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OPM Contact: Murray M. Meeker
The claimant is an employee at the [xxx], in [xxx]. For the
reasons discussed herein, the claimant's request for back pay is
In 1993, the claimant retired from his position with the [xxx].
As reported by the claimant's attorney, after the claimant's
retirement, he was approached by both the [xxx] Commander and the
Deputy Commander, who assured him that if he were to return to
Government service, his salary would not be reduced by the amount
of his civil service retirement benefits. The claimant returned to
civilian employment with the [agency] in 1994.
Reemployed annuitants generally must have the amount of their
annuities deducted from their pay. 5 U.S.C. 8344(a). In certain
limited circumstances, and upon the request of the head of an
agency, the Director of the Office of Personnel Management may
waive this requirement. 5 U.S.C. 8344(i).(1)
It is undisputed that two senior agency officials assured the
claimant that this waiver provision would be invoked on his behalf
and that the claimant relied on this advice when he accepted his
current position. The record also is undisputed that these
officials did not have the authority to make this offer and that,
had proper procedures been followed, the agency would not have
requested a waiver in this case. Thus, this question presented is
whether the claimant's reliance on the erroneous advice of the
agency officials entitles him to the waiver the officials promised
It is well-settled that the erroneous advice of agency officials
may not form the basis for the payment of a claim otherwise barred
by law. OPM v. Richmond, 496 U.S. 414 (1990). Accordingly,
the claim is denied.
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
1 These provisions relate
to employees in the Civil Service Retirement System, which happens
to be the case here. The comparable provisions for Federal
Employees Retirement System employees are found at 5 U.S.C. 8468,
paragraphs (a) and (f).