In re Fukui, B-191321

• Decision Date: 30 November 1978
• Docket Number: B-191321
• Citation: 58 Comp.Gen. 115
• Parties: IN THE MATTER OF DR. KATSURA FUKUI - PAYMENT OF JUDGMENT
• Court: Comptroller General of the United States

58 Comp.Gen. 115

IN THE MATTER OF DR. KATSURA FUKUI - PAYMENT OF JUDGMENT

No. B-191321

Comptroller General of the United States

November 30, 1978

Appropriations - permanent indefinite - judgments - availability for retirement and insurance deductions employee recovered judgment in U.S. District court providing for back pay and specifically in calling for payment of government's contribution to civil service retirement fund. Where judgment specifically provides for payment of government's contribution to civil service retirement fund or similar funds, that contribution May be paid from judgment fund created by 31 U.S.C. 724a. Appropriations - judgments -agency appropriations - availability for retirement and insurance deductions where judgment entered in favor of employee calls for payment of back pay, but does not specifically mention or provide for payment of government's contribution to civil service retirement fund, that contribution May be paid from agency appropriations. B-124720, May 15, 1961, overruled.

This matter arises from a request for the certification of a judgment for payment from the judgment fund created by 31 U.S.C. 724a.

By letter of December 13, 1977, from Ms. Barbara allen babcock assistant attorney general, civil division, department of justice, the "stipulation of compromise and dismissal " in katsura fukui v. Secretary of the air force, ER al., civil action no. 75-5208-g, United States district court for the district of Massachusetts, was submitted to this office for certification and payment. Under the terms of the stipulation, plaintiff fukui was to be paid the net amount of $26, 691, and $2, 009 was to be deposited on plaintiff's behalf as his contribution to the civil service retirement fund. Additionally, $2, 009 was to be deposited in the civil service retirement fund as the government's or employer's contribution.

During the review of the stipulation prior to certification, our decision B-127420, May 15, 1961, was considered. In that decision we held that no appropriation was available to pay the government's contribution to the civil service retirement fund where such contribution became due incident to back pay awarded in a court of claims judgment. Because we believed that it was desirable to reexamine that decision, we certified that part of the stipulation calling for the payment to plaintiff fukui and for the payment of his contribution to the civil service retirement fund. This decision considers whether or not the remainder of the stipulation May be certified for payment.

The act of July 27, 1956, as amended by chapter XIV of public law 95-26, May 4, 1977, 91 Stat. 61, 96, 31 U.S.C. 724a provides, in pertinent part that:

There are appropriated, out of any money in the treasury not otherwise appropriated, such sums as May be necessary for the payment, not otherwise provided for, as certified by the comptroller general, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of sections 2414, 2517, 2672, 2677 of title 28 together with such interest and costs as May be specified in such judgments or otherwise authorized by law * * *.

There is no question that the amounts owed to plaintiff fukui under the terms of the stipulation were payable from the above appropriation. These were in fact paid from it, including Mr Fukui's contribution to the civil service retirement fund.

A review of B-124720, May 15, 1961, shows that the judgement involved there was silent regarding payment of the government's contribution. That is not the case here, because the stipulation specifically calls for the payment of the government's contribution. We believe that that specific provision distinguishes the instant case from our prior holding. Since there is no specific restriction in 31 U.S.C. 724a barring the payment, when a judgment or compromise generally qualifies for payment under 31 U.S.C. 724a, if it provides for payment of the government's contribution to the civil service retirement fund, or any similar fund, that payment May be made from the judgment fund created by that section. This holding also satisfies the literal requirements of 5 U.S.C. 8334(a)(1) (1976) that the government's contribution be paid "from the appropriation or fund used to pay the employee" and it is not in conflict with the theory that the judgment fund May be used only for payment to or on behalf of a judgment creditor.

Although the specific issue raised in the instant case is thus settled, we believe that the basic holding of B-124720, May 15, 1961, must be reexamined. The specific provision calling for payment into the civil service retirement fund, 5 U.S.C. 8334 (1976), provides, in pertinent part, that:

(a)(1) the employing agency shall deduct and withhold 7 percent of the basic pay of an employee, 71/2 percent of the basic pay of a congressional employee, a law enforcement officer, and a firefighter, and 8 percent of the basic pay of a member. An equal amount shall be contributed from the appropriation or fund used to pay the employee or, in the case of an elected official, from an appropriation of fund available for payment of other salaries of the same office or establishment. * * *

Under normal circumstances, an employee's salary and...