If DC has been overpaying retired judges by miscomputing their disability pensions, can DC sue to recover the overpayments years later, and can the judges raise estoppel as a defense?

Plain-English summary

When DC Superior Court judges retire for disability, their pensions are calculated under D.C. Code § 11-1564. The statute combines three rules: subsection (a) sets the basic formula (a fraction of basic salary based on years of service), subsection (b) adds a floor (50%) and ceiling (80%) that apply only to disability retirees, and subsection (c) lets the judge add credit for prior military or civilian government service.

In 1992, an independent auditor (Grant Thornton) reviewed the retirement salary calculations of three retired Superior Court judges (Robert Campbell, Alfred Burka, James Washington) and found that DC's Office of Pay and Retirement had been calculating their pensions wrong. The error was procedural: the calculator had applied the 50% floor first as the judicial-service component, then added other-creditable-service credit on top. The correct method, confirmed by the DC Retirement Board's general counsel, was to apply subsection (a)'s formula first, add subsection (c) credit if elected, then check whether the total fell within the floor and ceiling.

For Judge Campbell specifically, the wrong method produced a pension of $39,240/year (the 80% ceiling). The right method produced $30,043.16/year. Campbell had been overpaid by about $760/month for years.

DC Controller N. Anthony Calhoun asked Corporation Counsel John Payton in late 1992 three things: (1) was the calculation wrong, (2) what was the right method, and (3) could DC recover the overpayments?

Payton answered yes, explained the right method in detail (Thornton was right), and addressed recovery. DC cannot just stop sending pension checks to claw back overpayments; the Controller has no statutory authority to withhold ongoing benefits as set-off. But DC can file civil lawsuits against the retired judges seeking recovery of the overpayments. Two critical points:

1. No statute of limitations. Under District of Columbia v. Owens-Corning Fiberglas Corporation, 572 A.2d 394 (D.C. 1990), and the 1986 amendment to D.C. Code § 12-301 (D.C. Law 6-202), the DC statute of limitations does not apply to actions by the DC government to vindicate public rights. Recovery of public funds erroneously paid is a public-rights action.

2. No equitable estoppel. Under Heckler v. Community Health Services and OPM v. Richmond, the federal government cannot be estopped from recovering overpayments even when the recipient relied in good faith on the erroneous payments. Johnston v. Iowa Department of Human Services and United States v. Fowler extend the same principle to state agencies and federal flood insurance, respectively.

So DC has the legal authority to sue. But the opinion adds a counsel of caution: "the District should consider whether this is an appropriate case in which to do so." Suing retired judges who relied on the calculations DC itself made is not an obvious public-relations or equitable winner. The decision whether to sue is for the Mayor and the legal team, not the Controller's automatic obligation.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can DC just stop sending pension checks until I "pay back" the overpayment? A: No. The Controller has no statutory authority for that kind of self-help setoff. DC must file a civil suit and obtain a judgment.

Q: How far back can DC go to recover overpayments?
A: There is no time limit, because the action vindicates public rights. Owens-Corning Fiberglas and the 1986 amendment to D.C. Code § 12-301 establish this. Practical limits come from evidence preservation and case-management considerations, not from the statute.

Q: Can I argue I relied on DC's calculations and should not have to repay? A: Equitable estoppel is not available against the government in this context. Heckler v. Community Health Services and OPM v. Richmond preclude that defense. You can negotiate repayment terms, but the underlying obligation stands.

Q: What if I have already spent the overpayment?
A: That does not eliminate the obligation. Negotiate installment payments. Some jurisdictions consider hardship a factor in setting repayment terms; check current DC practice.

Q: Did DC actually sue Judges Campbell, Burka, and Washington?
A: The opinion does not record the outcome. The opinion advised that DC has the legal authority to sue but should consider whether to do so. The decision was the Mayor's and the District's, weighing legal and equitable factors.

Q: Does this apply to other DC retirement systems?
A: The general principles do. The specific calculation analysis is for judicial disability retirement under D.C. Code § 11-1564. For other DC retirement systems (CMPA, police/fire), the underlying calculation rules differ but the general public-rights / no-estoppel framework for recovery is the same.

