B-175499, APR 21, 1972

B-175499: Apr 21, 1972

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FUSCO: REFERENCE IS MADE TO YOUR LETTER OF MARCH 14. THE RECORD SHOWS THAT MISS GIBBS WAS ORIGINALLY ALLOWED $827.26 AS REIMBURSABLE EXPENSES BECAUSE OF HER TRANSFER TO DALLAS. LATER IT WAS DETERMINED THAT SHE WAS ALLOWED AN EXCESSIVE AMOUNT OF $82.30 FOR TEMPORARY QUARTERS PLUS $20. THAT IS. AT A COST OF $8 PER DAY FOR WHICH SHE APPARENTLY WAS OBLIGATED TO PAY EVEN THOUGH ABSENT FROM DALLAS. MISS GIBBS WAS AWAY FROM DALLAS ON TEMPORARY DUTY TRAVEL. DURING THIS PERIOD MISS GIBBS WAS ENTITLED TO PER DIEM BECAUSE OF BEING IN A TEMPORARY DUTY TRAVEL STATUS AND THUS PRECLUDED FROM RECEIVING A TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE. THIS IS SO BECAUSE THE TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE DUPLICATES THE PER DIEM AS INDICATED IN SECTION 2.5B(8) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO.

B-175499, APR 21, 1972

CIVILIAN EMPLOYEE - CHANGE OF PERMANENT STATION - TEMPORARY QUARTERS ALLOWANCE - ERRONEOUS PAYMENT - REQUEST FOR WAIVER FROM COLLECTION - FEDERAL CLAIMS COLLECTION ACT OF 1966 DECISION DENYING A REQUEST OF BARBARA GIBBS FOR WAIVER OF AN ERRONEOUS PAYMENT OF TEMPORARY QUARTERS ALLOWANCE INCIDENT TO HER CHANGE OF PERMANENT STATION FROM AUSTIN TO DALLAS, TEX., AS AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY. THE PAYMENT OF TEMPORARY QUARTERS ALLOWANCE MAY NOT BE REGARDED AS AN ERRONEOUS PAYMENT OF PAY FOR PURPOSES OF WAIVER UNDER 5 U.S.C. 5584, REGARDLESS OF MISS GIBBS' RELIANCE ON CERTAIN MISINFORMATION BY ADMINISTRATIVE OFFICIALS. B-168630, JANUARY 23, 1970. HOWEVER, IT SHOULD BE NOTED THAT THE PROVISIONS OF THE FEDERAL CLAIMS COLLECTION ACT OF 1966 PERMIT PAYMENT OF AN INDEBTEDNESS TO THE UNITED STATES IN INSTALLMENTS AS WELL AS AUTHORIZING COMPROMISE, SUSPENSION, OR TERMINATION OF COLLECTION ACTION BECAUSE OF AN INDIVIDUAL'S FINANCIAL INABILITY TO REPAY THE SAME.

TO MR. A. A. FUSCO:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1972, WITH ENCLOSURES, IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER COLLECTION OF AN ERRONEOUS PAYMENT OF $82.30 FOR TEMPORARY QUARTERS ALLOWANCE TO MISS BARBARA GIBBS INCIDENT TO HER CHANGE OF PERMANENT STATION FROM AUSTIN TO DALLAS, TEXAS, EFFECTIVE OCTOBER 1, 1970, MAY BE WAIVED.

THE RECORD SHOWS THAT MISS GIBBS WAS ORIGINALLY ALLOWED $827.26 AS REIMBURSABLE EXPENSES BECAUSE OF HER TRANSFER TO DALLAS. LATER IT WAS DETERMINED THAT SHE WAS ALLOWED AN EXCESSIVE AMOUNT OF $82.30 FOR TEMPORARY QUARTERS PLUS $20, THE AMOUNT OF TAX WHICH THE AGENCY FAILED TO DEDUCT ON THE ALLOWANCE OF $100 FOR MISCELLANEOUS EXPENSES.

THE TRAVEL ORDER COVERING MISS GIBBS' TRANSFER TO DALLAS AUTHORIZED AN ALLOWANCE FOR TEMPORARY QUARTERS NOT TO EXCEED 30 DAYS. UPON THE ARRIVAL OF MISS GIBBS IN DALLAS, SHE RENTED QUARTERS FROM AN ACQUAINTANCE FOR THE ENTIRE 30 DAYS, THAT IS, OCTOBER 1 TO 30, 1970, AT A COST OF $8 PER DAY FOR WHICH SHE APPARENTLY WAS OBLIGATED TO PAY EVEN THOUGH ABSENT FROM DALLAS. FROM OCTOBER 5, 1970, THROUGH OCTOBER 22, 1970, MISS GIBBS WAS AWAY FROM DALLAS ON TEMPORARY DUTY TRAVEL. DURING THIS PERIOD MISS GIBBS WAS ENTITLED TO PER DIEM BECAUSE OF BEING IN A TEMPORARY DUTY TRAVEL STATUS AND THUS PRECLUDED FROM RECEIVING A TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE. THIS IS SO BECAUSE THE TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE DUPLICATES THE PER DIEM AS INDICATED IN SECTION 2.5B(8) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969 (NOW SECTION 8.2I UNDER THE REVISION OF AUGUST 17, 1971). SEE 47 COMP. GEN. 84 (1967) AND OUR DECISION OF JUNE 14, 1971, B-172739, COPY OF THE LATTER DECISION ENCLOSED.

