ing within such period of time as will permit service and return of a subpena prior to the date set for the hearing at which the witness is to appear but in no case shall such application be filed later than 10 days prior to the date of hearing. The application shall set forth: (a) The name of the witness. (b) His address.

(c) The title of the matter to be heard, i.e., names of parties.

(d) The issue to which the testimony of the witness will be directed.

(e) The substance of the testimony which such witness is expected to give or the facts to which such witness will testify.

(f) The books, papers or documents which are requested, if a subpena duces tecum is applied for.

In addition to the above the party filing such application shall, at the time of filing, deposit therewith a sum of money sufficient to cover the fees and mileage of the witness, or in lieu thereof, shall state in the application that satisfactory arrangements have been made with the witness for the direct payment of his fees and mileage and any other allowable expense.

[35 F.R. 14543, Sept. 17, 1970]

§ 250.10

Petition for summoning recalcitrant witnesses.

(a) In connection with any hearing a party thereto may petition the Board, a member thereof, or a designated subordinate or subordinates, to subpena, upon its or their own motion, a witness or witnesses. The petition shall be in writing under oath and be filed with the body or person conducting the hearing within the time limit prescribed for an application for subpena, shall set forth the same information required in an application for subpena and in addition thereto shall show (1) that the person or persons named therein as witnesses will not appear voluntarily and (2) that a failure of such person or persons to appear and testify will operate to prejudice substantive rights of the petitioner.

(b) The body or person designated to conduct the hearing shall upon receipt of the petition determine whether the fact to which it is alleged the witness will testify or the testimony which it is alleged the witness will give is material and relevant and if such body or person

finds that such fact or testimony is material and relevant it or he shall either subpena such witness upon its or his own motion or by agreement of all parties to the hearing, except the petitioner, shall stipulate and agree in the record that such witness would testify as alleged in the petition or (if the petition be for the production of books, papers or documents) that the records requested would appear as alleged. The body or person shall also have the power to deny any part of a petition which in its or his judgment is not material or relevant to the issues to be heard. If, in the judgment of the body or person designated to conduct the hearing the testimony which it is alleged the witness will give is merely cumulative, or immaterial or irrelevant the petition may be denied.

[4 F.R. 1495, Apr. 7, 1939, as amended at 35 F.R. 14543, Sept. 17, 1970]

Service of subpenas issued under § 250.8 shall be made by any individual designated by the Board. Such individual shall deliver to the person or persons named therein a copy of the subpena and at that time tender to the person or persons the fees for one day's attendance and the mileage allowed by law, Provided, however, That if the witness or witnesses be summoned to appear upon motion of the body or person designated to conduct the hearing no fees or mileage need be tendered. Fees and mileage allowed shall be in the same amount as is allowed to witnesses in the courts of the United States.

§ 250.12 Returns.

The person serving the subpena shall make affidavit on the original subpena of the manner and time of service and shall file such original subpena with the person or body by whom it was issued. § 250.13 Examiners.

The Board may refer proceedings to an examiner for hearing and determination of any or all issues raised. Such appointment made in writing and entered upon the minutes of the Board shall constitute authorization for the examiner to preside at and conduct hearings, require and compel the attendance of witnesses, administer oaths, take testimony and cause the same to be recorded, and do such other acts as may be nec

(a) When the taking of testimony has been completed, the examiner shall as soon as practicable mail to the parties at the address stated in their appearances a free transcript of the record of the proceedings had before the examiner. In the event that more than two parties have appeared at the hearing, the examiner shall make available as many copies of the transcript as there are different positions represented by requiring each group of parties representing the same position to designate the person or office to whom their one free copy shall be mailed. Thereafter, the examiner shall give all parties participating in the hearing the opportunity for presentation to him of argument upon both law and facts. Upon conclusion of the proceedings before him, the examiner shall prepare an examiner's report, which, together with the record of the proceedings before him shall be submitted to the Board. The report shall set forth the examiner's findings of fact, conclusions of law, and recommendations as to decision. The report may also contain such discussion of the question raised, both legal and factual, as the examiner may desire to present to the Board.

