s001584.1

Office of the General Counsel

Date: January 5, 1999
Matter of: [xxx]
File Number: S001584.1

OPM Contact: Murray M. Meeker

By decision dated November 16, 1998, the Office of Personnel Management (OPM) denied the claimant's request for back pay. The claimant subsequently requested that OPM reconsider his claim. Under OPM's rules of procedure, the claimant does not have a right to reconsideration. See 5 C.F.R. 178.107(a). For the purpose of clarifying our initial decision, however, we exercise our discretion to reconsider this matter. For the reasons discussed below, we affirm the initial decision.

In 1993, the claimant retired from his civilian position with the [agency]. After the claimant's retirement, [agency] officials urged him to return to work, assuring him that if he were to return to work, a waiver would be obtained that would enable him to retain both his retirement benefits and his full salary. The claimant accepted the offer and returned to work, but the waiver was never obtained and in compliance with applicable law, the claimant's salary was reduced by the amount of his retirement benefits. See 5 U.S.C. 8344(a).

The claimant asserts that OPM may retroactively grant his request for waiver at its own discretion. The applicable statute provides, however, that the Director of OPM may grant such waivers only upon the request of the head of the agency. 5 U.S.C.  8344(i). As noted in the initial decision, the agency has not made such a request.

Also, the claimant asserts that he may receive his full salary and annuity as a de facto employee. That doctrine, however, is limited to circumstances in which a person without a valid appointment serves under color of authority and performs services for the Government in good faith. See Jane Hartley, B-189351, August 10, 1977; William A. Keel, Jr., B-188424, March 22, 1977; and 55 Comp. Gen. 109 (1975). In this case, however, that doctrine is not available because the claimant received a valid appointment. It is well settled that an employee may receive the pay only of the position to which he is legally appointed, regardless of the duties actually performed. United States v. Testan, 424 U.S. 392, 406 (1976); Kizas v. Webster, 707 F.2d 524, 535 (D.C. Cir. 1983); and 69 Comp. Gen. 140 (1989).

Finally, the claimant requests, if his claim may not be granted otherwise, that OPM refer his claim to Congress for private relief. Pursuant to 31 U.S.C. 3702(d), OPM may refer to Congress:

a claim against the Government that is timely presented under this section that may not be adjusted by using an existing appropriation, and that the official believes Congress should consider for legal or equitable reasons.

This is an extraordinary remedy, and generally only is available when a person has suffered a substantial personal detriment in reliance on the erroneous advice of government officials. See B-227488, Aug. 1, 1995. An annuity waiver also is an extraordinary remedy, which is to be used only when, "there is exceptional difficulty in recruiting or retaining a qualified employee." 5 U.S.C.  8344(i)(1)(A). As noted in the initial decision, the agency has determined that the claimant's circumstances do not meet this test, and, therefore, the granting of an annuity waiver in this case would put the claimant in a substantially better position than the vast majority of similarly situated reemployed annuitants. While it is unfortunate that the claimant was given erroneous advice, we do not believe this case warrants consideration by the Congress.