Q: What is the Owens-Corning Fiberglas case about?
A: DC sued asbestos manufacturers for the cost of asbestos abatement in DC public buildings. The defendants raised statute of limitations. The DC Court of Appeals held that the limitations periods in D.C. Code § 12-301 do not apply to DC government actions to vindicate public rights, even before the 1986 amendment that added explicit language to that effect. Owens-Corning Fiberglas is the leading DC authority on the no-statute-of-limitations rule.

Background and statutory framework

DC Superior Court was created by the District of Columbia Court Reform and Criminal Procedure Act of 1970 (Pub. L. 91-358, 84 Stat. 501). The Act set up the judicial retirement system in D.C. Code §§ 11-1561 through 11-1571. Section 11-1564 governs the computation of retirement salary.

The statute creates a layered formula:

• § 11-1564(a) sets the basic formula: retirement salary equals basic salary times (years of service / 30 years), capped at 80% of basic salary. So a judge with 15 years of service gets 50%; one with 24 years gets 80%.

• § 11-1564(b) modifies the formula for judges retiring for disability: "shall be computed as provided in subsection (a)," but with both a floor (50% of basic salary) and the same ceiling (80%). So a disability retiree gets at least 50%, regardless of years served.

• § 11-1564(c) lets a judge elect to count "other creditable service" (military service, prior federal civilian service under 5 U.S.C. § 8332) "in addition to" the subsection (a) amount. The other creditable service is computed under federal CSRS provisions (5 U.S.C. §§ 8334, 8339).

The Office of Pay and Retirement's calculator had applied the 50% floor as the initial judicial-service component, then added other-creditable-service credit on top, then checked the total against the ceiling. That produced a higher pension than the statute intended for some judges.

The correct method, as Auditor Thornton and DC Retirement Board General Counsel Cullins explained, was to:

1. Apply § 11-1564(a)'s pro rata formula to get the judicial-service component (years / 30 × basic salary).
2. Add the § 11-1564(c) credit for other creditable service if elected.
3. Compare the total to the floor and ceiling. If below floor, raise to floor. If above ceiling, lower to ceiling.

For Judge Campbell, that meant judicial service component = 6.5/30 × $49,050 = $10,627.50, plus other creditable service credit of $19,415.66 (from his 21.67 years of military and Corporation Counsel service), total = $30,043.16, which falls between the floor ($24,525) and ceiling ($39,240), so no adjustment. Correct annual pension was $30,043.16, not the $39,240 he was actually paid.

The recovery analysis turns on three legal pillars:

No setoff authority. A 1987 Corporation Counsel memo (cited in this opinion) had already concluded that the Controller has "no statutory authority to withhold payment of retirement benefits" as a means of recouping overpayments. That ruling stood; the only remedy is civil suit.

No statute of limitations against the District. District of Columbia v. Owens-Corning Fiberglas Corporation, 572 A.2d 394 (D.C. 1990), held that the DC limitations periods in § 12-301 do not apply to actions by the DC government to vindicate public rights. The 1986 Statute of Limitations Amendment Act (D.C. Law 6-202) made this explicit by adding to § 12-301: "This section does not apply ... to actions brought by the District of Columbia government." The Mayor's transmittal letter explained the purpose was "to make clear" that limitations do not apply when DC sues to enforce public rights.

No equitable estoppel against the government. Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984), held the United States is not estopped from recovering Medicare reimbursement overpayments. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), held estoppel cannot compel the government to pay benefits not authorized by law. Johnston v. Iowa Department of Human Services, 932 F.2d 1247 (8th Cir. 1992), and United States v. Fowler, 913 F.2d 1382 (9th Cir. 1990), apply the same rule to state and federal benefits programs.

So DC has the legal tools. The opinion's discretion-piece was an explicit reminder that DC should weigh whether suing the retirees is the right move on the equities.

