B-180674, NOV 25, 1974

B-180674, NOV 25, 1974

1. DECISION OF APRIL 2, 1974, SUSTAINING SETTLEMENT DETERMINATION THAT EMPLOYEE WAS INDEBTED TO GOVERNMENT FOR $1,722.79 FOR UNAUTHORIZED REIMBURSEMENT OF REAL ESTATE EXPENSES, IS AFFIRMED, ABSENT ANY LEGAL AUTHORITY FOR WAIVER UNDER 5 U.S.C, 5584, AND ABSENT GROUNDS FOR COMPROMISE OR TERMINATION OF COLLECTION ACTION BY AGENCY UNDER FEDERAL CLAIMS COLLECTION ACT. 2. FACT THAT EMPLOYEE SAVED GOVERNEMNT MONEY IN PERFORMANCE OF PAST SERVICES OR THAT HE WOULD BE SAVING GOVERNMENT MONEY IF HE DID NOT HAVE TO REQUEST TRANSFER TO LOWER LIVING COST AREA PROVIDES NO LEGAL BASIS FOR WAIVER OR COMPROMISING DEBT.

DR. BRIAN J. BATTERSBY - INDEBTEDNESS FOR UNAUTHORIZED REIMBURSEMENT OF REAL ESTATE EXPENSES:

THIS RECONSIDERATION ACTION IS IN RESPONSE TO LETTER ON JUNE 14, 1974, FROM BRIAN J. BATTERSBY, D.D.S., EXPRESSING HIS OBJECTION TO OUR DECISION OF APRIL 2, 1974, SUSTAINING THE DETERMINATION OF OUR TRANSPORTATION AND CLAIMS DIVISION, THAT HE WAS INDEBTED TO THE UNITED STATES FOR $1,722.79, FOR EXPENSES INCURRED IN CONNECTION WITH REAL ESTATE TRANSACTIONS INCIDENT TO A TRANSFER OF DUTY STATION AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION. FOR REASONS STATED IN THAT DECISION, IT WAS HELD THAT REIMBURSEMENT OF REAL ESTATE EXPENSES IN THE CIRCUMSTANCES OF DR. BATTERSBY'S SITUATION WAS NOT AUTHORIZED UNDER APPLICABLE REGULATIONS HAVING THE FORCE AND EFFECT OF LAW.

OVERPAYMENTS OF RELOCATION ALLOWANCES WERE SPECIFICALLY EXCLUDED FROM CONSIDERATION FOR WAIVER BY THE AMENDMENTS OF 5 U.S.C. 5584 (SUPP. 2, 1970) MADE BY PUB. L. 92-453, APPROVED OCTOBER 2, 1972, 86 STAT. 760. DR. BATTERSBY CONTENDS THAT THE RESTRICTION SHOULD NOT APPLY TO HIM SINCE HIS CLAIM AROSE IN 1970, PRIOR TO ENACTMENT OF THE WAIVER RESTRICTION. HOWEVER, 0HE PROVISION IS SPECIFICALLY MADE APPLICABLE TO ERRONEOUS PAYMENTS "ON OR AFTER JULY 1, 1960." THEREFORE, THERE IS NO LEGAL AUTHORITY FOR US TO GRANT WAIVER OF HIS INDEBTEDNESS.

IT IS TRUE THAT A COLLECTION ACTION MAY BE TERMINATED UNDER THE FEDERAL CLAIMS COLLECTION ACT, 31 U.S.C. 951-953 (1973), BY THE HEAD OF AN AGENCY WHEN THE DEBTOR HAS NO PRESENT OR PROSPECTIVE ABILITY TO PAY ANY SIGNIFICANT SUM THEREON, OR THE DEBT MAY BE COMPROMISED FOR LESS THAN THE FULL AMOUNT DUE WHEN IT IS IN THE FINANCIAL INTEREST OF THE GOVERNMENT TO DO SO, TAKING INTO ACCOUNT COSTS OF COLLECTION AND ABILITY OF A DEBTOR TO PAY. BY THE SAME TOKEN, THE HEAD OF AN AGENCY OR HIS DESIGNEE IS REQUIRED TO ATTEMPT COLLECTION WHEN THERE IS SUCH PRESENT OR PROSPECTIVE ABILITY TO PAY ON THE DEBT (31 U.S.C. 952). AS LONG AS DR. BATTERSBY IS EMPLOYED, THERE IS SUCH ABILITY TO PAY AND HE AND THE AGENCY SHOULD ARRANGE TO LIQUIDATE THE DEBT BY PAYROLL WITHHOLDING IN ACCORDANCE WITH THE PROVISIONS IN 5 U.S.C. 5514 (1970), UNLESS HE MAKES SOME OTHER SATISFACTORY ARRANGEMENT FOR LIQUIDATING THE INDEBTEDNESS.

