B-183850, MAR 18, 1976

B-183850, MAR 18, 1976

EMPLOYEE OF BUREAU OF MINES RETIRED EFFECTIVE DECEMBER 31, 1974, AFTER BEING ADVISED BY LOCAL PERSONNEL OFFICE THAT HE HAD BEEN APPOINTED AS REEMPLOYED ANNUITANT EFFECTIVE JANUARY 1, 1975. APPOINTMENT WAS NOT EFFECTIVE UNTIL APPROVED BY BUREAU OF MINES HEADQUARTERS ON JANUARY 23, 1975. CLAIMANT WORKED DURING JANUARY 1 THROUGH JANUARY 22, 1975, BUT WAS NOT PAID. HE MAY BE PAID REASONABLE VALUE OF SERVICES DESPITE LACK OF APPOINTMENT IN VIEW OF FACT THAT HAD COMPENSATION BEEN PAID, COLLECTION THEREOF COULD HAVE BEEN WAIVED UNDER 5 U.S.C. 5584. 52 COMP.GEN. 700 (1973).

JAMES W. JENSEN - COMPENSATION FOR SERVICE PRIOR TO APPOINTMENT:

THIS ACTION IS IN RESPONSE TO A REQUEST FROM MS. MYLDRED N. JONES, AN AUTHORIZED CERTIFYING OFFICER OF THE BUREAU OF MINES, DEPARTMENT OF THE INTERIOR, FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN THE NAME OF MR. JAMES W. JENSEN, A REEMPLOYED ANNUITANT, REPRESENTING COMPENSATION FOR THE PERIOD OF JANUARY 1 THROUGH JANUARY 22, 1975.

MR. JENSEN WAS EMPLOYED AT THE ROLLA METALLURGY RESEARCH CENTER, ROLLA, MISSOURI, UNTIL DECEMBER 31, 1974, WHEN HE RETIRED. WELL IN ADVANCE OF HIS ANTICIPATED RETIREMENT, MR. JENSEN APPROACHED HIS SUPERVISER, THE RESEARCH DIRECTOR AT THE CENTER, AND INFORMED HIM OF HIS INTENT TO RETIRE. DURING A VISIT TO WASHINGTON, D.C. ON JULY 19, 1974, THE RESEARCH DIRECTOR INFORMED THE ASSISTANT DIRECTOR - METALLURGY OF MR. JENSEN'S INTENT TO RETIRE AND REQUESTED APPROVAL TO REHIRE HIM AS AN ANNUITANT. VERBAL APPROVAL WAS GIVEN BY THE ASSISTANT DIRECTOR - METALLURGY, WHO WAS ONE OF THE TWO APPROVING OFFICIALS REQUIRED FOR SUCH A PERSONNEL ACTION. HE LATER VERBALLY REAFFIRMED HIS APPROVAL ON OCTOBER 11, 1974, DURING A VISIT TO THE CENTER. ON NOVEMBER 19, 1974, MR. JENSEN SUBMITTED HIS APPLICATION FOR RETIREMENT AND REQUESTED TO BE HIRED AS AN ANNUITANT WITHOUT A BREAK IN SERVICE. THE WESTERN ADMINISTRATIVE OFFICE, MR. JENSEN'S SERVICING PERSONNEL OFFICE, RECOMMENDED APPROVAL; TENTATIVELY SET THE DATES FOR SUCH ACTIONS AS DECEMBER 31, 1974, AND JANUARY 1, 1975, RESPECTIVELY; FORWARDED ALL DOCUMENTS TO BUREAU OF MINES HEADQUARTERS IN WASHINGTON, D.C.; AND INFORMED THE RESEARCH DIRECTOR AT THE CENTER OF THE ABOVE ACTIONS ON DECEMBER 26, 1974. THE RESEARCH DIRECTOR ERRONEOUSLY ASSUMED THAT THIS MEANT FINAL APPROVAL OF MR. JENSEN'S REEMPLOYMENT AND ACCORDINGLY, MR. JENSEN REPORTED TO WORK ON JANUARY 2, 1975.

MR. JENSEN WAS EMPLOYED AS A GRADE GS-14 BEFORE RETIREMENT AND THE POSITION THAT HE WAS TO BE APPOINTED TO AS A REEMPLOYED ANNUITANT WAS TO BE COMPENSATED AS A GRADE GS-14. THE FINAL APPROVING AUTHORITY FOR A POSITION AT THIS GRADE LEVEL IN THE BUREAU OF MINES IS AT THE DIVISION OF PERSONNEL IN WASHINGTON, D.C., SUBJECT TO THE APPROVAL OF THE APPROPRIATE ASSOCIATE DIRECTOR AND ASSISTANT DIRECTOR. SUCH APPROVAL WAS GIVEN AND MR. JENSEN RECEIVED A TEMPORARY APPOINTMENT EFFECTIVE JANUARY 23, 1975, NOT TO EXCEED JUNE 30, 1975, AS A PART-TIME REEMPLOYED ANNUITANT. HOWEVER, MR. JENSEN WAS NOT PAID FOR THE PERIOD OF JANUARY 1 THROUGH JANUARY 22, 1975, AND HAS NOW CLAIMED $747.16 IN COMPENSATION FOR THAT PERIOD. THE TOTAL ON THE VOUCHER SHOWS $727.16 AS THE COMPENSATION MR. JENSEN WOULD BE ENTITLED TO FOR THE PERIOD JANUARY 1 THROUGH JANUARY 22, 1975.

THE AUTHORIZED CERTIFYING OFFICER FRAMES THE QUESTION SUCCINCTLY: "IN VIEW OF THE EVENTS OUTLINED ABOVE, MAY THE VOUCHER BE CERTIFIED FOR PAYMENT AND IS MR. JENSEN ENTITLED TO COMPENSATION FOR THE DAYS HE WORKED AND TO THE BENEFITS OF HOLIDAY AND LEAVE THAT WOULD HAVE ACCRUED?"

