B-180559, MAR 11, 1974

B-180559: Mar 11, 1974

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CONDITIONS FOR WAIVER OF A CLAIM BY THE GOVERNMENT FOR OVERPAYMENT OF SALARY ARE NOT MET WITHIN THE INTENT OF SUBSECTION 91.5(C) OF TITLE 4. CODE OF FEDERAL REGULATIONS WHERE NEW EMPLOYEE IS ADVISED BY RECEIPT OF STANDARD FORM 50 THAT SALARY WILL BE $9. 053 PER ANNUM BUT HE IS PAID AND RECEIVES BIWEEKLY EARNINGS STATEMENTS INDICATING THAT HIS SALARY IS $10. 865 BECAUSE HIS FAILURE TO REPORT DISCREPANCY TO APPROPRIATE OFFICIALS IS CONSIDERED EMPLOYEE'S FAULT WHICH PRECLUDES WAIVER. JARMAN: THIS ACTION IS AN APPEAL FROM A SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED OCTOBER 2. JARMAN WAS OVERPAID IN A GROSS AMOUNT OF $911.48 DURING THE PERIOD FEBRUARY 25. THE OVERPAYMENT WAS THE RESULT OF AN ADMINISTRATIVE ERROR IN PREPARING MR.

B-180559, MAR 11, 1974

CONDITIONS FOR WAIVER OF A CLAIM BY THE GOVERNMENT FOR OVERPAYMENT OF SALARY ARE NOT MET WITHIN THE INTENT OF SUBSECTION 91.5(C) OF TITLE 4, CODE OF FEDERAL REGULATIONS WHERE NEW EMPLOYEE IS ADVISED BY RECEIPT OF STANDARD FORM 50 THAT SALARY WILL BE $9,053 PER ANNUM BUT HE IS PAID AND RECEIVES BIWEEKLY EARNINGS STATEMENTS INDICATING THAT HIS SALARY IS $10,865 BECAUSE HIS FAILURE TO REPORT DISCREPANCY TO APPROPRIATE OFFICIALS IS CONSIDERED EMPLOYEE'S FAULT WHICH PRECLUDES WAIVER.

TO MR. ROGER D. JARMAN:

THIS ACTION IS AN APPEAL FROM A SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED OCTOBER 2, 1973, WHICH DENIED WAIVER UNDER AUTHORITY OF SECTION 5584 OF TITLE 5, U.S.C. OF A CLAIM OF THE UNITED STATES AGAINST MR. ROGER D. JARMAN FOR OVERPAYMENT OF SALARY.

THE RECORD SHOWS THAT AS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA) MR. JARMAN WAS OVERPAID IN A GROSS AMOUNT OF $911.48 DURING THE PERIOD FEBRUARY 25, 1972, THROUGH JUNE 24, 1972. THE OVERPAYMENT WAS THE RESULT OF AN ADMINISTRATIVE ERROR IN PREPARING MR. JARMAN'S PAYROLL RECORD TO SHOW THAT HE WAS COMPENSATED FROM THE DATE OF HIS APPOINTMENT ON FEBRUARY 25 AT THE RATE OF GS-7, STEP 7, $10,865 PER ANNUM RATHER THAN AT THE RATE OF GS-7, STEP 1, $9,053 PER ANNUM, THE LATTER RATE BEING THE STEP RATE SHOWN ON HIS STANDARD FORM 50 APPOINTMENT INSTRUMENT.

WHILE THE STANDARD FORM 50 CLEARLY SHOWED THE POSITION HELD AS BEING CLASSIFIED AS GS-7/1, $9,053 PER ANNUM, EARNINGS STATEMENTS RECEIVED BY MR. JARMAN FOR EACH BIWEEKLY PAY PERIOD STATED HIS BASE SALARY AS $10,865, THE RATE PAYABLE AT THE SEVENTH STEP OF GRADE 7. THE EARNINGS STATEMENTS DID NOT SHOW THE STEP OF GRADE 7 AT WHICH MR. JARMAN WAS EMPLOYED AND THE NET AMOUNTS HE RECEIVED FOR EACH OF THE NINE PAY PERIODS IN QUESTION WERE DIFFERENT DUE TO VARYING NUMBERS OF REGULAR HOURS AND OVERTIME WORKED. HOWEVER, THE STATEMENTS WERE EXPLICIT AS TO AMOUNTS RECEIVED FOR REGULAR AND OVERTIME HOURS AND CONSISTENTLY SHOWED THE BASE RATE AS $10,865 AND THE REGULAR BIWEEKLY GROSS RATE AS $417.60.

MR. JARMAN DID NOT QUESTION THE DISCREPANCY BETWEEN THE INFORMATION CONCERNING HIS SALARY STATED ON THE SF-50 AND HIS EARNINGS STATEMENTS UNTIL, SUBSEQUENT TO HIS EMPLOYMENT BY FAA, HE SOUGHT ANOTHER GOVERNMENT POSITION AND DISCOVERED THAT, IF APPOINTED AT THE FIRST STEP OF GS-7, THE SALARY WOULD BE APPROXIMATELY $1800 PER ANNUM LESS THAN THE RATE OF HIS SALARY RECEIVED AT FAA. THE ADMINISTRATIVE REPORT STATES THAT IT WAS AT THAT TIME THAT MR. JARMAN RAISED THE QUESTION WITH FAA CONCERNING THE DISCREPANCY BETWEEN THE SALARY HE HAD RECEIVED AT THAT AGENCY AND THE AMOUNT OFFERED AT ANOTHER AGENCY OF THE GOVERNMENT.

