B-239859, Nov 13, 1990

B-239859, Nov 13, 1990

CIVILIAN PERSONNEL - Compensation - Overpayments - Debt collection - Statutes of limitations CIVILIAN PERSONNEL - Compensation - Overpayments - Error detection - Debt collection - Waiver DIGEST: Waiver of erroneous overpayments of pay to 25 Foreign Service Nationals is granted where all the qualifications for waiver have been met and the employees were unaware they were being overpaid. Since the waiver request was received in this Office within 3 years from the date of our prior decision, 67 Comp.Gen. 457 (1988), which first definitely determined that they were overpaid, the requirements of the statute of limitations for waiver applications in 5 U.S.C. Sec.5584(b)(2) (1988) have been met.

Jean Le Bail, et al. - Waiver - 3-Year Statute of Limitations:

This decision is in response to a request for waiver under the provisions of 5 U.S.C. Sec. 5584 (1988), by the Associate Comptroller, Financial Operations, United States Department of State, on behalf of 25 Foreign Service National (FSN) employees who were employed at State's Regional Administrative Management Center, Paris, France. For the following reasons, we grant waiver of the employees' debts.

This request for waiver is the direct result of a decision of the Comptroller General, Roger B. Feldman, 67 Comp.Gen. 457 (1988). We held therein, among other things, that where an improper certification of salary payments was intentionally made by an authorized certifying officer of the Department of State to 25 Foreign Service National employees, such salary overpayments constituted debts owed to the United States by the employees. The Department had a responsibility to attempt to recover the overpayments and upon notification of their indebtedness, the 25 FSN employees could (1) repay the amounts owed, (2) contest the indebtedness, or (3) request waiver under 5 U.S.C. Sec. 5584. /1/

The Department of State, in requesting that waiver be granted, has expressed concern that the 3-year statute of limitations for filing a waiver claim in 5 U.S.C. Sec. 5584(b)(2) (1988), would prevent this Office from considering the waiver request since the overpayments occurred between November 28, 1982, and May 10, 1983.

Section 5584(b)(2) provides that a request for waiver must be received in the agency concerned or this Office within 3 years from the date the erroneous payment was discovered. See 4 C.F.R. Sec. 91.5(a) (1990). The Department of State recommends that we do not apply the limitation period in this case since a Committee of Inquiry into Fiscal Irregularities recommended in 1983 that repayment not be sought from the FSNs, as they had no knowledge that the payments made to them were improper.

The names of the employees and the amounts of the waiver requests are as follows:

NameAmount of Overpayment

Jean Le Bail $ 341.63

Jean Lecomte 405.47

Jacqueline Bresson 826.63

Nicole Andreau 434.59

Juan Godoy y Barroso 152.33

Daniele Friedlander 372.99

Claude Tapia 451.40

Marie Baudorre-Picape 185.93

Claudine Calo 486.12

Catherine Masi 843.43

Michel Garcia y Arrieta 407.71

Gerard Renaud 756.06

Phillippe Guedan653.01

Paulette Joliet Brangeon 157.94

Lucette Jochim 206.10

Liliane Marillier 286.74

Suzanne Perivier 271.06

Bernard Pergola 305.78

Suzanne Chemouny 109.77

Claire Sabrah 376.35

Patrick Hanesse 908.39

T. Grehan 898.31

Pierre Masi 197.14

Camille Trumer 912.87

Claude Parent 253.14

TOTAL: $11,200.89

We have held that the provisions of the waiver statute apply to Foreign Service Nationals. 50 Comp.Gen. 329 (1970). Thus, the employees involved in this case are eligible for relief. See Trevor V. Davis, et al., B-227411.2, Aug. 21, 1990. The controlling date in determining the timeliness of an application for waiver is the date when the erroneous payment was discovered by the administrative office, and not when the employee was notified of the erroneous payment. 54 Comp.Gen. 133 (1974). However, we have also held that the question as to when the discovery occurred is a factual determination, and it is the date it is first definitely determined by an appropriate official that an erroneous payment had been made. 54 Comp.Gen. 133, supra, at 136; Reuben O. Bowman, et al., B-208811, Aug. 2, 1983.

We believe that under the circumstances presented here, the date of issuance of our decision, Roger B. Feldman, 67 Comp.Gen. 457, on June 13, 1988, was the date that it was first definitely determined that an erroneous payment had been made. On that date we advised the Department that the 25 FSNs were indebted to the United States and one of the choices the agency had was to request waiver. Prior to that date the Department had attempted to collect the amount of the debt only from the certifying officer, and to determine the extent of the certifying officer's liability. Thus, there was no attribution of the indebtedness to the Foreign Service Nationals.

Therefore, since the request for waiver was received in this Office within 3 years from the date of our decision, which definitely determined that the FSNs were indebted to the government and provided that waiver was an alternative, the timeliness requirements of section 5584(b)(2) for waiver applications have been met. Cf., Sidelle Wertheimer, 68 Comp.Gen. 86, supra.

Absent any fraud, misrepresentation, fault, or lack of good faith on the part of an employee receiving an erroneous payment, the Comptroller General may waive collection of such payment if collection would be against equity and good conscience and not in the best interests of the United States. 5 U.S.C. Sec. 5584 (1988).

There is no indication of fraud, misrepresentation, or lack of good faith on the part of the employees. The employees received overpayments of pay in 1982 and 1983 because of an improper certification of payments of pay made by an authorized certifying officer of the Department of State. Further, the employees were unaware of the fact that they were being overpaid. Therefore, they were without fault in the matter. Trevor V. Davis, et al., B-227411.2, supra.

Accordingly, waiver of overpayments to the 25 FSN employees is hereby granted.

/1/ Letter to Roger B. Feldman, Comptroller, Dept. of State, dated June 13, 1988 (B-222732).