Office of the General Counsel

Date: July 31, 1998
Matter of: [xxx]
File Number: S001535

OPM Contact: Murray M. Meeker

On April 15, 1998, the General Accounting Office transferred a request for an advance decision that it had received from the [xxx].⁽¹⁾ [xxx] has asked whether it may make payments in settlement of a claim from an employee of the [xxx] based on the failure of [xxx] to offer the employee the opportunity to contribute to a Thrift Savings Plan account with concurrent agency contributions, and later to timely offer the employee the opportunity to participate in the [xxx] faculty retirement plan, administered by the [agency], with concurrent agency contributions.

The [xxx] which administers the [xxx] has advised that payment by the agency should be limited to an amount equal to the lost Agency Matching Contributions and earnings on these contributions as authorized under 5 U.S.C.  8477(e)(3)(C)(i) and 5 C.F.R.  1605.6(a)(4). In accordance with this guidance from the [xxx], we have determined that for the period from January 1, 1987 to December 15, 1990, when the employee became eligible to participate in the [xxx] faculty retirement plan, the agency is authorized to make payment to the employee for the lost Agency Matching Contributions and for the earnings that these contributions would have accrued during this period, but that the agency is not authorized to make payment for amounts that the employee alleges that he would have contributed or for earnings that the employee's contributions would have accrued. See 5 U.S.C. 8432a(a)(2)(A) and 5 C.F.R.  1606.5(d).

As concerns the unmade contributions to the faculty retirement plan, Congress has authorized the [agency] to provide retirement benefits for [xxx] civilian faculty. 10 U.S.C.  2113(f)(1). In accordance with this general authority, we concur with the agency that it has authority to pay the agency contribution to the faculty retirement plan, i.e., 10% of the employee's basic pay for the period from December 15, 1990, to the date in 1993 when the employee became a member of the faculty retirement plan.⁽²⁾ However, the agency may not reimburse the employee for lost earnings,⁽³⁾ or for any additional tax liability, or for the employee contributions to the faculty retirement plan. The amounts that would have been employee contributions have already been paid to the employee and duplicate payment would constitute a windfall for the employee for which there is no legal authority. Indeed, such payment is barred by statute. 5 U.S.C. 5536. See Canal Zone Government, B-131587, March 24, 1978; and Secret Service Agents, B-202104, July 2, 1981.

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.

¹The authority to issue advance decisions to agencies concerning matters involving compensation and leave has been transferred to the Office of Personnel Management. See 31 U.S.C. 3529(b)(2)(B), as amended by Pub. L. No. 104-316, Title II,  204, and the "Determination with Respect to Transfer of Functions Pursuant to Public Law 104-316" issued by the Director of the Office of Management and Budget on December 17, 1996.

²It has been noted that under [xxx] Instruction 1418, Oct. 29, 1993, the [xxx] Civilian Faculty Benefits Plan provides that agency contributions are contingent on employee contributions. It is assumed that inasmuch as the agency is authorized to establish these requirements, the agency is similarly authorized under the circumstances in this case to waive or otherwise except the claimant from this contingency rule.

³Payment of lost earnings would contravene the long-standing rule against the payment of interest. See 68 Comp. Gen. 220 (1989).