B-165908, MAR. 14, 1969

B-165908, MAR. 14, 1969

TO MR. CARLYLE P. STALLINGS:

WE REFER AGAIN TO YOUR LETTER OF DECEMBER 19, 1968, REQUESTING WAIVER OF THE GOVERNMENT'S CLAIM AGAINST YOU ARISING OUT OF ERRONEOUS PAYMENTS OF PAY RECEIVED BY YOU AS AN EMPLOYEE OF THE DEPARTMENT OF LABOR.

THE ADMINISTRATIVE REPORT IN YOUR CASE IN PERTINENT PART IS AS FOLLOWS: "1. MR. STALLINGS WAS ASSIGNED TO A REIMBURSABLE DETAIL IN BANGKOK, THAILAND, EFFECTIVE APRIL 28, 1968, FOR WHICH HE WAS ENTITLED TO RECEIVE POST DIFFERENTIAL PAY OF 15 PERCENT. HOWEVER, NOTIFICATION OF THIS DETAIL WAS NOT FURNISHED TO OUR PAYROLL OFFICE UNTIL MID-JUNE 1968. THEREFORE, REGULAR SALARY PAYMENTS WERE MADE DURING THAT TIME BASED ON TIME AND ATTENDANCE REPORTS FROM HIS BUREAU. "2. AFTER RECEIPT OF NOTIFICATION OF THE DETAIL, A SALARY PAYMENT WAS PROCESSED TO INCLUDE REGULAR SALARY FOR THE PARTICULAR PAY PERIOD (JUNE 30 - JULY 13) INVOLVED AND THE RETROACTIVE POST DIFFERENTIAL AMOUNT OF $352.10 FROM APRIL 28 THROUGH JULY 13, 1968. "3. THE DIFFERENTIAL RATE WAS REDUCED FROM 15 TO 10 PERCENT EFFECTIVE MAY 19, 1968; HOWEVER, THE PAYROLL OFFICE WAS NOT ADVISED OF THIS REDUCTION UNTIL AUGUST 12, 1968. CONSEQUENTLY, THE POST DIFFERENTIAL PAYMENT WAS OVERSTATED BY $58.68. "4. MR. STALLINGS' DETAIL WAS TERMINATED EFFECTIVE JUNE 15, 1968, WHICH FACT WAS NOT MADE KNOWN TO THE PAYROLL OFFICE UNTIL AUGUST 12. AS A CONSEQUENCE, ADDITIONAL ERRONEOUS DIFFERENTIAL PAYMENTS WERE MADE. "5.IN ATTEMPTING TO ADJUST MR. STALLINGS' ACCOUNT IN SUCCEEDING PAY PERIODS, FURTHER INCORRECT PAYMENTS WERE PROCESSED. THESE INCLUDED A DUAL PAYMENT FOR THE PAY PERIOD AUGUST 25 - SEPTEMBER 7, 1968, FOR WHICH A CHECK WAS RELEASED IN ERROR. IN THE CASE OF THE DUAL PAYMENT, THE PAYROLL OFFICE RECOGNIZED THE ERROR IN HAVING REQUESTED A CHECK FROM THE TREASURY DEPARTMENT, AS PART OF THE REGULAR PAYROLL, FOR MORE MONEY THAN WAS DUE THE EMPLOYEE AND IMMEDIATELY REQUESTED ANOTHER CHECK IN THE CORRECT AMOUNT. HOWEVER, THE ERRONEOUS CHECK WAS INADVERTENTLY MAILED ALONG WITH THE CORRECT CHECK TO THE EMPLOYEE'S BANK. "6. MR. STALLINGS WAS AWARE OF THE FACT THAT HE HAD BEEN OVERPAID AND WAS IN CONTACT ON SEVERAL OCCASIONS WITH HIS BUREAU'S ADMINISTRATIVE STAFF AS WELL AS THE PAYROLL OFFICE ABOUT THE MATTER. HE ISSUED A PERSONAL CHECK ON OCTOBER 17, 1968, IN THE AMOUNT OF $710.48 TO COVER THE NET OVERPAYMENT OF REGULAR SALARY OF $672.98 AND AN INDEBTEDNESS OF $37.50 COVERING ONE U.S. SAVINGS BOND ISSUED IN ERROR. MR. STALLINGS AGREED TO REIMBURSE THE DEPARTMENT FOR THIS BOND RATHER THAN RETURN IT FOR CANCELLATION. "7. NECESSARY ADJUSTMENTS HAVE BEEN MADE IN ALL WITHHOLDING ACCOUNTS AFFECTING MR. STALLINGS' GROSS EARNINGS, AND HE HAS BEEN ISSUED A CORRECT WAGE AND TAX STATEMENT, W-2, FOR CALENDAR YEAR 1968.'

UPON THE BASIS OF THE FACTS AND INFORMATION CONTAINED THEREIN, AS WELL AS THAT CONTAINED IN YOUR LETTER OF DECEMBER 19, 1968, IT APPEARS THAT AT THE TIME OF RECEIPT OF THE ERRONEOUS PAYMENTS OR SHORTLY THEREAFTER YOU WERE AWARE OR REASONABLY SHOULD HAVE BEEN AWARE OF THE FACT THAT OBVIOUS ERRORS HAD BEEN MADE IN YOUR PAY AND UNDER THOSE CIRCUMSTANCES YOU REASONABLY SHOULD HAVE EXPECTED THE GOVERNMENT TO RECOVER THE OBVIOUS OVERPAYMENTS.

SECTION 201.5 OF THE STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY PROVIDES IN PERTINENT PART:

"CLAIMS OF THE UNITED STATES ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY MAY BE WAIVED IN WHOLE OR IN PART IN ACCORDANCE WITH THE PROVISIONS OF SEC. 201.4 WHENEVER:

"/B) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OF PAY OCCURRED THROUGH ADMINISTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. * * *"

IN THE CIRCUMSTANCES OF YOUR CASE THE COLLECTION OF THE OVERPAYMENTS DOES NOT APPEAR TO HAVE BEEN AGAINST EQUITY AND GOOD CONSCIENCE OR AGAINST THE BEST INTERESTS OF THE UNITED STATES AND, THEREFORE, IT IS NOT CONSIDERED THAT THERE IS ANY PROPER BASIS JUSTIFYING THIS OFFICE TO NOW WAIVE THE CLAIM AGAINST YOU.

ACCORDINGLY, YOUR REQUEST THAT THE GOVERNMENT'S CLAIM AGAINST YOU BE WAIVED UNDER THE AUTHORITY OF PUBLIC LAW 90-616 IS DENIED.

FOR YOUR INFORMATION, WE ENCLOSE A COPY OF THE PAY SCHEDULE FURNISHED OUR OFFICE WHICH SHOWS THE OVERPAYMENTS AND CORRECTIVE ACTION.