B-194377 OM, NOV 14, 1979
Highlights
PRECIS-UNAVAILABLE COMPTROLLER GENERAL: HEREWITH IS THE FILE CONCERNING THE INDEBTEDNESS IN THE AMOUNT OF $906.47 OF MS. THE CLAIM WAS FORWARDED TO THIS OFFICE FOR WAIVER CONSIDERATION UNDER THE PROVISIONS OF 5 U.S.C. 5584. WHILE A DECISION WAS BEING MADE ON HER CLAIM. SINCE SHE DECLINED TO HAVE ANY OF THE PERIOD CHARGED AGAINST HER SICK OR ANNUAL LEAVE. IT WAS DETERMINED THAT SHE HAD BEEN OVERPAID $906.47 DURING THE PERIOD FROM JULY 16 THROUGH AUGUST 29. GUNSTON RESULTED FROM PAYMENTS WHICH WERE IN FACT CORRECT WHEN MADE. IN 5 U.S.C. 8118(D) IT IS PROVIDED THAT: IF A CLAIM UNDER SUBSECTION (A) IS DENIED BY THE SECRETARY. THE REFERENCE TO 5 U.S.C. 5584 WAS ADDED BY SENATE AMENDMENTS TO HR 13871 ON AUGUST 12.
B-194377 OM, NOV 14, 1979
PRECIS-UNAVAILABLE
COMPTROLLER GENERAL:
HEREWITH IS THE FILE CONCERNING THE INDEBTEDNESS IN THE AMOUNT OF $906.47 OF MS. LUCILLE M. GUNSTON, AN EMPLOYEE OF THE U. S. CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY. THE CLAIM WAS FORWARDED TO THIS OFFICE FOR WAIVER CONSIDERATION UNDER THE PROVISIONS OF 5 U.S.C. 5584.
THE RECORD SHOWS THAT ON JULY 9, 1975, MS. GUNSTON'S HUSBAND COMPLETED FORM CA-1, FEDERAL EMPLOYEE'S NOTICE OF TRAUMATIC INJURY AND CLAIM FOR CONTINUATION OF PAY/COMPENSATION, ON HER BEHALF, NOTIFYING THE DEPARTMENT OF LABOR OF AN INJURY TO MS. GUNSTON, AND REQUESTING A CONTINUATION OF PAY NOT TO EXCEED 45 DAYS. ON JULY 31, 1975, THE CUSTOMS SERVICE GRANTED HER 45 DAYS OF CONTINUED PAY BEGINNING JULY 16, 1975, AND ENDING AUGUST 29, 1975, WHILE A DECISION WAS BEING MADE ON HER CLAIM. ON SEPTEMBER 20, 1975, THE OFFICE OF WORKERS' COMPENSATION PROGRAMS (OWCP) DENIED HER REQUEST FOR CONTINUATION OF PAY. CONSEQUENTLY, SINCE SHE DECLINED TO HAVE ANY OF THE PERIOD CHARGED AGAINST HER SICK OR ANNUAL LEAVE, IT WAS DETERMINED THAT SHE HAD BEEN OVERPAID $906.47 DURING THE PERIOD FROM JULY 16 THROUGH AUGUST 29, 1975.
BASED ON THE EVIDENCE BEFORE US, WE WOULD INITIALLY CONCLUDE THAT THE OVERPAYMENT RECEIVED BY MS. GUNSTON RESULTED FROM PAYMENTS WHICH WERE IN FACT CORRECT WHEN MADE, AND ONLY BECAME ERRONEOUS WHEN THE OWCP DENIED HER CLAIM. HOWEVER, 5 U.S.C. 8118(A) CONTAINS THE STATUTORY AUTHORITY FOR THE GRANTING OF CONTINUATION OF PAY FOR A PERIOD OF WAGE LOSS DUE TO TRAUMATIC, JOB-RELATED INJURIES, AND IN 5 U.S.C. 8118(D) IT IS PROVIDED THAT:
IF A CLAIM UNDER SUBSECTION (A) IS DENIED BY THE SECRETARY, PAYMENTS UNDER THIS SECTION, SHALL, AT THE OPTION OF THE EMPLOYEE, BE CHARGED TO SICK OR ANNUAL LEAVE, OR SHALL BE DEEMED OVERPAYMENTS OF PAY WITHIN THE MEANING OF SECTION 5584 OF TITLE 5, UNITED STATES CODE.