Citations and references

Statutes:

• DC Court Reform and Criminal Procedure Act of 1970, Pub. L. 91-358
• D.C. Code §§ 11-1562(c), 11-1564 (judicial retirement computation)
• 5 U.S.C. §§ 8332, 8334, 8339 (CSRS creditable service)
• D.C. Code § 12-301 (DC statute of limitations)
• DC Statute of Limitations Amendment Act of 1986, D.C. Law 6-202

Cases:

• District of Columbia v. Owens-Corning Fiberglas Corporation, 572 A.2d 394 (D.C. 1990), no statute of limitations against DC for public-rights actions
• Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984), federal government not estopped from overpayment recovery
• Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), estoppel cannot compel unauthorized benefits payment
• Johnston v. Iowa Department of Human Services, 932 F.2d 1247 (8th Cir. 1992), same for state AFDC overpayments
• United States v. Fowler, 913 F.2d 1382 (9th Cir. 1990), same for federal flood insurance
• Winters v. Ridley, 596 A.2d 569 (D.C. 1991), text-first statutory interpretation

License

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Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-DC-Controller.pdf

Original opinion text

·

,

<&ouernment of tlTe iistrict of <!!olumbia
OFFICE OF THE CORPORATION COUNSEL
JUDICIARY SQUARE
441 FOURTH ST .. N.W.
WASHINGTON. D. C

20001

IN REPLY REFER TO:

L&O:LNG:lng
(93-001-L) (LCD-6596)
January 27, 1993

OPINION OF THE CORPORATION COUNSEL
SUBJECT: May the D.C. Controller recoup retirement
salary overpayments made to three retired
judges of the superior Court?
Mr. N. Anthony Calhoun
D.C. Controller
415 12th street, N.W. Room 412
Washington, D.C. 20004
Dear Mr. Calhoun:
This is in response to your December 23, 1992 request for my
opinion concerning whether the District may recoup retirement salary overpayments erroneously made to three judges of the Superior Court who retired for disability. You also request my opinion concerning whether the District's Pay and Retirement Office is correctly applying the statutory language that governs the computation of the retirement salary of a judge of the superior Court or the District of Columbia Court of Appeals who retires for a disability. In summary, my conclusions are: (1) the retirement salaries of the three judges in question were initially calculated in a manner that was incorrect, resulting in overpayments; (2) the District should apply the correct calculation to future payments; and (3) the District can bring an action to recoup the overpayments, but should consider whether this is an appropriate case in which to do so. I will address the computation question first. Retirement Salary Computation for Judges Who Retire for Disability All three judges in question, Robert H. Campbell, Alfred Burka, and James A. Washington, voluntarily retired for disability from the Superior Court of the District of Columbia. They were eligible to retire for disability and receive a retirement salary because all three had, at the time of their retirements, "five

2

years or more of judicial service, including civilian service
[i.e., other service] performed by the judge that is creditable
[for retirement purposes] under section 8332 of title 5, United
states Code."
D.C. Code § 11-1562 (c) (1992).
According to the
information supplied by Mr. Jerry R. Peyton, the Director of the
Office of Pay and Retirement, Judge Campbell had 6.5 years of
judicial service and 21.67 years of other creditable service; Judge
Burka had 12.38 years of judicial service and 6.33 years of other
creditable service; and Judge Washington had 13.75 years of judicial service and 10.5 years of other creditable service. Each judge elected, pursuant to D.C. Code § 11-1564(c) (1992), to have this other creditable service counted in the computation of his retirement salary. The D. C. Code provis"ion that governs the computation of a judge's retireme~t salary is D.C. Code § 11-1564 (1992) which provides in relevant part: (a) The retirement salary of a judge who retires pursuant to section 11-1562 (a) and (b) shall be paid annually in equal monthly installments during the remainder of his life and shall bear the same ratio to his basic salary immediately prior to the date of his retirement as the total of his aggregate years of service bears to the period of thirty years. * * * In no event shall the retirement salary (including the amount provided by subsection (c) of this section) of a judge exceed 80 per centum of his basic salary immediately prior to the date of his retirement. (b) The retirement salary of a judge retired for disability pursuant to section 11-1526(b) or section 111562(c) or (d) shall be paid annually in equal monthly installments during the remainder of his life and shall be computed as provided in SUbsection (al. * * * In no event shall the retirement salary of a judge retired for disability be less that 50 per centum or exceed 80 per centum of his basic salary immediately prior to the date of his retirement. (c) In computing the retirement salary of a judge retiring under section 11-1562, the judge shall be entitled, if he so elects during the continuance of his judicial service or at the time of his retirement, to receive, in addi tion to the amount provided for in
~ubsection
(a) of this section, an amount (payable
annually in equal monthly installments during the
remainder of his life) based on military and civilian
service performed by the judge which is creditable under
section ~332 of title 5, united states Code ••••
(Emphasis added.)

