEDNESS TO SUCH ASSIGNORS.

IN VIEW OF THE FOREGOING, IT SEEMS APPARENT THAT COMPLIANCE WITH COURT ORDERS IN CASES ARISING UNDER CHAPTER 13 OF THE BANKRUPTCY ACT WOULD GIVE THE GOVERNMENT GOOD ACQUITTANCES AGAINST ITS EMPLOYEES SINCE THE COURT ORDERS ARE BINDING UPON THEM. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION 2, IT IS STATED IN THE COMMITTEE ACTION THAT A COLLATERAL QUESTION ARISES IN THOSE INSTANCES WHERE THE UNITED STATES IS BOTH DEBTOR AND CREDITOR; THAT IS, THE WAGE EARNER AT THE TIME OF FILING HIS PLAN MAY BE DRAWING SALARY OR WAGES AS AN EMPLOYEE, AND AT THE SAME TIME HE MAY OWE A DEBT TO THE UNITED STATES. IN SOME CASES, IT IS STATED, A SCHEDULE OF REPAYMENT OF THE DEBT MAY BE IN OPERATION AND THE QUESTION OF CONTINUATION OF THE RIGHT TO SET-OFF ARISES.

DEBTS WHICH HAVE A PRIORITY UNDER 11 U.S.C. 104 (A) OF THE BANKRUPTCY ACT, REFERRED TO IN 11 U.S.C. 1059 (6) ARE,")5) DEBTS OWING TO ANY PERSON, INCLUDING THE UNITED STATES, WHO BY THE LAWS OF THE UNITED STATES IN (IS) ENTITLED TO PRIORITY.' THE LAW WHICH ENTITLES THE UNITED STATES TO A PRIORITY IS 31 U.S.C. 191, WHICH PROVIDES AS FOLLOWS:

WHENEVER ANY PERSON INDEBTED TO THE UNITED STATES IS INSOLVENT, OR WHENEVER THE ESTATE OF ANY DECEASED DEBTOR, IN THE HANDS OF THE EXECUTORS OR ADMINISTRATORS, IS INSUFFICIENT TO PAY ALL THE DEBTS DUE FROM THE DECEASED, THE DEBTS DUE TO THE UNITED STATES SHALL BE FIRST SATISFIED; AND THE PRIORITY ESTABLISHED SHALL EXTEND AS WELL TO CASES IN WHICH A DEBTOR, NOT HAVING SUFFICIENT PROPERTY TO PAY ALL HIS DEBTS, MAKES A VOLUNTARY ASSIGNMENT THEREOF, OR IN WHICH THE ESTATE AND EFFECTS OF AN ABSCONDING, CONCEALED, OR ABSENT DEBTOR ARE ATTACHED BY PROCESS OF LAW, AS TO CASES IN WHICH AN ACT OF BANKRUPTCY IS COMMITTED.

IN IN RE BELKIN, 358 F.2D 378 (1966), CITED IN THE COMMITTEE ACTION, THERE WAS INVOLVED THE QUESTION WHETHER THE UNITED STATES WAS ENTITLED TO A PRIORITY UNDER 31 U.S.C. 191 WHERE THE DEBTOR FILED A CHAPTER 13 PETITION AND A COMPOSITION PLAN--- AS DISTINGUISHED FROM AN EXTENSION OF TIME PLAN--- WAS APPROVED BY THE REFEREE IN BANKRUPTCY. IN THAT CASE, THE DEBTOR SHOWED THAT HE WAS INSOLVENT, THAT IS HIS DEBTS EXCEEDED HIS ASSETS. THE DEBT DUE THE UNITED STATES AROSE ON AN OBLIGATION OF THE DEBTOR TO A BANKING INSTITUTION ON A FEDERAL HOUSING ADMINISTRATION INSURED LOAN. IN REVERSING THE JUDGMENT OF THE DISTRICT COURT, THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CONCLUDED THAT "GIVING THE PRIORITY ACT A LIBERAL CONSTRUCTION, WE HOLD THAT THE DEBTOR HERE WAS INSOLVENT AND THAT THERE WAS A VOLUNTARY ASSIGNMENT SUFFICIENT TO PRECIPITATE THE PRIORITY OF THE UNITED STATES UNDER 31 U.S.C., SECTION 191.'