SECTION 5584 OF TITLE 5, U.S.C. PROVIDES SOLELY FOR THE WAIVER OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES BY THE HEAD OF AN AGENCY OR BY THE COMPTROLLER GENERAL. THE STATEMENT IN 5 U.S.C. 8118(D) WOULD SEEM TO IMPLY THAT SUCH OVERPAYMENTS AS OCCURRED IN MS. GUNSTON'S CASE MUST BE CONSIDERED UNDER THE WAIVER LAW. THE REFERENCE TO 5 U.S.C. 5584 WAS ADDED BY SENATE AMENDMENTS TO HR 13871 ON AUGUST 12, 1974. THE SENATE REPORT ACCOMPANYING HR 13871 (93D CONGRESS, 2D SESSION, CALENDAR NO. 1038, REPORT NO. 93-1081, DATED AUGUST 8, 1974) STATED ON PAGE 4 THAT:
IN THE EVENT A CLAIM IS DENIED, THE EMPLOYEE MAY UTILIZE EITHER ACCUMULATED SICK LEAVE, ANNUAL LEAVE, OR HAVE AN ADJUSTMENT MADE TO REGULAR PAY AS AN OVERPAYMENT IN ACCORDANCE WITH EXISTING LAW.
THIS PASSAGE WOULD SEEM TO CONTEMPLATE THAT COLLECTION WOULD BE REQUIRED WHEN A CLAIM IS DENIED AND THE EMPLOYEE DOES NOT HAVE SICK OR ANNUAL LEAVE TO USE FOR THE DAYS NOT WORKED. THE HOUSE REPORT CONTAINS SIMILAR LANGUAGE TO THE EFFECT THAT COLLECTION IS REQUIRED. NOWHERE IN THE LEGISLATIVE HISTORY IS MENTION MADE OF THE WAIVER LAW EXCEPT THE CODE CITATION TO 5 U.S.C. 5584. CONSEQUENTLY, WE FEEL THAT THE CITATION TO 5 U.S.C. 5584 IN THE FINAL VERSION OF THE LAW MAY HAVE BEEN IN ERROR, AND THAT THE CITATION INTENDED BY CONGRESS WAS ACTUALLY 5 U.S.C. 5514, THE STATUTE PROVIDING FOR THE PAYMENT BY INSTALLMENT DEDUCTIONS OF CLAIMS AGAINST EMPLOYEES. A CITATION TO 5 U.S.C. 5514 IS CERTAINLY MORE CONSISTENT WITH THE IDEA OF "AN ADJUSTMENT MADE TO REGULAR PAY" MENTIONED IN THE LEGISLATIVE REPORTS.
IF IT SHOULD BE DETERMINED THAT AN OVERPAYMENT OF CONTINUATION OF PAY SUCH AS OCCURRED HERE IS AN ERRONEOUS PAYMENT WHICH MAY BE CONSIDERED FOR WAIVER UNDER 5 U.S.C. 5584, THE QUESTION ARISES AS TO WHETHER WAIVER WOULD ORDINARILY BE APPROPRIATE. WHEN THE EMPLOYEE APPLIES FOR CONTINUATION OF PAY, SHE SIGNS A STATEMENT TO THE EFFECT THAT IF HER CLAIM IS DENIED, SHE UNDERSTANDS THAT CONTINUATION OF HER PAY WILL BE CHARGED TO SICK OR ANNUAL LEAVE OR BE DEEMED AN OVERPAYMENT. THEREFORE, SHE KNOWS FROM THE OUTSET THAT HER CLAIM MIGHT BE DENIED, AND SHOULD THUS BE AWARE OF A POTENTIAL OVERPAYMENT. IN SUCH CIRCUMSTANCES, IT WOULD APPEAR THAT COLLECTION WOULD NOT BE AGAINST EQUITY AND GOOD CONSCIENCE AND WOULD BE IN THE BEST INTERESTS OF THE UNITED STATES. IN ADDITION, GRANTING OF WAIVER IN CLAIMS SUCH AS THIS WOULD IN EFFECT BE GRANTING THE EMPLOYEE THE CONTINUATION OF PAY CLAIM THAT HAD BEEN DENIED BY THE OWCP.
