United States v. Bushman

661 F. Supp. 266 (1987)

UNITED STATES of America, Plaintiff,
v.
Richard D. BUSHMAN, et al., Defendants.

Nos. 85-1768C(5), 85-1769C(5).

United States District Court, E.D. Missouri, E.D.

May 7, 1987.

Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., Paul P. Cacioppo, Regional Atty., Region VII, Dept. of Health & Human Services, Kansas City, Mo., for plaintiff.

Ray B. Marglous, Clayton, Mo., for defendants.

MEMORANDUM AND ORDER

LIMBAUGH, District Judge.

On March 5, 1987, the Court entered judgments in favor of the United States and against defendant Robert L. Bushman and in favor of the United States and against Richard D. Bushman on the plaintiff's claims for recoupment of Medicare overpayments. The Court also ordered the parties to submit additional information concerning plaintiff's claim for pre-judgment interest.

The plaintiff and the defendants have submitted memoranda of law, and the Court has determined that the United States has a common law right to pre-judgment interest on debts owed to the United States. Rodgers v. U.S., 332 U.S. 371, 376, 68 S. Ct. 5, 8, 92 L. Ed. 3 (1947); Royal Indemnity Co. v. U.S., 313 U.S. 289, 296, 61 S. Ct. 995, 997, 85 L. Ed. 1361 (1941). The Court will take judicial notice of Treasury Bulletin No. 81-14, which states that debts to the United States arising at the time when the United States first made demands on the Bushmans for repayment of the overcharges should accrue interest at the rate of 18.35 percent per annum. The Court has examined the hearsay affidavit of Leonard Nikoski and has determined that the interest computations appended to that document are accurate. Consequently, the Court will amend the March 5, 1987 order and will enter judgment in favor of the United States and against Robert L. Bushman in the amount of $14,638.72 and in favor of the United States and against Richard D. Bushman in the amount of $17,900.80.

The defendants contend that the pre-judgment interest rate sought by the plaintiff results in a windfall to the government. However, the defendants chose to contest the government's claim for recoupment of overpayments at a time of generally high interest rates and, consequently, they can blame only their pursuit of their defenses in the face of U.S. v. Erika, 456 U.S. 201, 203, 102 S. Ct. 1650, 1652, 72 L. Ed. 2d 12 (1981) for the magnitude of the judgments entered by the Court in favor of the United States.

Accordingly,

IT IS HEREBY ORDERED that the Court's order of March 5, 1987 is AMENDED.

IT IS FURTHER ORDERED that judgment is entered in favor of plaintiff United States and against defendant Richard D. Bushman on the merits in the amount of $17,900.80 with interest at the rate of 6.09 percent from March 5, 1987 until paid.

IT IS FINALLY ORDERED that judgment is entered in favorof plaintiff United States and against defendant Robert L. Bushman on the merits in the amount of $14,638.72 with interest at the rate of 6.09 percent from March 5, 1987 until paid.