IN A LETTER OF JANUARY 17, 1974, REQUESTING RECONSIDERATION OF THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION DENYING WAIVER, MR. JARMAN STATES THAT AT THE TIME HE WAS CONSIDERING EMPLOYMENT BY FAA THE RATE OF HIS GROSS AND TAKE HOME PAY WAS A MATTER OF NEGOTIATION. HE STATES THAT HE WAS "AT LEAST UNDER THE IMPRESSION" THAT HE WOULD RECEIVE NET PAY OF $200 PER WEEK.

SINCE THE QUESTION OF COMPENSATION WAS APPARENTLY A MATTER OF SUBSTANTIAL IMPORTANCE, IT IS REASONABLE TO ASSUME THAT MR. JARMAN WAS AWARE THAT HIS ANNUAL RATE OF PAY WOULD BE $9,053, THE FIRST STEP RATE FOR GRADE GS-7. INDEED, UNDER PROVISIONS OF SECTION 5333 OF TITLE 5, UNITED STATES CODE, NO AUTHORITY EXISTED FOR AN INITIAL APPOINTMENT AT A HIGHER RATE. ALTHOUGH WE WERE UNABLE TO OBTAIN ANY SPECIFIC INFORMATION FROM FAA CONCERNING THE DISCUSSIONS PRIOR TO THE EMPLOYMENT OF MR. JARMAN WE WERE ADVISED INFORMALLY BY AN APPROPRIATE EMPLOYEE OF THAT AGENCY THAT IT WOULD HAVE BEEN UNLIKELY THAT SALARY MATTERS WERE DISCUSSED WITH A PROSPECTIVE EMPLOYEE IN TERMS OF WEEKLY NET AMOUNTS BUT THAT SALARY IS DISCUSSED IN TERMS OF ANNUAL SALARY RATES FOR CLASSIFIED POSITIONS. THUS, IT IS DIFFICULT TO UNDERSTAND THE BASIS UPON WHICH MR. JARMAN FORMED THE IMPRESSION THAT HE WOULD BE COMPENSATED AT A RATE OF $200 WEEKLY.

HOWEVER, HAD MR. JARMAN BEEN UNDER A MISUNDERSTANDING AS TO HIS SALARY ARRANGEMENT, IT WOULD SEEM REASONABLE THAT HE WOULD HAVE RAISED A QUESTION AS TO THE RATE HE SHOULD EXPECT UPON RECEIPT OF THE STANDARD FORM 50 WHICH SHOWED AN ANNUAL SALARY OF $9,053 OR SIGNIFICANTLY LESS THAN AN AMOUNT EQUIVALENT TO $200 WEEKLY. FURTHER, UPON RECEIPT OF HIS BIWEEKLY EARNINGS STATEMENTS IT WOULD SEEM REASONABLE FOR MR. JARMAN TO HAVE INQUIRED ABOUT THE DISCREPANCY BETWEEN THE SALARY OF $9,053 AS STATED ON THE SF-50 AND THE $417.60 BIWEEKLY REGULAR GROSS AMOUNT STATED ON THOSE STATEMENTS.

SUBSECTION 91.5(C) OF TITLE 4, CODE OF FEDERAL REGULATIONS, PROVIDES, WITH RESPECT TO CONDITIONS FOR WAIVER OF CLAIMS PURSUANT TO 5 U.S.C. 5584 AS FOLLOWS:

"(C) 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 OR ALLOWANCES 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 MEMBER OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY OR ALLOWANCES WHICH WOULD REQUIRE A REASONABLE PERSON TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS PAY OR ALLOWANCES, ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE OR MEMBER FAILS TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS. ***."

WHILE THE ABOVE-QUOTED LANGUAGE REFERS TO AN UNEXPLAINED INCREASE IN PAY, WE BELIEVE IT MAY REASONABLY BE APPLIED TO THE RECEIPT OF INITIAL SALARY AT A RATE IN EXCESS OF THAT ANTICIPATED. THEREFORE, ALTHOUGH NOTHING IN THE RECORD SUGGESTS THE EXISTENCE OF FRAUD, MISREPRESENTATION, OR LACK OF GOOD FAITH ON THE PART OF MR. JARMAN, THE RECORD BEFORE US TENDS TO SHOW THAT HE WAS NOT ENTIRELY WITHOUT FAULT IN FAILING TO CALL THE ATTENTION OF PROPER AUTHORITIES TO THE DISCREPANCIES IN THE STATEMENTS HE RECEIVED CONCERNING THE PAY TO WHICH HE WAS ENTITLED.

ACCORDINGLY, THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN DENYING WAIVER IS SUSTAINED.