Office of the General Counsel

Date: October 23, 2000
Matter of: [Claimant]
File Number: 2000-00411

OPM Contact: Robert D. Hendler

The claimant, a former employee of the [agency], asserts that his agency erroneously denied him payment for 302 hours of restored annual leave. He also requests that his agency pay him 15 months wages and a 3 percent retirement adjustment retroactive to January 3, 1998, because he contends that he would not have retired until 15 months later to assure the same monetary compensation. The claimant argues that the Federal Government entered into a binding contract to pay him for the restored annual leave. He asserts that the Federal Government is estopped from now denying the payment due to the promise the Government had made through its agents and the claimant's actions in detrimentally relying on this binding promise. For the reasons discussed herein, the claim is denied.

The claimant was covered under the Civil Service Retirement System (CSRS). On June 9, 1994, the agency changed the claimant's service computation date (SCD) from January 2, 1970 to August 22, 1963 to reflect his National Guard Technician (NGT) Service from January 20, 1962 to June 29, 1968. The change was made retroactive to June 3, 1979. This resulted in the claimant accruing annual leave at eight hours per pay period beginning the fourteenth pay period of 1979 rather than the fourth pay period of 1985, for a total of 302 hours restored leave. On February 25, 1998, the agency notified the claimant that it had erred in making the change in SCD retroactive to his date of appointment. Based on Public Law 101-530 and its implementing regulations, the agency advised the claimant that the change in SCD for earning annual leave should only have been retroactive back to November 6, 1990, the earliest date provided for in the Act.

Several laws govern the treatment of NGT service for leave accrual and retirement purposes for pre-1969 service. Two of them pertain to this claim. Public Law (PL) 99-661, effective November 14, 1986, allowed credit for NGT prior to January 1, 1969 under CSRS if the employee applied to OPM for service credit no later than January 14, 1988 and was employed by the Federal Government in a position subject to CSRS at the time the application was filed. The employee was entitled to credit for leave purposes as of the date the deposit was made.

PL 101-530, enacted November 6, 1990, superseded PL 99-661. It allowed a Federal employee credit for pre-1969 NGT service under CSRS even if the employee did not perform service after 1968 or elected to remain under the State retirement system after 1968. The employee had to apply for service credit and pay a deposit to OPM for retirement credit before final adjudication of the employee's annuity unless the employee was eligible for and elected the alternative annuity. However, PL 101-530 provided for leave credit effective November 6, 1990, or on the date the employee was appointed, whichever was later, whether or not the deposit was made.

The record shows that the claimant applied to OPM on February 19, 1987, to make a retirement deposit for his NGT service. He made installment deposits beginning in 1988 and ending in 1992.

Both laws affect the retirement provisions of Chapter 83 of title 5 U.S.C. and the leave accrual provisions of Chapter 63 of title 5 U.S.C. They provide the opportunity for increased retirement payments if the required funds are deposited prior to retirement (PL 99-661) or final adjudication of the employee's annuity unless the employee was eligible for and elected the alternative annuity (PL 101-530). Because the deposits were made after he was already earning eight hours of leave each pay period (the fourth pay period of 1985), the claimant was not entitled to any retroactive leave adjustment under PL 99-661. Since PL 101-530 overtook PL 99-661 prior to the claimant completing his deposit, he was entitled to leave credit effective November 6, 1990. Since the claimant was earning eight hours of leave each pay period prior to that date, we find the agency acted properly in not paying the claimant for the 302 hours of erroneously restored annual leave.

The claimant seeks to estop the Federal Government from denying him benefits because he mistakenly relied on his agency's assurance that he would receive a lump sum payment for 302 hours of restored annual leave. The Government cannot be estopped from denying benefits that are not permitted by law, even where the claimant relied on mistaken advice from a Government official or agency. A claim for payment of money from the U.S. Treasury contrary to a statutory appropriation is prohibited by the Appropriations Clause of the Constitution, Art. I, 9, cl. 7. Recognition of equitable estoppel could nullify the clause if agents of the Executive were able, by their unauthorized oral or written statements, to obligate the U.S. Treasury contrary to the wishes of Congress. See Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), Falso v. Office of Personnel Management, 116 F.3^rd 459 (Fed Cir. 1997), and Melvin Ackley, Jr, B-200817, April 21, 1981. Therefore, the claimant's request for equitable estoppel must be denied.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

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.

Distribution

[claimant's representative and address]

[agency name and address]