Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of the Navy
Washington Navy Yard, D.C.
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/27/2018
Date
The claimant was a Supervisory General Engineer assigned to the Public Works Department within Naval Facility (NAVFAC) Europe, Africa, and Southwest Asia (EURAFSWA), in Rota, Spain, during the claim period. He seeks back pay in the amount of $110,500, plus interest, as a matter of equity in connection with his former position. The claim was transferred to U.S. Office of Personnel Management (OPM) by the U.S. Civilian Board of Contract Appeals, where the claimant originally sent his claim request. OPM received his claim on July 19, 2016, and the agency administrative report (AAR) on July 25, 2016.
On August 6, 2008, the claimant submitted his resume and a request to be non-competitively considered for a Supervisory General Engineer position directly to the agency’s hiring manager prior to the official vacancy announcement. On November 20, 2008, the agency extended an offer of employment to the claimant for non-competitive placement for a Supervisory General Engineer, YF-0801-2, position located in Rota, Spain, with a basic annual salary of $90,000. At the time of the offer, the claimant was employed as a General Engineer, YD-0801-3 with NAVFAC, in Washington, DC, under the National Security Personnel System (NSPS) with a basic salary of $107,160. The claimant accepted the agency’s non-competitive employment offer for the YF-801-2 position, including the $17,160 decrease in annual salary, and the personnel action was effective on December 21, 2008. The claimant asserts the agency failed to offer him “saved pay” (i.e., retained pay) based on the YD-801-3 position he held at his previous command (i.e., NAVFAC Washington D.C.).
The agency maintains the claimant was not entitled to receive retained pay in accordance with Department of Defense Instruction (DoDI) 1400.25, Volume 536, 3.c. (10), because he did not compete for the Supervisory General Engineer position in Rota, Spain, through a formal recruitment program. Instead, it maintains he “volunteered for the position” and was non-competitively appointed as a “name select”. In addition, the agency asserts the claimant did not formally request a higher rate of pay after his tentative job offer. Further, the agency asserts no pay setting error was made nor was the claimant denied a higher rate of pay required by nondiscretionary administrative regulation or policy. Therefore, the agency maintains not only was the claimant not entitled to a higher rate of pay, but that it lacked the authority to grant a retroactive pay increase.
Part 9901 of title 5, Code of Federal Regulations (CFR), effective November 25, 2008, and in effect during the claim period, contained the governing regulations concerning pay administration for the Department of Defense National Security Personnel System. Section 9901.356 (i)(7), indicated generally pay retention did not apply in circumstances where a reassignment or reduction in band was at the employee’s request. Upon examination of documented statements made by the claimant, and confirmed by his agency, we find he requested and accepted non-competitive placement into the Supervisory General Engineer position with NAVFAC EURAFSWA, in Rota, Spain, with full knowledge of the YF-801-2 grade and the $17,160 decrease in annual pay. Therefore, the reduction in band was at the claimant’s request and consequently he was not entitled to retained pay for the claim period. Therefore, we find no reason to disturb the agency’s decision.
Section 550.804 (a) of 5 CFR, states, when an appropriate authority has determined that an employee was affected by an unjustified or unwarranted personnel action, the employee shall be entitled to back pay under 5 U.S.C. 5596, only if the appropriate authority finds that the unjustified or unwarranted personnel action resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentials otherwise due the employee. However, we find the agency has performed no unjustified or unwarranted personnel actions with regard to setting the claimant’s pay for the claim period. Therefore, his claim for back pay is denied.
Finally, section 3702(b) of title 31 U.S.C. (i.e., the Barring Act), specifies claims against the United States must be presented to the appropriate official or agency within six years after the claim accrues and does not merely establish administrative guidelines, but specifically prescribes the time within which a claim must be received in order for it to be considered on its merits. Therefore, since OPM received the claimant’s claim on July 19, 2016, no portion of the claim occurring prior to July 19, 2010, would have been considered. However, since we find the claimant is not entitled to pay retention during the claim period, it is neither appropriate nor necessary to further consider the Barring Act at 31 U.S.C. 3702(b).
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.