B-170316, NOV 16, 1971

B-170316, NOV 16, 1971

CIVILIAN PERSONNEL - DEBT DUE UNITED STATES - RETIREMENT FUND SUSTAINING PRIOR DECISION WHICH APPROVED ACTION OF POSTAL SERVICE IN CHARGING CLAIMANT FOR AN AMOUNT ADMINISTRATIVELY DETERMINED TO BE OWED TO THE U.S., AND SETTING OFF SUCH AMOUNT FROM THE CIVIL SERVICE RETIREMENT FUNDS OTHERWISE DUE CLAIMANT. WHILE 5 U.S.C. 8346(A) STATES: "THE MONEY MENTIONED BY THIS SUBCHAPTER (RETIREMENT FUNDS) IS NOT ASSIGNABLE EITHER IN LAW OR EQUITY, OR SUBJECT TO EXECUTION, LEVY, ATTACHMENT, GARNISHMENT OR OTHER LEGAL PROCESS," THE SECTION APPLIES TO ACTIONS BY THIRD PARTIES AND DOES NOT AFFECT THE COMMON -LAW RIGHT OF THE GOVERNMENT, AS A CREDITOR, TO SET OFF AGAINST A DEBT OWED TO IT MONEYS IN ITS POSSESSION OTHERWISE PAYABLE TO ITS DEBTOR. SEE AL PARKER V UNITED STATES, 187 CT. CL. 553 (1969).

TO MR. JAMES E. SHAW:

BY HIS LETTER OF JUNE 2, 1971, YOUR ATTORNEY, MR. HOWARD B. SILBERBERG, REQUESTED RECONSIDERATION OF OUR DECISION OF APRIL 22, 1971, B-170316, SUSTAINING THE ACTION PREVIOUSLY TAKEN BY THE POSTAL SERVICE IN CHARGING YOU FOR AN AMOUNT ADMINISTRATIVELY DETERMINED TO BE OWED BY YOU TO THE UNITED STATES, AND SETTING OFF SUCH AMOUNT FROM THE CIVIL SERVICE RETIREMENT FUNDS OTHERWISE DUE YOU.

THE FACTS IN THIS MATTER AS DISCLOSED BY THE RECORD BEFORE OUR OFFICE WERE FULLY SET FORTH IN OUR DECISION OF APRIL 22, 1971, SUPRA, AND NEED NOT BE REPEATED HERE. AS YOU WERE ADVISED IN OUR PRIOR DECISION, IT IS OUR VIEW THAT THE EVIDENCE PRESENTED BY THE POSTAL SERVICE IS ADEQUATE TO SUPPORT A PRIMA FACIE CASE AGAINST YOU. THE LETTER FROM YOUR ATTORNEY PRESENTED NO ADDITIONAL EVIDENCE NOT CONSIDERED AT THE TIME OF OUR PRIOR DECISION, BUT MERELY CONTENDS THAT THE EVIDENCE PREVIOUSLY CONSIDERED DOES NOT SUPPORT A PRIMA FACIE CASE AGAINST YOU. IN THE ABSENCE OF ADDITIONAL EVIDENCE SUPPORTING YOUR ATTORNEY'S CONTENTION, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DEBT CHARGED AGAINST YOU BY THE POSTAL SERVICE.

MR. SILBERBERG ALSO STATES THAT OUR DECISION OF APRIL 22, 1971, DOES NOT ADDRESS YOUR CONTENTION THAT THE GOVERNMENT'S ACTION IN SETTING OFF THE LOSSES AGAINST YOUR RETIREMENT FUND IS PROHIBITED BY 5 U.S.C. 8346(A), AND THAT ALL THE DECISIONS CITED THEREIN IN SUPPORT OF OUR HOLDING ANTEDATE ENACTMENT OF THAT SECTION. SUBSECTION 8346(A) OF TITLE 5 OF THE U.S.C. PROVIDES THAT:

"THE MONEY MENTIONED BY THIS SUBCHAPTER (RETIREMENT FUNDS) IS NOT ASSIGNABLE, EITHER IN LAW OR EQUITY, OR SUBJECT TO EXECUTION, LEVY, ATTACHMENT, GARNISHMENT, OR OTHER LEGAL PROCESS."

THIS SECTION APPLIES TO THE ASSIGNMENT TO, OR EXECUTION, LEVY, ETC., BY A THIRD PARTY AND DOES NOT AFFECT THE COMMON-LAW RIGHT OF THE GOVERNMENT, AS A CREDITOR, TO SET OFF AGAINST A DEBT OWED TO IT MONEYS IN ITS POSSESSION OTHERWISE PAYABLE TO ITS DEBTOR. FURTHERMORE, WHILE THE CITED SECTION OF THE CODE WAS ENACTED BY THE ACT OF SEPTEMBER 6, 1966, PUB. L. 89-554, 80 STAT. 583, SUBSEQUENT TO THE DECISIONS CITED IN OUR PRIOR DECISION, THAT ACT MERELY ENACTED TITLE 5 OF THE UNITED STATES CODE INTO POSITIVE LAW WITHOUT MAJOR CHANGES THEREIN, AND THE LANGUAGE QUOTED HEREINABOVE DERIVES FROM PRACTICALLY IDENTICAL LANGUAGE CONTAINED IN SAID TITLE FOR MANY YEARS, GOING BACK TO SECTION 14 OF THE ACT OF MAY 22, 1920, CH. 195, 41 STAT. 620, THUS ANTEDATING THE DECISIONS CITED. IN ADDITION TO THE COURT CASES CITED IN OUR DECISION OF APRIL 22, 1971, YOUR ATTENTION IS INVITED TO THE CASE OF AL PARKER V UNITED STATES, 187 CT. CL. 553 (1969), WHEREIN THE UNITED STATES COURT OF CLAIMS, IN A DECISION DATED APRIL 11, 1969 - SUBSEQUENT TO THE ENACTMENT OF 5 U.S.C. 8346(A) BY PUBLIC LAW 89-554 - ON A CASE VERY SIMILAR TO YOURS, UPHELD THE RIGHT OF THE GOVERNMENT TO SET OFF AGAINST THE PLAINTIFF'S INDEBTEDNESS THEREIN THE AMOUNT TO THE CREDIT OF SAID PLAINTIFF IN THE RETIREMENT FUND.

IN VIEW OF THE ABOVE, OUR DECISION OF APRIL 22, 1971, UPON RECONSIDERATION, IS SUSTAINED.