B-173386, OCT 8, 1971

B-173386, OCT 8, 1971

CIVILIAN EMPLOYEE - GRADE CHANGE - OVERPAYMENT OF PAY DECISION SUSTAINING A CLAIMS DIVISION DETERMINATION DENYING THE REQUEST OF THEODORE M. DAVID FOR WAIVER OF OVERPAYMENTS OF PAY TOTALING $336 MADE TO HIM AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE. THE REQUEST FOR RECONSIDERATION IS MADE ON THE GROUND THAT CLAIMANT WAS AT NO TIME ENTITLED TO PAYMENT AT ANY OTHER RATE THAN GS-7. THE RECORD CLEARLY INDICATES THAT CLAIMANT ACCEPTED APPOINTMENT AS GS 5, WHICH WAS HIS RATED GRADE AT THE TIME OF APPOINTMENT. ALTHOUGH CLAIMANT'S RATING WAS INCREASED TO GS-7 AFTER THE CIVIL SERVICE COMMISSION WAS NOTIFIED OF HIS QUALIFICATION FOR SUCH GRADE, THIS DOES NOT ALTER THE FACT THAT CLAIMANT WAS OVERPAID, NOR DOES IT PROVIDE A BASIS TO GRANT A WAIVER.

TO MR. THEODORE M. DAVID:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1971, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION DETERMINATION OF JUNE 8, 1971, SUSTAINING THE ADMINISTRATIVE DENIAL OF YOUR REQUEST FOR WAIVER OF OVERPAYMENTS OF PAY TOTALING $336 MADE TO YOU AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE.

THE RECORD INDICATES THAT YOU WERE APPOINTED AS A TAX TECHNICIAN, GS 5, STEP 1, $6,176 PER ANNUM, ON SEPTEMBER 8, 1969, AND THAT THE STANDARD FORM 50 EFFECTING THE ACTION ERRONEOUSLY REFLECTED GS-7, STEP 1, $7,639 PER ANNUM. UPON RECEIPT OF THE FORM 50 YOU NOTIFIED YOUR AGENCY OF THE ERROR AND WERE TOLD THAT IT WOULD BE CORRECTED. THE ERROR WAS NOT CORRECTED AND YOU RECEIVED PAY AS A GS-7. YOU IMMEDIATELY ADVISED YOUR AGENCY OF THIS AND WERE TOLD AGAIN THAT THE ERROR WOULD BE CORRECTED. ALSO, YOU INQUIRED AS TO WHY YOU WERE APPOINTED AS A GS-5 WHEN OTHER APPOINTMENTS TO THE SAME TYPE OF POSITION WERE MADE AT GS-7. AFTER YOU SUBMITTED ADDITIONAL INFORMATION CONCERNING YOUR QUALIFICATIONS, AS ADVISED BY YOUR AGENCY, THE CIVIL SERVICE COMMISSION AUTHORIZED YOUR APPOINTMENT AT GS-7. UPON YOUR PROMOTION IT WAS DETERMINED THAT CORRECTIVE ACTION HAD NOT BEEN TAKEN REGARDING THE GS-5 APPOINTMENT AND YOU REQUESTED WAIVER OF THE OVERPAYMENTS RESULTING FROM THE ADMINISTRATIVE ERROR. THE REQUEST WAS DENIED ON THE GROUND THAT SINCE YOU REPORTED AN OVERPAYMENT THE PROVISIONS OF INTERNAL REVENUE SERVICE MANUAL SUPPLEMENT 17G-182, SECTION 3.08, APPLIED. THIS REGULATION PROVIDES THAT ERRORS POINTED OUT BY THE EMPLOYEE MAY BE ELIGIBLE FOR WAIVER, BUT A CLAIM FOR ANY OVERPAYMENT RESULTING FROM THE SAME ERROR AFTER THE TIME OF RECOGNITION WILL NOT BE ELIGIBLE FOR WAIVER. IN THIS CONNECTION SEE OUR DECISION B 171487, JANUARY 26, 1971, COPY ENCLOSED, WHEREIN IT WAS POINTED OUT UNDER SIMILAR CIRCUMSTANCES THAT IN THE ABSENCE OF OFFICIAL NOTICE THAT THE PAYMENTS WERE NOT IN FACT ERRONEOUS, AN EMPLOYEE COULD NOT REASONABLY EXPECT TO RETAIN THE OVERPAYMENT WITHOUT BEING LIABLE FOR REFUND THEREOF. OUR CLAIMS DIVISION SUSTAINED THE DISALLOWANCE OF YOUR REQUEST FOR WAIVER SINCE THE ACTION WAS NOT CONTRARY TO THE STATUTE OR THE IMPLEMENTING STANDARDS FOR WAIVER, AS INTERPRETED BY THIS OFFICE, AND THE ACTION DID NOT APPEAR TO BE ARBITRARY OR CAPRICIOUS.