(b) A copy of the examiner's report shall be served by the examiner upon each party participating in the hearing by mailing such copy to him at the address stated in his appearance.

(c) Each party shall within 20 days (exclusive of Sundays and legal holidays in the District of Columbia) after the date of mailing to him of the examiner's report, file with the Board and serve upon other parties by mailing to their addresses as stated in their appearances such exceptions in writing as he desires to make to the examiner's findings of fact and conclusions of law. Each exception shall specifically designate the particular findings of fact or conclusion

of law to which objection is taken, and shall set forth in detail the grounds of the objection. General exceptions and exceptions not specifically directed to particular findings of fact or conclusions of law will not be considered by the Board. Exceptions to findings of fact shall make specific reference by page numbers to those portions of the record upon which reliance is placed.

(d) Each party shall have 10 days after receipt of exceptions taken by other parties in which to file with the Board replies to the exceptions. Replies to exceptions to findings of fact shall make specific reference by page numbers to those portions of the record upon which reliance is placed.

(e) The Board may upon the application of a party and for cause shown extend the time for filing and serving of exceptions or filling of replies thereto.

(f) The Board will render its decision upon the record, the examiner's report, and such exceptions and replies thereto as are made. Where the record is voluminous (more than 100 pages including exhibits) the Board will consider only such points of law and fact as are specifically raised by the exceptions and such other points, if any, which it deems necessary for decision; and will examine only those portions of the record to which its attention is specifically directed, and such other portions of the record, if any, as the Board deems necessary.

(g) The examiner's report shall be advisory only and the Board may, in any case, exercise its right to reject or adopt the examiner's report in whole or in part or adopt such report with modifications. The examiner's report, while advisory, shall nevertheless be presumed to be correct. Findings of fact to which no exceptions are taken will, subject only to the power of the Board upon its own consideration to reject or modify, stand confirmed.

(h) The decision of the Board shall be communicated to the parties participating in the hearing within 30 days of the date upon which the decision of the Board is entered upon its records. § 250.16

Board decisions and opinions and dissenting opinions.

The following regulation shall apply to all decisions of the Board except decisions relating to matters of internal administration:

A decision made by at least two members of the Board shall constitute the decision of the Board. The decision of the Board shall be stated in a written opinion filed in the record of the proceedings. Such opinion shall set forth the reasons for the decision, either in full, or by reference to previous decisions of the Board, or by adoption of the reasons stated in the decision or recommendation of a subordinate or subordinate body of the Board. Any decision of the Board made by two members shall constitute the unanimous decision of the Board, unless within 10 days of the filing of the Board decision, a third member of the Board shall file a minority opinion setting forth his dissent and the reasons for his disagreement with the decision and opinion of the Board.

Recovery by deduction in computation of death benefit under 1937 act.

Recovery by adjustment in connec

tion with subsequent payments. Effect of adjustment in connection with subsequent payments. 255.10 Waiver of recovery.

255.11 255.12

Waiver of methods of recovery. Waiver not a matter of right; factors considered.

255.13 Compromise of erroneous payments. 255.14 Factors due to be considered in a compromise.

255.15 Suspension or termination of collection action.

AUTHORITY: The provisions of this Part 255 issued under secs. 9, 10, 50 Stat. 314, as amended; 45 U.S.C. 2281, 228].

NOTE: The Board may require reimbursement for annuity or pension payments made on basis of erroneous or fraudulent information (see § 240.6 (e)).

§ 255.1 Statutory provisions.

(a) If the Board finds that at any time more than the correct amount of annuities, pensions, or death benefits has been paid to any individual under this Act or the Railroad Retirement Act of 1935 or a payment has been made to an individual not entitled

thereto (including payments made prior to July 1, 1940), recovery by adjustments in subsequent payments to which such individual or, on the basis of the same compensation, any other individual, is entitled under this Act or any other Act administered by the Board may, except as otherwise provided in this section, be made under regulations prescribed by the Board. If the individual to whom more than the correct amount has been paid dies before recovery is completed, recovery may be made by setoff or adjustments, under regulations prescribed by the Board, in subsequent payments due, under this Act or any other Act administered by the Board, to the estate, designee, next of kin, legal representative, or surviving spouse of such individual, with respect to the employment of such individual.

