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:
-
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.
-
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.
What this means for you
If you are a retired DC Superior Court judge or your survivor
Your retirement salary calculations are subject to audit and correction. If a miscalculation is discovered, two things can happen:
- Going-forward correction. DC will reduce your pension to the correct amount starting the month after the correction. There is no statutory shield against this.
- Recovery of past overpayments. DC can file a civil suit to recover overpayments without a statute-of-limitations defense, and you cannot plead equitable estoppel even though you relied on the original calculations.
If you receive a notice that your pension is being recomputed or that overpayments are being demanded, get advice from counsel immediately. Negotiation about repayment terms (lump sum, installments) is often productive even when the legal merits favor DC.
If you administer DC retirement pensions
Three operating rules from this opinion:
- Get the calculation right the first time. Computational errors are not curable by time. Audit your initial computations against the statutory text and the DC Retirement Board General Counsel's interpretive guidance.
- You cannot self-help. The Controller has no authority to withhold pension checks to recover overpayments. Your only remedy is referral to the Office of the AG (formerly Corporation Counsel) for civil suit.
- Document the source of the error. Was it a worksheet error, a software bug, or a misread of the statute? Document the discovery date and the basis for the corrected calculation. This will matter in any subsequent litigation or settlement.
If you are an attorney representing a retired federal or DC government employee
The federal-government cases (Heckler, OPM v. Richmond, Fowler) and the DC analog (Owens-Corning Fiberglas) all bar equitable estoppel against the government in benefits-overpayment cases. Do not build your client's defense on estoppel. Instead, focus on:
- Disputing the computational error itself (did the agency get it right or not?)
- Negotiating repayment terms that are equitable given the client's reliance and circumstances
- Mitigation: the agency's delay in catching the error is not a legal defense, but it is a factor in negotiation
If you are a public-pension lawyer
This opinion is the canonical DC statement that the no-statute-of-limitations rule for government actions to vindicate public rights covers benefits overpayment recovery. Owens-Corning Fiberglas is the DC Court of Appeals' affirmation. The 1986 amendment to D.C. Code § 12-301 made the rule explicit by exempting "actions brought by the District of Columbia government" from the limitations periods.
If you are a government finance professional
Two points to remember for any kind of government overpayment situation: (1) you cannot self-help via setoff against ongoing benefits without specific statutory authority; (2) civil suit is your remedy, with no statute of limitations and no equitable estoppel defense. Document the error and refer to legal counsel.
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:
- Apply § 11-1564(a)'s pro rata formula to get the judicial-service component (years / 30 × basic salary).
- Add the § 11-1564(c) credit for other creditable service if elected.
- 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 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.