3

Peyton indicates that, in computing the initial retirement salaries
of Judges Campbell, Burka, and Washington, the person who did the
computationl first applied the 50% floor set forth in sUbsection
(b) to the basic salary each judge earned immediately prior to his
retirement and used that figure as the judicial service component
of the retirement salary. In the second step, the person calculated the amount due each judge for that judge's other creditable service. In the third step, the person added these two components together to arrive at a preliminary retirement salary figure. Finally, the person calculated the ceiling and floor figures for each judge and made an adjustment if the preliminary retirement salary figure was above the ceiling or below the floor. 2 In an audit of these computations by independent auditor Grant Thornton, Mr. Thornton expressed the opinion that this method of computation is incorrect. In Mr. Thornton's view the judicial service component of the retirement salary figure should be computed by applying the formula set forth in sUbsection (a) and then adding to this figure the amount, if any, due under subsection (c) for other creditable service. The 50% floor set forth in subsection (b) should be used only for the purpose of ensuring that the final retirement salary figure of a judge retiring for disability is not below the judge's floor figure. In a memorandum dated May 1, 1992, Jeanna M. CUllins, General Counsel to the D.C. Retirement Board, concluded that the computation method applied by Mr. Thornton is the correct method. For the reasons set forth below, I conclude that the person who initially calculated the retirement salaries of these three judges incorrectly applied the relevant sUbsections of D.C. Code
§ 11-1564.
I further conclude that Mr. Thornton's method of computation, which has the concurrence of the Retirement Board's General Counsel, is the proper computation method. 3 1 An examination of the worksheets for each of these judges indicates that the same person did all three computations.

2
In Judge Campbell's case, because of his many years of
additional creditable service, the total of the two components
exceeded the 80% ceiling and was then lowered to the ceiling.

3
Here, it is relevant to note that on February 13, 1990,
which was prior to Auditor Grant Thornton's discovery of the error

in the retirement salary computations of Judges Campbell, Washing-

ton, and Burka, Superior Court Judge Carlisle E. Pratt retired for
disability. Mr. Peyton of the Office of Pay and Retirement reports
that an examination of Judge Pratt's retirement file indicates that
Judge Pratt's retirement salary was calculated on the basis of a
correct application of sUbsections (a), (b), and (c) of D.C. Code
§ 11-1564.

--------------------------------------~-----

4

The relevant language of D.C. Code § 11-1564 was enacted by
Congress as part of the District of Columbia Court Reform and
Criminal Procedure Act of 1970, Public Law 91-358, 84 stat. 501.
"The starting point in statutory construction is to read and
examine the text of the act and draw inferences concerning the
meaning from its composition and structure." 2A Sutherland, Statutory Construction § 47.01 (5th ed. 1992). The words used in a statutory provision are the primary and usually the most reliable source of interpreting the intent of the legislative body that enacted the provision. winters v. Ridley, 596 A.2d 569, 572 (D.C. 1991). The above-quoted sUbsections of D.C. Code § 11-1564 establish the following principles applicable to the initial computation of a judge's retirement salary: (1) The underscored language in subsection (b) above makes clear that when computing the retirement salary of a judge who retires for disability, the computation formula set forth in sUbsection (a) shall be used. (2) With regard to all judges, regardless of the type of retirement, there is a retirement salary ceiling equal to 80 percent of the judge's basic salary immediately prior to the ·date of his or her retirement; thus, no initial retirement salary may exceed this ceiling. (3) With regard to judges who retire for disability, there is, in addition to the 80 percent ceiling, a retirement salary floor 4 equal to 50 percent of the judge's basic salary immediately prior to the date of his retirement; thus, no initial retirement salary for a judge who retires for disability may be less than this floor. (4) Under sUbsection (c), a judge's other creditable service may be counted "[i]n computing the [judge's] retirement salary" if the judge so elects, either while on active duty or at the time of retirement; thus, if a judge elects to count this other creditable service, it becomes a component of the judge's "retirement salary." Therefore, in the case of a judge who retires for disability and who has other creditable service which the judge has elected to count in the computation of his or her retirement salary, the first step is to apply the computation formula set forth in subsection (a). For example, Judge Campbell's basic salary immediately prior

