B-168506, JAN. 21, 1970

B-168506, JAN. 21, 1970

CIVIL PAY--ERRONEOUS COMPENSATION PAYMENTS--WAIVER DECISION TO POSTAL EMPLOYEE DENYING REQUEST FOR WAIVER OF GOVERNMENT'S CLAIM FOR REPAYMENT OF EXCESS PAY. A POSTAL EMPLOYEE WITH 22 YEARS OF SERVICE WHO, WHEN DEMOTED, WAS ERRONEOUSLY PAID AT THE HIGHER RATE FOR A YEAR MAY NOT BE REGARDED AS WITHOUT FAULT TO WARRANT WAIVER OF THE OVERPAYMENT UNDER PUBLIC LAW 90 616, 5 U.S.C. 5584.

TO MR. JOSEPH BAKUNAS:

WE REFER TO YOUR LETTER OF NOVEMBER 5, 1969, ASKING THAT WE RECONSIDER THE ACTION TAKEN BY OUR OFFICE ON OCTOBER 6, 1969, DENYING YOUR REQUEST FOR WAIVER OF THE GOVERNMENT'S CLAIM AGAINST YOU FOR REPAYMENT OF EXCESS PAY COVERING THE PERIOD MARCH 23, 1968, TO MARCH 7, 1969, UNDER THE PROVISIONS OF THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90-616, 5 U.S.C. 5584.

THE GOVERNMENT'S CLAIM AROSE AS THE RESULT OF THE FAILURE OF THE POST OFFICE DEPARTMENT TO DECREASE YOUR PAY AT THE TIME YOU WERE DEMOTED AT YOUR OWN REQUEST FROM LEVEL 6, STEP 10 ($7,862) TO LEVEL 5, STEP 10 ($7,334) EFFECTIVE MARCH 23, 1968. YOU WERE ERRONEOUSLY PAID AT THE RATE OF THE HIGHER GRADE FROM THAT DATE UNTIL CORRECTIVE ACTION WAS TAKEN EFFECTIVE MARCH 8, 1969. THE POST OFFICE DEPARTMENT HAS ADVISED US THAT YOU RECEIVED A GROSS OVERPAYMENT OF $556.05 DURING THAT PERIOD.

YOUR REQUEST FOR WAIVER WAS NOT ALLOWED BECAUSE IT WAS CONSIDERED REASONABLE FOR YOU TO MAKE INQUIRY AS TO WHY YOUR PAY WAS NOT REDUCED AS A RESULT OF YOUR DEMOTION. YOU SAY THAT THERE WAS A SLIGHT REDUCTION IN YOUR PAY FOLLOWING THE DEMOTION AND THAT YOU ACCEPTED THAT REDUCTION AS THE ADJUSTMENT REQUIRED BY YOUR DEMOTION.

THE POST OFFICE DEPARTMENT ADVISES US THAT FOR THE PAY PERIOD MARCH 9 TO 22, 1968, YOU WERE PAID THE GROSS AMOUNT OF $302.38, AND THE NET AMOUNT OF $231.51 REFLECTED THE ADDITIONAL DEDUCTION OF $1.67 FOR UNION DUES. THE DEPARTMENT FURTHER ADVISES THAT FOR THE PAY PERIOD MARCH 23 - APRIL 5, 1968, THE BEGINNING PERIOD OF THE OVERPAYMENT, ONLY THE USUAL DEDUCTIONS WERE MADE ON THE GROSS PAY OF$302.38, THE NET PAY BEING $233.18. IN THE FIRST PAY PERIOD IN EACH MONTH THEREAFTER YOUR PAY WAS REDUCED BY $1.67 REPRESENTING UNION DUES. THE ONLY OTHER ADDITIONAL REDUCTION REPORTED BY THE DEPARTMENT COMMENCED IN THE PAY PERIOD JUNE 29 TO JULY 12, 1968, WHEN THE FEDERAL WITHHOLDING TAX WAS INCREASED BY THE 10 PERCENT SURCHARGE, RESULTING IN AN ADDITIONAL WITHHOLDING IN YOUR CASE OF $3.75.

THE DEPARTMENT ALSO REPORTS THAT YOU WERE FURNISHED POD FORMS 1223, EARNINGS AND DEDUCTIONS STATEMENTS, SHOWING THE GROSS PAY, DEDUCTIONS, AND NET PAY FOR EACH PAY PERIOD.

WE ARE OF THE VIEW THAT YOU SHOULD HAVE BEEN AWARE OF THE REASONS FOR BOTH THE $1.67 AND $3.75 ADDITIONAL REDUCTIONS IN YOUR PAY. IN ANY EVENT IT SHOULD HAVE BEEN OBVIOUS TO YOU, AS AN EMPLOYEE WITH 22 YEARS OF SERVICE, THAT THE DEMOTION RESULTING IN A DECREASE IN YOUR ANNUAL PAY RATE FROM $7,862 TO $7,334 WOULD HAVE NECESSITATED A SUBSTANTIAL REDUCTION OF YOUR GROSS BIWEEKLY PAY.

IN THE CIRCUMSTANCES, YOU COULD NOT REASONABLY HAVE EXPECTED TO RETAIN THE EXCESS BIWEEKLY PAY WITHOUT BEING OBLIGATED TO MAKE REFUND THEREOF WHEN THE ERROR WAS DISCOVERED. THEREFORE, THE CONCLUSION THAT YOU WERE NOT WITHOUT FAULT IN THE MATTER IS CONSIDERED TO HAVE BEEN CORRECT.

THE ACTION OF OCTOBER 6, 1969, DENYING YOUR REQUEST FOR WAIVER IS SUSTAINED.