THERE IS ANOTHER ISSUE WHICH ALSO COULD ARISE IF IT IS DETERMINED THAT WAIVER IS APPROPRIATE IN SOME CASES. IF AN EMPLOYEE SUCH AS MS. GUNSTON HAD SICK AND/OR ANNUAL LEAVE TO HER CREDIT AT THE TIME THE CLAIM FOR CONTINUATION OF PAY WAS DENIED, SHE HAD THE OPTION OF DEEMING THE OVERPAYMENT AN OVERPAYMENT OF PAY OR OF CHARGING HER SICK OR ANNUAL LEAVE BALANCES FOR THE PERIOD. IT APPEARS THAT IN SUCH CIRCUMSTANCES, IT MIGHT BE CONSIDERED EQUITABLE TO WAIVE ONLY THE BALANCE OWED AFTER APPLYING ALL THE EMPLOYEE'S SICK AND ANNUAL LEAVE TO THE CLAIM, RATHER THAN APPROVING WAIVER OF THE ENTIRE CLAIM WHILE ALSO LETTING HER RETAIN HER LEAVE BALANCES.
FINALLY, THE FILE SHOWS THAT MS. GUNSTON, WHILE NOT ENTITLED TO CONTINUATION OF PAY FOR THE PERIOD IN QUESTION, MAY BE ENTITLED TO OTHER COMPENSATION FOR THE PERIOD UNDER CHAPTER 81 OF TITLE 5, U.S.C. FOR A WORK -RELATED DISEASE. SINCE THE STATED INTENT OF CONGRESS IN PASSING THE CONTINUATION OF PAY LEGISLATION WAS TO INSURE THAT THE EMPLOYEE DOES NOT SUFFER FINANCIAL HARDSHIP DUE TO THE ADMINISTRATIVE DELAY IN CONSIDERING COMPENSATION CLAIMS, AND NOT TO INCREASE THE AMOUNT OF COMPENSATION DUE THE EMPLOYEE, IT IS OUR VIEW THAT IT WOULD BE APPROPRIATE TO CONSIDER AMOUNTS OF OTHER COMPENSATION DUE THE EMPLOYEE FOR THE SAME PERIOD WHEN WE ARE DETERMINING THE AMOUNT, IF ANY, PROPER FOR WAIVER APPROVAL IN CONTINUATION OF PAY CASES.
IN VIEW OF THE QUESTIONS WE HAVE CONCERNING WHETHER OVERPAYMENTS OF CONTINUATION OF PAY MAY PROPERLY BE CONSIDERED FOR WAIVER, AND THE PROPRIETY OF APPROVING WAIVERS IF SUCH OVERPAYMENTS DO FALL UNDER THE WAIVER LAW, THIS MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.
INDORSEMENT
DIRECTOR, CLAIMS DIVISION
RETURNED. WE HAVE REVIEWED THE LEGISLATIVE HISTORY OF THE CONTINUATION OF PAY (COP) SECTION, 5 U.S.C. 8118, OF THE FEDERAL EMPLOYEES' COMPENSATION ACT (ACT), 5 U.S.C. 8101, ET SEQ., AND HAVE CONCLUDED THAT THERE IS NOTHING TO SUPPORT THE PROPOSITION THAT THE CITATION TO 5 U.S.C. 5584 IN 5 U.S.C. 8118(D) IS IN ERROR. THE HISTORY OF THE ACT SHOWS THAT THE LANGUAGE OF 5 U.S.C. 8118(D) WAS NOT A PART OF THE ORIGINAL BILL (H.R. 13871, 93D CONG., 2D SESS. (1974)) BUT WAS ADDED AS A RESULT OF AMENDMENTS MADE BY THE SENATE COMMITTEE ON LABOR AND PUBLIC WORKS. SEE: 120 CONG. REC. 27, 673 (1974).