4
The term "floor" was used by then Court of General Sessions
Chief Judge Harold H. Greene in his prepared statement in support
of a similarly worded provision in S. 1214, 91st Cong., 1st Sess.,
a court reform bill that \laS being considered at the SilY,~,:: t.ime as
the bill (So 2601) that became the Court Reform Act. See Hearings
before the Committee on the District of Columbia and Subcommittee
on Improvements in Judicial Machinery of the committee on the Judiciary United states Senate, 91st Cong., 1st Sess., on S. 1066, S. 1067, S. 1214, S. 1215, S. 1711, and S. 2601, Part 3, at p. 1212 (1969).

--

--------------------------------------------------,

5

to the date of his retirement was $49,050. His judicial service as
a Superior Court judge lasted 6.5 years. Accordingly, applying the
computation formula set forth in sUbsection (a), the judicial service component of Judge Campbell's retirement salary is the percent of $49,050 that 6.5 years is of 30 years. In Judge Campbell's case the answer is $10,627.50. As noted above, Judge Campbell had 21.67 years of other creditable service (including both military service and service in the Office of the Corporation Counsel). Under the applicable computation provisions set forth in 5 U.S.C. §§ 8334 and 8339, these 21.67 years of other creditable service entitled Judge Campbell to an additional $19,415.66. When this figure is added to the judicial service figure, the total is $30,043.16. Since Judge Campbell retired for disability, the next step is to calculate under sUbsection (b) both the floor and the ceiling figures for Judge Campbell. If the $30,043.16 figure is below the floor, it would have to be raised to the floor. On the other hand, if the
$30,043.16 figure is above the ceiling, it would have to be lowered
to the ceiling. As indicated above, Judge Campbell's basic salary
immediately prior to his retirement was $49,050. Therefore, Judge
Campbell's floor was $24,525 (50% of $49,050), and his ceiling was
$39,240 (80% of $49,050). Since the $30,043.16 figure lay between
his floor and ceiling figures, no adjustment was necessary. Therefore $30,043.16 was the approximately correct initial retirement salary figure for Judge Campbell. And the approximately correct initial monthly retirement salary installment that should have been paid to Judge Campbell was $2503.60 ($30,043.16 divided by 12 months).5 As noted in footnote 2, supra, the person who initially computed Judge Campbell's retirement salary concluded that he was entitled to an amount equal to the ceiling applicable to his salary, namely $39,240 or $3,270 per month ($39,240 divided by 12 months). Thus, at the commencement of his retirement, Judge Campbell received a monthly retirement salary that was more than $760 in excess of the amount to which he was entitled under D.C. Code
§ 11-1564.

In sum, the method of computation used by person who initially
computed the retirement salaries of Judges Campbell, Burka, and
Washington was incorrect because it violated the express command in
sUbsection (b) that" [t]he retirement salary of a judge retired for
disability. •• shall be computed as provided in sUbsection Cal."
(Emphasis added.)
This express direction to use the formula in
SUbsection (a) to calculate the retirement salary of a judge retiring for disability makes clear that Congress intended the 50 percent floor in SUbsection (b) to be used not for the purpose of 5 I use the phrase "approximately correct" because Mr. Peyton of the Office of Pay and Retirement reports that his office uses a "rounding" method of computation under which Judge Campbell's correct initial monthly retirement salary figure has been calculated to be $2506.85 rather than the $2503.60. I accept Mr. Peyton's figure.