(b) Adjustments under this section may be made either by deductions from subsequent payments or, with respect to payments which are to be made during a lifetime or lifetimes, by subtracting the total amount of annuities, pensions, or death benefits paid in excess of the proper amount from the actuarial value, as determined by the Board, of such payments to be made during a lifetime or lifetimes and recertifying such payments on the basis of the reduced actuarial value. In the latter case, recovery shall be deemed to have been completed upon such recertification.

(c) There shall be no recovery in any case in which more than the correct amount of annuities, pensions, or death benefits under this Act or the Railroad Retirement Act of 1935 has been paid to an individual or payment has been made to an individual not entitled thereto (including payments made prior to July 1, 1940) who, in the judgment of the Board, is without fault when, in the judgment of the Board, recovery would be contrary to the purpose of the Acts or would be against equity or good conscience.

(d) No certifying or disbursing officer shall be held liable for any amount certified or paid by him in good faith to any person where the recovery of such amount is waived under subsection (c) of this section or has been begun but cannot be completed under subsection (a) of this section. (50 Stat. 314, as amended; 45 U. S. C. 2281)

(e) Section 3, Public Law 89-508, 80 Stat. 308, provides:

(a) The head of an agency or his designee, pursuant to regulations prescribed by him and in conformity with such standards as may be promulgated jointly by the Attorney General and the Comptroller General, shall attempt collection of all claims of the United States for money or property arising out of the activities of, or referred to, his agency.

(b) With respect to such claims of the United States that have not been referred to another agency, including the General Accounting Office, for further collection action

50-089 0-71-16

and that do not exceed $20,000, exclusive of interest, the head of an agency or his designee, pursuant to regulations prescribed by him and in conformity with such standards as may be promulgated jointly by the Attorney General and the Comptroller General, may (1) compromise any such claim. or (2) cause collection action on any such claim to be terminated or suspended where it appears that no person liable on the claim has the present or prospective financial ability to pay any significant sum thereon or that the cost of collecting the claim is likely to exceed the amount of recovery. The Comptroller General or his designee shall have the foregoing authority with respect to claims referred to the General Accounting Office by another agency for further collection action. The head of an agency or his designee shall not exercise the foregoing authority with respect to a claim as to which there is an indication of fraud, the presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim, or a claim based in whole or in part on conduct in violation of the antitrust laws; nor shall the head of an agency, other than the Comptroller General of the United States, have authority to compromise a claim that arises from an exception made by the General Accounting Office in the account of an accountable officer.

(c) A compromise effected pursuant to authority conferred by subsection (b) of this section shall be final and conclusive on the debtor and on all officials, agencies, and courts of the United States, except if procured by fraud, misrepresentation, the presentation of a false claim, or mutual mistake of fact. No accountable officer shall be liable for any amount paid or for the value of property lost, damaged, or destroyed, where the recovery of such amount or value may not be had because of a compromise with a person primarily responsible under subsection (b).

[Board Order 41-526, 7 F.R. 97, Jan. 6, 1942, as amended by Board Order 67-21, 32 F.R. 3224, Feb. 24, 1967]

§ 255.4 Methods of recovering erroneous payments.

Erroneous payments may be recovered by any one or any combination of the methods described in §§ 255.6, 255.7, 255.8.

[4 F.R. 1501, Apr. 7, 1939]

§ 255.5 Recovery by cash payment.

The Board shall have the right to require that erroneous payments be immediately and fully repaid in cash and any individual shall have the absolute right to repay such erroneous payments in this manner. However, if the individual is financially unable to pay the indebtedness in a lump sum, payment may be accepted in regular installments. The amount and frequency of such installment payments should bear a reasonable relation to the size of the debt and the debtor's ability to pay. Whenever possible installment payments should be sufficient in amounts and frequency to liquidate the debt in not more than 3 years.

[Board Order 67-21, 32 F.R. 3224, Feb. 24, 1967]

§ 255.6 Recovery by setoff.