WE DO NOT UNDERSTAND THE COMPUTATION OF THE EMPLOYEE'S ENTITLEMENT TO THE TEMPORARY QUARTERS ALLOWANCE AS REFLECTED ON THE "TEMPORARY QUARTERS WORKSHEET," ATTACHMENT 1D TO YOUR LETTER. THAT WORKSHEET INDICATES THAT SUCH ALLOWANCE IS PAYABLE FOR 8 DAYS (OCTOBER 10, 11, 17 22) DURING WHICH MISS GIBBS WAS IN TRAVEL STATUS AND ACTUALLY PAID PER DIEM FROM OCTOBER 19 TO 2:30 P.M. OCTOBER 22, 1970. WE NOTE THAT MISS GIBBS DID NOT CLAIM OR RECEIVE PER DIEM FOR 4 DAYS (SATURDAYS AND SUNDAYS) OF HER TEMPORARY DUTY TRAVEL (OCTOBER 10, 11, 17, 18). THE REASON FOR THIS IS NOT SHOWN, BUT IT MAY BE BECAUSE SHE WAS STAYING IN AUSTIN AT HER OLD QUARTERS WHICH SHE HAD NOT AS YET RELINQUISHED. IF THIS BE SO AND SINCE MISS GIBBS WAS LIABLE FOR THE RENT BACK IN DALLAS FOR THOSE DAYS, WE WOULD NOT OBJECT TO THE ALLOWANCE OF PER DIEM FOR SUCH 4 DAYS.

ON THE BASIS OF THE FOREGOING, MISS GIBBS' TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE SHOULD BE RECOMPUTED. WE HAVE TENTATIVELY COMPUTED SUCH AMOUNT HERE AS BEING APPROXIMATELY $237.50 AS OPPOSED TO YOUR COMPUTATION OF $321.88. ASSUMING AN ADDITIONAL ENTITLEMENT OF $100 FOR PER DIEM FOR THE 4 DAYS PREVIOUSLY REFERRED TO, THE INDEBTEDNESS OF MISS GIBBS WOULD BE REDUCED TO APPROXIMATELY $86.68 WHICH INCLUDES THE $20 TAX DEDUCTION NOT WITHHELD.

WITH RESPECT TO THE POSSIBILITY OF WAIVING THIS CLAIM AGAINST MISS GIBBS, YOU ARE ADVISED THAT WE HAVE NO AUTHORITY TO WAIVE A CLAIM OF THE UNITED STATES AGAINST A PERSON OTHER THAN ONE ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY. SEE 5 U.S.C. 5584. THE TERM "PAY" IS DEFINED FOR PURPOSES OF THIS WAIVER AUTHORITY IN 4 CFR 91.2(B) AS FOLLOWS:

"'PAY' MEANS SALARY, WAGES, PAY, COMPENSATION, EMOLUMENTS, AND REMUNERATION FOR SERVICES. IT INCLUDES OVERTIME PAY; NIGHT, SUNDAY STANDBY, IRREGULAR AND HAZARDOUS DUTY DIFFERENTIAL; PAY FOR SUNDAY AND HOLIDAY WORK; PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE; AND SEVERANCE PAY. IT DOES NOT INCLUDE EXPENSES OF TRAVEL AND TRANSPORTATION OR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS."

SINCE THE INDEBTEDNESS HERE INVOLVED AROSE OUT OF TRAVEL TO A NEW STATION, IT MAY NOT BE REGARDED AS AN "ERRONEOUS PAYMENT OF PAY." SEE OUR DECISIONS OF DECEMBER 7, 1970, B-170744, AND APRIL 2, 1969, B 152040, B- 158422, COPIES ENCLOSED. CONSEQUENTLY, THERE IS NO AUTHORITY UNDER 5 U.S.C. 5584 TO WAIVE MISS GIBBS' INDEBTEDNESS.

WE UNDERSTAND THAT YOU AND MISS GIBBS WERE ADVISED BY THE OEO OFFICE IN WASHINGTON THAT SHE COULD RECEIVE TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE EVEN THOUGH SHE WAS IN TRAVEL STATUS ELSEWHERE. WHILE IT IS REGRETTED THAT MISS GIBBS WAS MISINFORMED BY ADMINISTRATIVE OFFICIALS CONCERNING HER ENTITLEMENT TO THE SUBSISTENCE ALLOWANCE, NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS GRANTED BY STATUTE AND REGULATION BY MISINFORMING THE INDIVIDUALS SO ENTITLED. SEE OUR DECISION OF JANUARY 23, 1970, B-168630, COPY ENCLOSED.

ALTHOUGH MISS GIBBS' INDEBTEDNESS AS FINALLY DETERMINED WOULD NOT BE FOR CONSIDERATION FOR WAIVER, WE INVITE YOUR ATTENTION TO THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 31 U.S.C. 951-953, AND THE STANDARDS ISSUED PURSUANT THERETO, 4 CFR 101-105. THE PROVISIONS THEREOF PERMIT PAYMENT OF AN INDEBTEDNESS TO THE UNITED STATES IN INSTALLMENTS AS WELL AS AUTHORIZING COMPROMISE, SUSPENSION, OR TERMINATION OF COLLECTION ACTION BECAUSE OF AN INDIVIDUAL'S FINANCIAL INABILITY TO REPAY THE SAME.