Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Okinawa, Japan
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/06/2018
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) in Okinawa, Japan. She requests that her annual salary be retroactively set at $51,258 (representing the amount offered in her firm job offer letter), back pay for the difference in pay, and to receive $6,000 offered as a retention bonus. The Office of Personnel Management received the claim request on April 13, 2016, and the final agency denial on May 20, 2016. For the reasons discussed herein, the claim is denied.
The claimant received an official job offer letter dated December 11, 2013, offering her a term position as a Victim Advocate, GS-101-9, in Okinawa, Japan. The job offer stated her salary would be set at $51,258.00 per year. Thereafter, she accepted the offer. In a clarification letter written to the claimant dated February 27, 2015, the agency stated “at the time of the job offer [the claimant] [was] a federal employee GS-9 step 6 with an annual salary of $48,488. The $51,258 salary in [the] tentative and firm job offers was equivalent to the GS-9 step 8 and was incorrect. Federal pay setting regulations do not permit step increases when moving between positions at the same grade, GS-9.”
Further, in a letter dated March 25, 2014, addressed to Civilian Personnel Action Center, Civilian Human Resources Activity in Camp Zama, Japan, the Deputy to the Garrison Commander in Okinawa appeared to authorize a retention bonus in the amount of $6000, which would be paid bi-weekly in $1000 installments. The agency states that the U.S. Army Garrison in Okinawa ultimately decided not to pay a retention incentive.
Section 531.213 of title 5, Code of Federal Regulations (CFR) provides rules for setting pay upon change in position without change in grade. It states:
For an employee who is moved laterally (by transfer, reassignment, change in type of appointment, change in official worksite, or other change in position) from one GS position to a different GS position without a change in grade or a break in service, the agency must determine the employee’s payable rate of basic pay and any underlying rate(s) of basic pay based on the new position of record, new official worksite, and the step (or relative position range for a GM employee) in effect before the position change. If an employee is eligible to receive a higher rate under the maximum payable rate rule in § 531.221, the agency may choose to apply that rule. If an employee is entitled to pay retention, the agency must apply the rules in 5 CFR part 536.
The record shows, and is not in dispute by the claimant, that she laterally transferred into her Victim Advocate position in Okinawa. Therefore, as provided by 5 CFR 531.213, the claimant’s payable rate of basic pay was correctly set at the GS-9, step 6, rate of $48,974, based on her new position in Japan and step in effect before to the position change.
While it is unfortunate that the claimant was misinformed in the final offer as to her entitlement to salary, that error does not provide a basis for additional compensation. It is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981).
The only remaining issue, then, is to determine whether the claimant can find relief for $6,000 seemingly offered by the agency as a retention incentive. Under 5 CFR 575.306(a), an authorized agency official retains sole and exclusive discretion to approve a retention incentive for an employee. While the Deputy to the Garrison Commander in Okinawa appears to have authorized a retention incentive, there is no evidence that the retention incentive was approved in final or put into effect. Thus, the employee was not entitled to payment. Though subject to OPM review and oversight, OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. OPM does not conduct investigations or preside over adversary hearings in adjudicating claims, but relies on the written record submitted by the parties. See Frank A. Barone, B-229439, May 25, 1988. The burden of proof is on the claimant to establish the liability of the United States, and where the agency’s determination is reasonable, OPM will not substitute its judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995.
For the reasons stated above, the claim is denied. This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.