s003070

Office of the General Counsel

Date: June 23, 1999
Matter of: [xxx]
File Number: S003070

OPM Contact: Murray M. Meeker

The [agency] has forwarded an employee's claim for temporary quarters subsistence allowance (TQSA) to the Office of Personnel Management (OPM). In addition to affirming the [agency's] decision that the TQSA payments were erroneous, this settlement is intended to clarify when an authorized official may waive an erroneous payment under 5 U.S.C.  5584(a)(1), as amended by the General Accounting Office Act of 1996, Pub. L. No. 104-316, 103(d)(1)(B).

On February 6, 1994, while serving as a [xxx] with the [agency] in [xxx] the employee was transferred to a [xxx] position with the [agency] in [xxx]. Although the employee reported for duty in [xxx] on February 7, 1994, he remained at his residency near [xxx] and commuted to his new work site until February 16, 1996, at which time the employee moved into rental property near his [xxx] duty station. In connection with his residence change, the employee received TQSA payments that totalled $14,524.75.

However, the payment of TQSA payments to the employee was erroneous; the period of eligibility for TQSA is 90 days after the employee's arrival at a new post, not 90 days after the employee's residence change. See Department of State Standardized Regulations (DSSR), Chapt. 100, 120. While the employee was not eligible for TQSA, he was entitled to a living quarters allowance (LQA) for this period. Setting off the employee's LQA entitlement of $9,636.08 from the erroneous TQSA payments of $14,524.75, the [agency] computed the employee's indebtedness to be $4,888.67.

The employee requested a waiver. However, the [agency] determined that it was unable to grant or deny the request as a result of [agency] regulations that limit the submission of waiver requests to cases in which all doubt regarding the validity or amount of a debt has been resolved and that inasmuch as the authority to waive collection extends only to erroneous overpayments, the [agency] was precluded from considering the claimant's waiver request before the underlying question had been resolved. After carefully reviewing the employee's claim, OPM affirms the [agency's] determination that the TQSA payments to the employee were erroneous.

However, while OPM concurs that only erroneous payments may be waived under 5 U.S.C. 5584(a)(1), OPM disagrees with the conclusion that a waiver of an indebtedness may not be granted by an authorized official until after OPM has determined that a payment was erroneous. See Joyce Liverca, B-255585, April 20, 1994 (Comptroller General determined that reimbursement for the price of an airline ticket would be waived after the Forest Service had determined that the ticket had been erroneously given to the employee). See also Ronald Bartell, B-225977, April 14, 1988. The General Accounting Office Act of 1996, Pub. L. No. 104-316,  103(d)(1)(B), amended 5 U.S.C.  5584(a)(1) by substituting authorized official for Comptroller General in 5 U.S.C. 5584(a)(1). While Congress provided that the Director of the Office of Management and Budget (OMB) would be the authorized official for executive branch employees (see 5 U.S.C. 5584(g), as added by Pub. L. No. 104-316, 103(d)(3)), on December 17, 1996, the Director of OMB delegated authority to the heads of executive branch agencies to waive collection of erroneous payments to civilian employees.

It is OPM's determination that an appropriate [agency] official should review this matter to determine whether a waiver should be granted. This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.