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.