YOUR REQUEST FOR RECONSIDERATION OF THE DENIAL OF WAIVER IS MADE ON THE GROUND THAT AT NO TIME WERE YOU ENTITLED TO PAYMENT AT ANY OTHER RATE THAN THE GS-7 RATE. YOU STATE THAT ALL MEMBERS OF YOUR TRAINING GROUP, OTHER THAN YOU, WERE PAID AT THAT RATE AND THAT AS SOON AS YOU BROUGHT THAT FACT TO THE ATTENTION OF THE PERSONNEL OFFICER HE ASSURED YOU THAT THE MATTER WOULD BE CORRECTED IMMEDIATELY. YOU ALSO STATE THAT YOU OFFERED TO RESIGN YOUR POSITION AT THE "PAPER" LEVEL OF GS-5 SO THAT YOU COULD BE APPOINTED AT THE GS-7 LEVEL AND WERE TOLD THAT SUCH DRASTIC ACTION WAS NOT NECESSARY. SINCE THESE MATTERS HAD NOT PREVIOUSLY BEEN CONSIDERED HERE, WE REQUESTED AN ADDITIONAL ADMINISTRATIVE REPORT.

THE REQUESTED REPORT INDICATES THAT YOU WERE INITIALLY APPOINTED FROM THE FEDERAL SERVICE ENTRANCE EXAMINATION REGISTERS MAINTAINED BY THE NEW YORK REGION, UNITED STATES CIVIL SERVICE COMMISSION. BASED UPON THE INFORMATION YOU SUPPLIED THE COMMISSION AT THE TIME YOU TOOK THE EXAMINATION, YOUR ELIGIBILITY WAS RATED AT GS-5. WHEN YOU BROUGHT THE STANDARD FORM 50 ERROR TO THE ATTENTION OF YOUR AGENCY AND INQUIRED ABOUT YOUR CORRECT GRADE, YOU WERE ADVISED THAT IN ORDER FOR YOU TO OBTAIN A HIGHER ELIGIBILITY RATING ADDITIONAL INFORMATION WOULD BE REQUIRED. UPON SUBMISSION OF THE ADDITIONAL INFORMATION, THE COMMISSION SUBSEQUENTLY CERTIFIED YOU AS ELIGIBLE FOR APPOINTMENT FOR GS-7 AND YOU WERE PROMOTED TO THE HIGHER GRADE IN DUE COURSE.

THE RECORD CLEARLY INDICATES THAT YOU ACCEPTED APPOINTMENT AT GS-5 AT WHICH GRADE YOU WERE RATED AT THE TIME OF APPOINTMENT. THE AGENCY STATES THAT HAD YOU SUBMITTED ADDITIONAL PROOF TO THE COMMISSION AT THE TIME YOU TOOK THE EXAMINATION, YOU WOULD IN ALL PROBABILITY HAVE BEEN RATED ELIGIBLE FOR GS-7 AND WOULD HAVE BEEN APPOINTED AT THAT GRADE. HOWEVER, YOU HAD NOT BEEN SO RATED AND ACCORDINGLY THERE WAS NO BASIS TO APPOINT YOU AT GRADE GS-7. UNTIL SUCH APPOINTMENT WAS MADE, THERE WAS NO AUTHORITY AT LAW FOR PAYMENT OF COMPENSATION AT THE GS-7 RATE.

IN REGARD TO YOUR CONTENTION THAT ALL OTHER MEMBERS OF YOUR TRAINING CLASS WERE RATED AS GS-7, THE AGENCY STATES THAT THERE WERE 26 MEMBERS IN YOUR CLASS AND THAT SIX WERE APPOINTED AT GS-5.

IN VIEW OF THE ABOVE THE PREVIOUS ACTION DENYING YOUR REQUEST FOR WAIVER IS SUSTAINED.