An erroneous payment made to an individual may be recovered from any subsequent payment determined payable, on the basis of the same compensation, under any Act administered by the Board. In any case in which full recovery is not effected by setoff, the balance due may be recovered by one or more of the other methods described in this part. If the overpaid individual dies before recovery is completed, such recovery shall be made from his estate or heirs.

[Board Order 67-21, 32 FR. 3224, Feb. 24, 1967]

§ 255.7 Recovery by deduction in computation of death benefit under 1937

act.

In computing the benefit under section 5(f) (2) of the 1937 act with respect to the death of an individual, the Board shall include in the benefits to be deducted from the applicable percentages of the aggregate compensation mentioned in that section all erroneous payments, not otherwise recovered, that were paid to the individual or to his spouse or to his survivors with respect to the individual's employment.

[Board Order 60-51, 25 FR. 2891, Apr. 6, 1960]

§ 255.8

Recovery by adjustment in connection with subsequent payments. Adjustment with respect to erroneous payments received by any individual may be made by subtracting the total amount of the erroneous payments from the actuarial value, as determined by the Board, of any annuity or pension payments due and becoming due to any individual on the basis of the same compensation and recertifying such annuity or pension on the basis of the reduced actuarial value. The adjustment described in this section may not be made unless all of the following conditions are shown to exist:

(a) That the person or persons whose annuities or pensions are being adjusted are alive on the date that the annuity or pension is recertified and on the due date of the first annuity or pension payment affected by the adjustment;

(b) That, on the dates mentioned in paragraph (a) of this section, there are annuities accruing or pensions becoming due to one of such persons;

(c) That the Board has waived in accordance with § 255.11, any right to recover by the methods described in §§ 255.5 and 255.6, but has not waived recovery in accordance with § 255.10. [Board Order 67-21, 32 F.R. 3224, Feb. 24, 1967]

§ 255.9

Effect of adjustment in connection with subsequent payments. Adjustment by the method described in § 255.8 shall constitute a recovery of the amount of erroneous payments included in the adjustment.

[4 F.R. 1501, Apr. 7, 1939]

§ 255.10 Waiver of recovery.

Recovery of erroneous payments may be waived in whole or in part if, in the judgment of the Board, the individual who received the erroneous payments is without fault and if, in the judgment of the Board, such recovery by any of the methods described in §§ 255.5, 255.6, 255.7, 255.8 would be against equity and good conscience.

[4 F.R. 1501, Apr. 7, 1939]

§ 255.11 Waiver of methods of recovery. The Board may waive any right to recover all or any part of the erroneous payments by any one or more methods without waiving the right to recover by some other method or methods if, in the

judgment of the Board, the individual is without fault and if, in the judgment of the Board, recovery by the methods waived would be against equity and good conscience and recovery by such other methods would not be against equity and good conscience. [4 F.R. 1501, Apr. 7, 1939]

§ 255.12 Waiver not a matter of right; factors considered.

A waiver under § 255.10 or § 255.11 is not a matter of right, but is at all times within the judgment of the Board. The following, while neither controlling nor fully measuring the discretion of the Board, indicate the character of reasons which will be considered:

(a) whether the erroneous payment was caused by an incorrect statement made by the individual receiving such payment, and the individual knew or should have known it was incorrect;

(b) whether the erroneous payment was caused by the failure of the individual to disclose facts or make a statement which he knew or should have known to be material;

(c) whether, at the time or times of receipt of payments the individual knew or should have known the amount thereof to be incorrect and failed to inquire or advise the Board of the incorrectness of the amount of the payment or payments;

(d) the extent to which the individual is dependent upon the current payment of his annuity or pension for the necessities of life;

(e) whether the individual has, by reason of the erroneous payment, changed his position in such manner as to make recovery a severe hardship. [4 F.R. 1502, Apr. 7, 1939]

§ 255.13 Compromise of erroneous pay

ments.

The Board or its designee may compromise an erroneous payment, provided such payment does not exceed $20,000. Compromise of an erroneous payment may not be considered in any case in which there is an indication of fraud, the presentation of a false claim or misrepresentation on the part of the overpaid individual or his representative. Compromise is at all times within the discretionary authority of the Board or its designee.

[Board Order 67-21, 32 F.R. 3224, Feb. 24, 1967]