Reconsideration of Denial of Waiver of Overpayments

B-186092, MAR 25, 1977

EMPLOYEE REQUESTS RECONSIDERATION OF DECISION DENYING WAIVER OF OVERPAYMENTS OF PAY. WAIVER IS DENIED SINCE EMPLOYEE WAS NOT FREE FROM FAULT IN ACCEPTING SALARY PAYMENTS FROM TWO AGENCIES AND EMPLOYEE HAS PRODUCED NO ADDITIONAL EVIDENCE WARRANTING REVERSAL OF OUR PRIOR DETERMINATION.

RECONSIDERATION OF DENIAL OF WAIVER OF OVERPAYMENT:

THIS ACTION IS IN RESPONSE TO THE REQUEST FOR RECONSIDERATION FROM MR. [REDACTED] OF OUR DECISION B-186092, SEPTEMBER 27, 1976, DENYING WAIVER OF AN ERRONEOUS OVERPAYMENT OF PAY UNDER THE PROVISIONS OF 5 U.S.C. 5584 (SUPP. IV, 1974).

BRIEFLY STATED, OUR PRIOR DECISION HELD THAT WHERE MR. [REDACTED] LEFT A POSITION WITH ONE AGENCY TO ACCEPT A POSITION WITH ANOTHER AGENCY BUT HE CONTINUED TO RECEIVE SALARY PAYMENTS FROM THE FORMER AGENCY FOR THE NEXT TWO PAY PERIODS, HE WAS NOT WITHOUT FAULT IN ACCEPTING THE PAYMENTS AND IS THEREFORE PRECLUDED FROM WAIVER OF THE ERRONEOUS OVERPAYMENT UNDER 5 U.S.C. 5584 AND THE IMPLEMENTING REGULATIONS CONTAINED IN 4 C.F.R.PART 91 (1976). IN REQUESTING RECONSIDERATION MR. [REDACTED] ARGUES THAT OUR DECISION IMPLIES THAT HE WAS ACTUALLY WORKING AT THE FORMER AGENCY, THE AGENCY FOR INTERNATIONAL DEVELOPMEND (AID), ONE DAY AND THAT HE ACCEPTED A POSITION WITH ANOTHER AGENCY, THE PEACE CORPS, THE NEXT DAY. MR. [REDACTED] STATES THAT HE WAS NOT ACTUALLY REPORTING DAILY TO A POSITION AT AID PRIOR TO ACCEPTING A POSITION WITH THE PEACE CORPS (WE PRESUME HE WAS ON PAID LEAVE), BUT THAT FACT BEARS LITTLE RELEVANCE TO THE DETERMINATION WHETHER THE EMPLOYEE WAS FREE FROM FAULT IN ACCEPTING THE OVERPAYMENTS.

MR. [REDACTED] ARGUES FURTHER THAT HE STILL BELIEVES HE ACTED REASONABLY AND PRUDENTLY IN ACCEPTING THE PAYMENTS FROM AID ON THE ASSUMPTION THAT THE PAYMENTS REPRESENTED A LUMP-SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE. HE STATES THAT HE DID NOT RECEIVE ANY EARNINGS AND LEAVE STATEMENTS WHICH WOULD HAVE PUT HIM ON NOTICE OF THE ERRONEOUS OVERPAYMENTS AND THAT HE ACCEPTED THE PAYMENTS IN GOOD FAITH.

AS WE STATED IN OUR PRIOR DECISION, IT APPEARS THAT AS A REASONABLE AND PRUDENT EMPLOYEE, MR. [REDACTED] SHOULD HAVE QUESTIONED THE CORRECTNESS OF HIS RECEIVING SALARY PAYMENTS FOR THE SAME PERIODS FROM THE DIFFERENT AGENCIES. WHETHER AN EMPLOYEE WHO RECEIVES AN ERRONEOUS PAYMENT IS FREE FROM FAULT IN THE MATTER CAN ONLY BE DETERMINED BY A CAREFUL ANALYSIS OF ALL PERTINENT FACTS, NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING WHETHER THE EMPLOYEE REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. B-174059, OCTOBER 8, 1971. MR. [REDACTED] HAS PRESENTED NO ADDITIONAL EVIDENCE WHICH WOULD WARRANT REVERSING OUR PRIOR DETERMINATION IN REFUSING TO GRANT A WAIVER OF THE OVERPAYMENT.

ACCORDINGLY, OUR PRIOR DECISION DENYING WAIVER OF THE OVERPAYMENT IS SUSTAINED.