WHERE AN ADMINISTRATIVE ERROR RESULTS IN AN OVERPAYMENT OF PAY OR ALLOWANCES THROUGH NO FAULT OF THE EMPLOYEE, OUR OFFICE MAY CONSIDER THE CIRCUMSTANCES OF THAT OVERPAYMENT AND, IF APPROPRIATE, WAIVE COLLECTION OF THE OVERPAYMENT UNDER THE PROVISIONS OF SECTION 5584 OF TITLE 5 OF THE UNITED STATES CODE, AS AMENDED. EVEN IF SOME OR ALL OF THE OVERPAYMENT HAS BEEN REPAID TO THE GOVERNMENT BY THE EMPLOYEE PRIOR TO A DETERMINATION THAT A WAIVER OF COLLECTION OF THE OVERPAYMENT WOULD APPLY UNDER THE ABOVE CITED SECTION 5584 OF TITLE 5, THAT AMOUNT WHICH HAD BEEN REPAID WOULD NECESSARILY BE REFUNDED TO THE EMPLOYEE. MR. JENSEN HAS NOT RECEIVED ANY SALARY FOR THE WORK PERIOD IN QUESTION. IN THAT CONNECTION, WE HAVE STATED THE FOLLOWING (52 COMP.GEN. 700, 702 (1973)):

"ORDINARILY, WHERE AN ADMINISTRATIVE ERROR HAS BEEN DISCOVERED IN SUFFICIENT TIME TO AVOID THE MAKING OF AN ERRONEOUS PAYMENT, THERE IS NOT INVOLVED A SITUATION CALLING FOR WAIVER AS NO OVERPAYMENT HAS OCCURRED AND THE EMPLOYEE INVOLVED IS PAID PRECISELY WHAT IS DUE HIM FOR THE SERVICES RENDERED. UNDER THE GENERAL RULE, THERE IS NO BASIS FOR RELIEF IN THE INSTANT CASE.

"HOWEVER, THE INSTANT SITUATION DOES CONTAIN A UNIQUE ELEMENT SETTING IT APART FROM THE USUAL CASE OF ERROR DISCOVERED PRIOR TO PAYMENT. (THE CLAIMANT) HAS NOT BEEN PAID ANYTHING FOR THE SERVICES HE RENDERED THE GOVERNMENT. MOREOVER, HE WOULD NOT ONLY HAVE BEEN ENTITLED TO CONSIDERATION FOR WAIVER IF HE HAD BEEN PAID, BUT INDEED UNDER THE DE FACTO RULE REFERRED TO HE WOULD HAVE BEEN ENTITLED TO RETAIN THE AMOUNT INVOLVED AS A MATTER OF RIGHT. IT THEREFORE SEEMS APPROPRIATE WHERE NO PAYMENT AT ALL IS PROVIDED FOR SERVICES RENDERED TO CONSIDER FOR PURPOSES OF THE WAIVER STATUTE, THAT THE ADMINISTRATIVE ERROR AND OVERPAYMENT AROSE AT THE POINT IN TIME WHEN (THE CLAIMANT) ENTERED ON DUTY WITH THE UNDERSTANDING OF A GOVERNMENT OBLIGATION TO PAY FOR HIS SERVICES. PARTICULARLY DOES THIS SEEM SO WHEN IT IS RECOGNIZED THAT REFUNDED OVERPAYMENTS ULTIMATELY WAIVED ARE REDISBURSED TO THE EMPLOYEES INVOLVED.

"IN THE CIRCUMSTANCES, BEARING IN MIND THE INTENT OF THE CONGRESS AS EXPRESSED IN THE LEGISLATION CITED - THAT INDIVIDUALS SHOULD NOT BE PENALIZED AS A RESULT OF GOVERNMENT ERRORS - WE WOULD NOT OBJECT TO PAYMENT FOR SERVICES RENDERED BY (THE CLAIMANT)."

THE ABSENCE OF A VALID APPOINTMENT FOR THE PERIOD IN QUESTION IS NOT OBJECTIONABLE SINCE WE HAVE PREVIOUSLY HELD THAT THE LACK OF A VALID APPOINTMENT IS NO OBSTACLE IN VIEW OF THE SERVICES RENDERED IN GOOD FAITH AND UNDER THE COLOR OF AUTHORITY. 55 COMP.GEN. 109, 111 (1975).

ACCORDINGLY, WE CONCLUDE THAT MR. JENSEN SHOULD BE COMPENSATED BY THE GOVERNMENT FOR THE PERIOD THAT HE WORKED BUT DID NOT HAVE AN EFFECTIVE APPOINTMENT. THE RATE OF COMPENSATION FOR MR. JENSEN SHOULD BE THE REASONABLE VALUE OF HIS SERVICES WHICH HE RENDERED TO THE GOVERNMENT FROM JANUARY 1 THROUGH JANUARY 22, 1975. SINCE MR. JENSEN WAS SUBSEQUENTLY APPOINTED AS A REEMPLOYED ANNUITANT TO BE COMPENSATED AT THE RATE PROVIDED FOR A GRADE GS-14, AND $727.16, WHICH, BASED ON THE ANNUAL COMPENSATION OF A GRADE GS-14, IS THE AMOUNT WHICH MR. JENSEN SHOULD RECEIVE, INCLUDING PAY FOR THE HOLIDAY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT. SEE 55 COMP.GEN. 109, 112 (1975). IT FOLLOWS THAT MR. JENSEN WOULD ALSO BE ENTITLED TO BE CREDITED WITH LEAVE THAT WOULD HAVE ACCRUED DURING THIS PERIOD.