APART FROM THE STATEMENT IN THE CONGRESSIONAL RECORD AMENDING 5 U.S.C. 8118 TO ESTABLISH A PROCESS FOR COLLECTING DENIED COP PAYMENTS THERE IS LITTLE LEGISLATIVE HISTORY PERTAINING TO THIS POINT. THE LEGISLATIVE HISTORY WHICH DOES EXIST IMPLIES THAT ONCE A CLAIM FOR COP IS DENIED COLLECTION OF THE PAYMENTS MADE IS REQUIRED. THIS IS EVIDENCED BY THE STATEMENT THAT "ONCE A CLAIM IS DENIED THE EMPLOYEE MAY UTILIZE EITHER ACCUMULATED SICK LEAVE, ANNUAL LEAVE OR HAVE AN ADJUSTMENT MADE TO REGULAR PAY AS AN OVERPAYMENT IN ACCORDANCE WITH EXISTING LAW." S. REP. NO. 93-1081, 93D CONG., 2D SESS. 4 (1974). THERE IS NO INDICATION AS TO HOW OR WHY CONGRESS CHOSE TO USE 5 U.S.C. 5584 OR WHAT CONGRESS INTENDED BY THE PHRASE "ADJUSTMENT MADE TO REGULAR PAY AS AN OVERPAYMENT." THE STATUTE SPECIFICALLY PROVIDES THAT ALL CLAIMS FOR COP DENIED BY THE DEPARTMENT OF LABOR ARE TO BE CONSIDERED OVERPAYMENTS AND SUBJECT TO REQUESTS FOR WAIVER UNDER 5 U.S.C. 5584 IF AN EMPLOYEE SO CHOOSES. THIS ELIMINATES ANY NEED TO DECIDE AT WHAT POINT IN TIME, IF AT ALL, COP PAYMENTS, WHICH HAVE BEEN DENIED, BECOME ERRONEOUS PAYMENTS.
THE FACT THAT CONGRESS HAS MANDATED WAIVER CONSIDERATION FOR ALL COP PAYMENTS WHICH ARE SUBSEQUENTLY DENIED SETS THESE CLAIMS APART FROM OTHER WAIVER CLAIMS. CRITERIA FOR WAIVER OF THIS TYPE OF CLAIM MUST BE DIFFERENT BECAUSE THE USUAL CRITERIA ARE NOT READILY APPLIED TO THE SITUATION INVOLVED. THUS, CRITERIA APPROPRIATE TO THESE DEBT CLAIMS SHOULD BE DEVELOPED.
IN DETERMINING WAIVER IN THESE CASES, YOU SHOULD CONSIDER WHETHER THE EMPLOYEE KNEW OR SHOULD HAVE KNOWN THAT HE WAS IN RECEIPT OF AN ERRONEOUS OVERPAYMENT. THUS, IF THE EMPLOYEE'S REQUEST FOR COP WAS NOT MADE IN GOOD FAITH (E.G. HE KNEW HE WAS NOT COVERED BY THAT PROVISION) HE IS TO BE CONSIDERED AT FAULT AND WAIVER SHOULD NOT BE ALLOWED.
THE TOTAL AMOUNT OF THE CLAIM IS TO BE CONSIDERED FOR WAIVER. HOWEVER, THE AMOUNT OF LEAVE AN EMPLOYEE HAS AVAILABLE MAY BE A SIGNIFICANT FACTOR IN ANY DECISION ON WHETHER AND TO WHAT EXTENT TO GRANT WAIVER.