WITH REFERENCE TO DR. BATTERSBY'S ASSERTIONS THAT IN THE PERFORMANCE OF HIS SERVICES AS A GOVERNMENT EMPLOYEE, HE HAS EFFECTED SAVINGS TO THE GOVERNMENT WHICH, IN ONE INSTANCE, EXCEEDED THE AMOUNT OF HIS INDEBTEDNESS, AND THAT HAD HE REQUESTED TRANSFER TO A LOWER LIVING COST AREA, THE COST TO THE GOVERNMENT WOULD HAVE BEEN GREATER THAN HIS PRESENT DEBT, SUCH CONSIDERATIONS CANNOT SERVE AS A LEGAL BASIS FOR EITHER WAIVER OR FOR COLLECTION ACTION TERMINATION OR COMPROMISE OF HIS INDEBTEDNESS.

INSOFAR AS DR. BATTERSBY HAS MADE REFERENCE TO THE APPLICATION OF THE INCOME TAX LAWS TO RELOCATION EXPENSES, ON THE THEORY THAT SINCE REIMBURSEMENTS FOR RELOCATION EXPENSES ARE CONSIDERED INCOME FOR TAX PURPOSES, SUCH REIMBURSEMENTS SHOULD ALSO BE CONSIDERED AS SALARY FOR WAIVER PURPOSES, IT MAY BE STATED THAT THE TERM "PAY" AS USED IN PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, WHICH PROVIDES FOR THE WAIVER OF OVERPAYMENT OF PAY, IS DEFINED FOR THE PURPOSES OF THE WAIVER AUTHORITY IN 4 CFR 91.2 (C) AND PRIVIDES AS FOLLOWS:

"(C) 'PAY' AS IT RELATES TO AN EMPLOYEE MEANS SALARY, WAGES, PAY, COMPENSATION, EMOLUMENTS, AND REMUNERATION FOR SERVICES. IT INCLUDES BUT IS NOT LIMITED TO 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 TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES, AND RELOCATION ALLOWANCES PAYABLE UNDER 5 U.S.C. 5724A."

THIS REGULATION HAS THE FORCE AND EFFECT OF LAW, AND IN CONSIDERING THE WAIVER ACT, WE MUST ABIDE BY THE DEFINITION OF THE TERM "PAY" AS OUTLINED IN THE REGULATION CITED ABOVE.

IN VIEW OF THE FOREGOING AND SINCE BOTH THE COMPTROLLER GENERAL AND THE AGENCY HERE CONCERNED ARE BOUND BY THE LAW APPLICABLE TO THIS CASE, THE DECISION OF APRIL 2, 1974, IS HEREBY AFFIRMED.

ON THE QUESTION OF WHAT OTHER REVIEW PROCESSES ARE AVAILABLE TO DR. BATTERSBY IN THIS MATTER, HE IS ADVISED THAT THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO PROCEDURE PRESCRIBED FOR FURTHER ADMINISTRATIVE APPEAL FROM SUCH DECISION. HOWEVER, AFTER DR. BATTERSBY HAS REFUNDED THE ERRONEOUS PAYMENT TO THE GOVERNMENT, HIS ATTENTION IS INVITED TO THE PROVISIONS OF 28 U.S.C. 1346; ID. 1491, UNDER WHICH HE MAY PURSUE ANY CLAIM HE MAY HAVE FOR RELOCATION EXPENSES AGAINST THE GOVERNMENT IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.