B-168506, MAR. 20, 1970

B-168506, MAR. 20, 1970

TO MR. JOSEPH BAKUNAS:

YOUR LETTER OF FEBRUARY 9, 1970, REQUESTS A SECOND REVIEW OF THE ACTION TAKEN BY OUR OFFICE ON OCTOBER 6, 1969, DENYING YOUR REQUEST FOR WAIVER OF THE GOVERNMENT'S CLAIM AGAINST YOU FOR REPAYMENT OF EXCESS PAY COVERING THE PERIOD MARCH 23, 1968, TO MARCH 7, 1969, UNDER THE PROVISIONS OF THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90-616, 5 U.S.C. 5584.

IN DECISION B-168506, JANUARY 21, 1970, WE STATED THAT:

"YOUR REQUEST FOR WAIVER WAS NOT ALLOWED BECAUSE IT WAS CONSIDERED REASONABLE FOR YOU TO MAKE INQUIRY AS TO WHY YOUR PAY WAS NOT REDUCED AS A RESULT OF YOUR DEMOTION. YOU SAY THAT THERE WAS A SLIGHT REDUCTION IN YOUR PAY FOLLOWING THE DEMOTION AND THAT YOU ACCEPTED THAT REDUCTION AS THE ADJUSTMENT REQUIRED BY YOUR DEMOTION.

"THE POST OFFICE DEPARTMENT ADVISES US THAT FOR THE PAY PERIOD MARCH 9 TO 22, 1968, YOU WERE PAID THE GROSS AMOUNT OF $302.38, AND THE NET AMOUNT OF $231.51 REFLECTED THE ADDITIONAL DEDUCTION OF $1.67 FOR UNION DUES. THE DEPARTMENT FURTHER ADVISES THAT FOR THE PAY PERIOD MARCH 23 - APRIL 5, 1968, THE BEGINNING PERIOD OF THE OVERPAYMENT, ONLY THE USUAL DEDUCTIONS WERE MADE ON THE GROSS PAY OF $302.38, THE NET PAY BEING $233.18. IN THE FIRST PAY PERIOD IN EACH MONTH THEREAFTER YOUR PAY WAS REDUCED BY $1.67 REPRESENTING UNION DUES. THE ONLY OTHER ADDITIONAL REDUCTION REPORTED BY THE DEPARTMENT COMMENCED IN THE PAY PERIOD JUNE 29 TO JULY 12, 1968, WHEN THE FEDERAL WITHHOLDING TAX WAS INCREASED BY THE 10 PERCENT SURCHARGE, RESULTING IN AN ADDITIONAL WITHHOLDING IN YOUR CASE OF $3.75.

"THE DEPARTMENT ALSO REPORTS THAT YOU WERE FURNISHED POD FORMS 1223, EARNINGS AND DEDUCTIONS STATEMENTS, SHOWING THE GROSS PAY, DEDUCTIONS, AND NET PAY FOR EACH PAY PERIOD.

"WE ARE OF THE VIEW THAT YOU SHOULD HAVE BEEN AWARE OF THE REASONS FOR BOTH THE $1.67 AND $3.75 ADDITIONAL REDUCTIONS IN YOUR PAY. IN ANY EVENT IT SHOULD HAVE BEEN OBVIOUS TO YOU, AS AN EMPLOYEE WITH 22 YEARS OF SERVICE, THAT THE DEMOTION RESULTING IN A DECREASE IN YOUR ANNUAL PAY RATE FROM $7,862 TO $7,334 WOULD HAVE NECESSITATED A SUBSTANTIAL REDUCTION OF YOUR GROSS BIWEEKLY PAY.

"IN THE CIRCUMSTANCES, YOU COULD NOT REASONABLY HAVE EXPECTED TO RETAIN THE EXCESS BIWEEKLY PAY WITHOUT BEING OBLIGATED TO MAKE REFUND THEREOF WHEN THE ERROR WAS DISCOVERED. THEREFORE, THE CONCLUSION THAT YOU WERE NOT WITHOUT FAULT IN THE MATTER IS CONSIDERED TO HAVE BEEN CORRECT.

"THE ACTION OF OCTOBER 6, 1969, DENYING YOUR REQUEST FOR WAIVER IS SUSTAINED."

YOU WERE DEMOTED, AT YOUR OWN REQUEST, FROM CARRIER TECHNICIAN, PFS 6, STEP 10, TO CARRIER, PFS-5, STEP 10, EFFECTIVE MARCH 23, 1968. WHILE APPROPRIATE FORMS WERE DISTRIBUTED TO THE POSTAL DATA CENTER, ACTION WAS NOT TAKEN TO APPROPRIATELY REDUCE YOUR SALARY. WHEN YOU MADE INQUIRY CONCERNING A STEP INCREASE YOU BELIEVED TO BE OVERDUE THE ERROR WAS DISCOVERED AND REPORTED TO THE POSTAL DATA CENTER ON OCTOBER 30, 1968. ACTION WAS TAKEN ON THE OCTOBER 30, 1968, REPORT AND THE OVERPAYMENT WAS AGAIN REPORTED ON JANUARY 22, 1969. THE POSTAL DATA CENTER FINALLY TOOK CORRECTIVE ACTION AS OF MARCH 8, 1969.

YOU POINT OUT THAT WE MADE NO MENTION OF THE CORRESPONDENCE SENT TO THE POSTAL DATA CENTER IN MARCH 1968, OCTOBER 1968, AND JANUARY 1969. YOU FEEL THAT THE POSTAL DATA CENTER MUST BE AT LEAST PARTIALLY AT FAULT, SINCE IT WAS APPROXIMATELY A YEAR AFTER YOUR DEMOTION ON MARCH 23, 1968, WHEN THE OVERPAYMENTS WERE STOPPED DESPITE THE LETTERS OF OCTOBER 1968 AND JANUARY 1969 ADVISING THE POSTAL DATA CENTER OF THE ERROR.

IN DECISION B-168506, WE RECOGNIZED THAT "THE GOVERNMENT'S CLAIM AROSE AS THE RESULT OF THE FAILURE OF THE POST OFFICE DEPARTMENT TO DECREASE YOUR PAY AT THE TIME YOU WERE DEMOTED AT YOUR OWN REQUEST FROM LEVEL 6, STEP 10 ($7,862) TO LEVEL 5, STEP 10 ($7,334) EFFECTIVE MARCH 23, 1968." DENIAL OF YOUR REQUEST FOR WAIVER OF THE CLAIM WAS BASED UPON THE CONCLUSION THAT UNDER THE CIRCUMSTANCES INVOLVED YOU KNEW OR SHOULD HAVE KNOWN THAT YOU WERE BEING OVERPAID AND YOU REASONABLY COULD NOT HAVE EXPECTED TO RETAIN THE EXCESS PAYMENTS WITHOUT HAVING TO MAKE REFUND. IN REACHING THIS CONCLUSION WE WERE AWARE OF THE CORRESPONDENCE TO THE POSTAL DATA CENTER TO WHICH YOU NOW MAKE SPECIFIC REFERENCE. THAT CORRESPONDENCE SERVES ONLY TO CONFIRM THAT YOU WERE AWARE YOU WERE BEING OVERPAID.

SINCE YOUR LETTER OF FEBRUARY 9, 1970, DOES NOT FURNISH ANY DATA WHICH IS NOT ALREADY OF RECORD AND WHICH HAS NOT BEEN FULLY CONSIDERED, WE CAN ONLY SUSTAIN OUR PRIOR ACTIONS DENYING YOUR REQUEST FOR WAIVER.