Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Kaiserslautern, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/15/2017
Date
The claimant is a Federal civilian employee of the Department of the Army (Army) in Kaiserslautern, Germany. She requests the U.S. Office of Personnel Management (OPM) “authorize and honor [her] official offer of GS-09 Step 6 that [she] formally accepted on May 18, 2016.” We received the claim request on July 12, 2016, and the final agency denial on October 13, 2016. For the reasons discussed herein, the claim is denied.
In an official job offer letter dated May 17, 2016, the claimant was offered and accepted a term position as a Defense Travel Administrator, GS-501-9, in Kaiserslautern, Germany. The job offer stated her salary would be set at “GS-09 Step 6 $42,823.00 per year” and on May 18, 2016, she accepted the offer. During in-processing on May 31, 2016, the claimant discovered that the correct salary amount for a GS-9, step 6, based on the 2016 pay table for the overseas area, was $49,958.00 per year, as opposed to the offered $42,823.00. Recognizing the pay discrepancy, the claimant informed Army that the dollar amount on her job offer was incorrect. The claimant later received a revised job offer letter dated June 7, 2016, correcting her step and salary to “GS-09 Step 1 $42,823.00.”[1]
In a clarification letter written to the claimant dated October 4, 2016, Army states that the original offer letter dated May 17, 2016, “contained a typographical error, incorrectly indicating [she] would begin work as a GS-0501-9 step 6.” Army also states in the letter that “[the claimant’s] beginning step was calculated in accordance with relevant law and regulation,” and that “the requirements of law and regulation cannot be altered based on the error in [her] offer.”[2]
The claimant contends she and the agency had a “legal[ly]-binding offer that was accepted…on May 18, 2016” and that she considers her “original accepted offer [her] contract for employment.” However, it is well established that where a Federal employee holds his or her position by virtue of appointment, any entitlement to compensation must be based solely on the applicable statutes and regulations, and those statutes and regulations do not give rise to an implied-in-fact contract. See Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (“[A]bsent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government”; see also Schism v. United States, 316 F.3d 1259, 1275 (Fed.Cir.2002) (noting that “[f]ederal employees, both military and civilian, serve by appointment, not contract…”)) Therefore, the Government’s offer letter for the claimant’s position and by extension any benefits extended therein does not constitute a “legally-binding contract” as asserted by the claimant. See OPM File Numbers 13-0001, December 24, 2013, and 15-0017, June 6, 2015.
Further, 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). Therefore, that the claimant’s job offer letter erroneously identified the offered position as GS-9, step 6, does not create an entitlement not otherwise permitted by statute and its implementing regulations.
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.
[1] Although the claimant states that the agency had “hire[d] [her] at one pay rate and then after [she] had already started working, [told her that her] annual pay is being reduced by $7,135,” the SF-50 documenting her appointment to the position shows she was appointed at GS-9, step 1. Thus, her pay was not “retroactively reduced” as she asserts.
[2] Under section 531.211 of title 5, Code of Federal Regulations (CFR), implementing the provisions of section 5333 of title 5, United States Code, an agency must set the pay of a newly appointed employee at the “minimum rate of the highest applicable rate range,” i.e., at step 1, except as provided in section 531.212. The latter section allows for setting pay for a newly-appointed employee at a higher step, but it requires documentation and approval requirements that must be completed prior to the candidate entering on duty, which was not done in this case.
See 5 CFR 531.212(e).