THE VIEW IS EXPRESSED IN COMMITTEE ACTION NO. 405 THAT ON THE BASIS OF THE HOLDING IN THE BELKIN CASE, IT APPEARS THAT IF THE DEBTOR IS INSOLVENT AND A COMPOSITION AGREEMENT IS INVOLVED, THE UNITED STATES HAS AN ASSERTABLE PRIORITY CLAIM. DOUBT ARISES WHETHER THE PRIORITY MAY BE ASSERTED IN A CASE INVOLVING AN EXTENSION PLAN, IN THE ABSENCE OF ANY OTHER DIRECT AND POSITIVE EVIDENCE OF INSOLVENCY. IN THIS CONNECTION, A "COMPOSITION" UNDER THE BANKRUPTCY ACT IS DISTINGUISHED FROM "EXTENSION" IN THAT THE FORMER IS A PROCEEDING WHEREIN THE DEBTOR SETTLES HIS INDEBTEDNESS IN AN AGREED AMOUNT LESS THAN THE AMOUNT OWED, WHEREAS THE LATTER IS A PROCEEDING WHEREIN THE DEBTOR MERELY OBTAINS AN EXTENSION OF THE TIME WITHIN WHICH TO PAY IN FULL. SEE 8B C.J.S. BANKRUPTCY, SECTION 653. THE PROVISIONS OF CHAPTER 13 APPLY IN THE SAME WAY TO ALL PLANS, WHETHER THE PLAN IS BY WAY OF COMPOSITION OR EXTENSION OR BOTH. SEE 10 COLLIER ON BANKRUPTCY, 14TH ED., PAGE 43. IT IS STATED IN THE COMMITTEE ACTION THAT THE CURRENT PRACTICE IS TO ASSERT PRIORITIES IN THE FILING OF PROOFS OF CLAIM IN WAGE EARNER'S CASES, CITING 11 U.S.C. 104 (A) (5); 31 U.S.C. 191; AND 11 U.S.C. 1059 (6). IT IS REPORTED THAT NO DISTINCTION IS CURRENTLY BEING MADE WITH RESPECT TO THE MATTER OF WHETHER OR NOT INSOLVENCY EXISTS.

SINCE NO SPECIFIC INSTRUCTIONS APPEAR TO HAVE BEEN ISSUED WITH RESPECT TO SET-OFF IN WAGE EARNER'S CASES, THE COMMITTEE ACTION PROPOSES, AS A MATTER OF POLICY, THAT THE FOLLOWING SHOULD PERTAIN:

(1) IN ALL CASES OF BANKRUPTCY OR WAGE EARNER'S PLAN, THE PROOFS OF CLAIM WILL ASSERT THE PRIORITY IN THE UNITED STATES;

(2) IF FUNDS OR CREDITS ARE DUE AND OWING THE BANKRUPT, SET-OFF WILL BE ACCOMPLISHED IN ACCORDANCE WITH 40 GAO SEC. 7520.10; AND

(3) IF FUNDS OR CREDITS ARE DUE AND OWING THE WAGE EARNER IN A CHAPTER 13 CASE, SET-OFF WILL BE ACCOMPLISHED UNLESS THERE IS AFFIRMATIVE EVIDENCE THAT THE WAGE EARNER IS NOT INSOLVENT. THE FILING OF A WAGE EARNER'S PLAN WOULD, FOR PURPOSES OF SET-OFF, BE CONSIDERED PRIMA FACIE EVIDENCE OF INSOLVENCY.

WE NOTE THAT THE DISTRICT COURT IN ITS DECISION IN THE BELKIN CASE, 232 F.SUPP. 850 (1964), CITED A NUMBER OF CASES WHERE THE COURTS HAVE HELD THAT THE GOVERNMENT'S PRIORITY UNDER 31 U.S.C. 191 DOES NOT APPLY IN CERTAIN BANKRUPTCY CASES. THE DISTRICT COURT'S DECISION ALSO CITES AS AUTHORITY A STAEMENT IN 3 COLLIER ON BANKRUPTCY, 14TH ED., PAGE 2228. HOWEVER, THE COURT OF APPEALS APPARENTLY WAS NOT IMPRESSED WITH THIS VIEW SINCE IT RECOGNIZED THE GOVERNMENT'S PRIORITY UNDER 31 U.S.C. 191 IN BANKRUPTCY PROCEEDINGS. IN ADDITION TO THE STATUTORY PRIORITY ACCORDED GOVERNMENT CLAIMS INVOLVING A BANKRUPT DEBTOR (31 U.S.C. 191), THE COURTS HAVE HELD REPEATEDLY THAT THE UNITED STATES HAS THE SAME RIGHT BELONGING TO OTHER CREDITORS TO APPLY FUNDS OWING TO A DEBTOR IN LIQUIDATION OF THAT DEBTOR'S OBLIGATION DUE THE UNITED STATES. GRATIOT V UNITED STATES, 15 PET. 336, 370 (1841); MCKNIGHT V UNITED STATES, 98 U.S. 179 (1878).

WHERE THE GOVERNMENT IS BOTH DEBTOR AND CREDITOR AT THE TIME OF FILING THE BANKRUPTCY PETITION, EITHER BY A CIVILIAN EMPLOYEE OR A MEMBER OF THE ARMED FORCES, THE TYPE OF PAYMENT PLAN WOULD SEEM TO BE IMMATERIAL AS FAR AS THE GOVERNMENT PRIORITY IS CONCERNED. WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT IS OUR VIEW THAT IN THE LIGHT OF THE COURT OF APPEALS HOLDING IN THE BELKIN CASE, AND IN THE ABSENCE OF A JUDICIAL DETERMINATION HOLDING THAT THE GOVERNMENT'S PRIORITY UNDER 31 U.S.C. 191 MAY NOT BE ASSERTED IN WAGE EARNER'S CASES INVOLVING AN EXTENSION OF TIME PLAN, NO SUBSTANTIAL BASIS EXISTS FOR OBJECTING TO THE ASSERTION OF THE GOVERNMENT'S RIGHT OF SET-OFF AS PROPOSED IN THE COMMITTEE ACTION FOR HANDLING BANKRUPTCY CASES OF THE TYPE DISCUSSED IN QUESTION 2. QUESTION 2 IS ANSWERED ACCORDINGLY.