BNUMBER:  B-260850
DATE:  September 26, 1995
TITLE:  Nancy Bottomlee-Waiver-Temporary Quarters Subsistence
Expenses

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Matter of:Nancy Bottomlee-Waiver-Temporary Quarters Subsistence 
          Expenses

File:     B-260850

Date:     September 26, 1995

DIGEST

Employee appeals partial denial of waiver of erroneous payments for 
temporary quarters subsistence (TQSE) expenses where she was 
incorrectly told by the agency that she had up to 2 years to begin the 
entitlement.  Relying on this information, she delayed occupancy of 
temporary quarters, entered into a lease agreement, paid rents due, 
and was later told by the agency that she was ineligible for TQSE 
because she did not begin occupancy within 30 days of reporting for 
duty.  Based on additional evidence, we waive repayment of that 
portion of the erroneous payment which represents funds she actually 
expended in reliance on the erroneous authorization prior to 
notification of error.

DECISION

This decision is in response to correspondence from Ms. Nancy J. 
Bottomlee, who is appealing from our claims settlement Z-2927948, 
February 17, 1995, which granted partial waiver of her debt incident 
to an overpayment of temporary quarters subsistence expenses (TQSE).  
Repayment of an additional portion of her TQSE is granted for the 
following reasons.

BACKGROUND

Ms. Bottomlee, a civilian employee of the Navy, accepted a position 
with the Air Force at Eglin Air Force Base, Florida, during a 
reduction in force at Pensacola Naval Air Station, Florida.  She was 
informed by the Relocation Coordinator, Human Resources Office in 
Pensacola, that she was authorized TQSE and had up to 2 years to 
request the entitlement.  Based on this information, beginning 
February 7, 1994, Ms. Bottomlee commuted daily to her new duty station 
until her house was sold in June 1994.  She then began to occupy 
temporary quarters on June 22, 1994, at Eglin.  On July 27, 1994, in a 
telephone conversation and in a July 28, 1994, letter, she was 
notified by the Navy that occupancy of temporary quarters should have 
started no later than 30 days from the date she reported for duty.  
Consequently, the Navy determined that she was ineligible to receive 
TQSE, that she had been erroneously paid TQSE, and that she must repay 
the full amount of the overpayment; $3,455.59.

Ms. Bottomlee sought a waiver of her indebtness, and the Air Force 
recommended waiver of $2,648.43, representing the TQSE and withholding 
tax allowance overpayments received by Ms. Bottomlee during the period 
of June 22 through July 28, 1994, and denied waiver of $807.16, 
representing the payments received by Ms. Bottomlee after she became 
aware of the possible error on July 27, 1994.  Our claims settlement 
agreed with the Air Force recommendation.  Ms. Bottomlee appeals that 
decision.

In her appeal, Ms. Bottomlee argues that all of her moving decisions 
were based on the incorrect guidance she received from the agency.  
She has provided additional evidence of her reliance on the erroneous 
agency authorization; namely a copy of a 60-day lease she entered into 
on June 21, 1994.  She states that all rents were paid prior to her 
receiving agency notification of error.  Consequently, it is her view 
that all overpayments should be waived.

OPINION

Section 5584 of title 5, United States Code, provides authority for 
waiving claims for erroneous payments of pay and certain allowances 
made to federal employees, if collection of the claim would be against 
equity and good conscience and not in the best interests of the United 
States.  Generally, these criteria are met by a finding that the claim 
arose from administrative error with no indication of fraud, fault, 
misrepresentation, or lack of good faith on the part of the employee 
or other person having an interest in obtaining waiver.  In this case, 
the agency determined that the overpayments were initiated by an 
administrative error by the agency, and there is no indication in the 
record that the error was caused by fraud, misrepresentation, fault or 
lack of good faith.

We have held that an employee who accepts payments after notice that 
they may be erroneous cannot reasonably expect to be able to retain 
them and should make provision for eventual repayment.[1]  We have 
also held that when an employee is assured by the proper official that 
payments are allowed, and the employee reasonably relies on such 
assurance in good faith, waiver, in a proper case, may be granted.[2]

In Ms. Bottomlee's case, the record indicates that she received notice 
of possible error from the agency on July 27, 1994, by telephone, and 
on July 28, 1994, by agency letter.  However, the additional 
documentation provided by Ms. Bottomlee shows that she entered into a 
60-day lease on June 21, 1994, in reliance on the erroneous 
authorization previously provided by the agency.  According to the 
provisions of the lease, her final rental payment was paid on July 21, 
1994; thus, she paid all rental expenses prior to agency notification 
of error.

For this reason, we find that the collection of the part of the 
overpayment used to meet the lease obligation would be against equity 
and good conscience and not in the best interest of the United States.  
Accordingly, we find that Ms. Bottomlee actually expended $575.00 
during this period of TQSE in reliance on the previous erroneous 
authorization.  Thus, under the standards set forth above, we grant 
waiver of the erroneous payment used to pay the rental expenses 
actually prepaid by Ms. Bottomlee during the period of July 29 through 
August 20, 1994, totaling $575.00.  We deny waiver of the remaining 
$232.16 erroneously paid to Ms. Bottomlee for the same period because 
she expended that amount after receiving notice of error and should 
have reasonably expected to return this amount to the government.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. Ronald L. Porcella, B-255591, Aug. 10, 1994, and decisions cited.

2. Mary F. Lopez, B-236856, Dec. 15, 1989; William F. Shea, B-243327, 
Sept. 16, 1991.