6

initially calculating the judicial service component of the retirement salary figure, but only for the purpose of ensuring that the retirement salary calculated under the formula set forth in subsection (a) (and sUbsection (c), if applicable) is at least equal to 50% of the judge's basic salary at the time of retirement in the case of a judge retired for disability.6 Thus, I conclude that Judges Campbell, Burka, and Washington have been paid a retirement salary in excess of that to which they were legally entitled under D. C. Code § 11-1564. Accordingly, their retirement salaries should be reduced to the correct level. District's Authority to Recoup Overpayments By memorandum (copy enclosed), dated December 4, 1987, to Larry P. Polansky, this Office opined (at page 3) that there is "no statutory authority for the Controller to withhold payment of retirement benefits" to retired judges as a means of recouping past retirement overpayments. Since the status of the statutory law in this regard has not changed, it must be concluded that the set-off remedy is not available to the District as a means of recovering these overpayments. If the three retired judges in question are unwilling voluntarily to refund these overpayments then civil actions for recoupment could be instituted against them. An action by the District to recover public funds erroneously paid to an individual is an action to vindicate public rights. Accordingly, in bringing a suit to recover retirement salary overpayments, the District is not now and has never been subject to the time limitations set forth in the District's statute of limitations, D.C. Code § 12-301 (1989). See District of Columbia v. Owens-Corning Fiberglas Corporation, 572 A.2d 394 (1990), cert. denied 111 S.ct 213 (1990). See also: the last sentence of D.C. Code § 12-301 which provides "This section does not apply ••• to actions brought by the District of Columbia

6
An examination of the legislative history of the Court
Reform Act has revealed nothing indicating that Congress intended
the 50% floor to be applied in the manner it was applied by the
person who initially calculated the retirement salaries of Judges
Campbell, Burka, and Washington. That legislative history is consistent with the view expressed here, namely that Congress intended the 50% of basic salary figure solely to be a minimum below which, in disability retirement cases, a retirement salary as otherwise calculated, could not fall. See,~, H.R. Rep. No. 91-907, 91st Cong., 2d Sess. 41 (1970) ("In the case of a judge retired voluntarily or involuntarily for disability, the minimum retirement salary shall be not less than 50 percent nor more than 80 percent of the basic salary on the day before the day of retirement").

7

government. ,,7 Thus, the District may seek recoupment of all overpayments from the first to the last. Moreover, since the District would be seeking the recovery of "public funds," it does not appear that these retired judges could successfully interpose any equitable defenses such as equitable estoppel. See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984) (United States was not estopped from recovering overpayment of medicare reimbursement for salaries of CETA-funded employees who provided services to medicare patients); Johnston v. Iowa Department of Human Services, 932 F.2d 1247 (8th Cir. 1992) (State agency not estopped from recovering AFDC overpayments made through error); united States v. Fowler, 913 F. 2d. 1382 (9th Cir. 1990) (United states not estopped from recovering money paid to persons ineligible for federal flood insurance). Compare Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) (the defense of equitable estoppel cannot be used to estop the Government from denying the payment of disability annuity benefits not otherwise permitted by law). Sincerely,

~f~~~n
~~:E1f~n Counsel
Enclosure

7
The language concerning actions by the District government
was added in the District of Columbia statute of Limitations Amendment Act of 1986, effective February 27, 1987, D.C. Law 6-202. One of the purposes of the bill (Bill 6-510), which was prepared by the Executive and which became D.C. Law 6-202, was "to make clear that the limitations provisions of sections 12-301 and 12-310 of the D.C. Code do not apply to the District government when it sues to enforce public rights." Transmittal Letter, dated July 16, 1986, from the Mayor to Council Chairman David A. Clarke. At the time Bill 6-51.0 was being considered by the council, the District's position was that, even absent language expressly exempting actions by the District government in these statutory provisions, the limitations in those provisions do not apply to the District government when it brings suit to vindicate public rights. That position was later upheld by the D.C. Court of Appeals in District of Columbia v. Owens-Corning Fiberglas corporation, supra.