Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Springfield, Virginia
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/18/2018
Date
The claimant was a Federal civilian employee of the National Geospatial-Intelligence Agency (NGA) in Springfield, Virginia, during the claim period. He asserts the agency breached an employment contract and seeks “correction of [his] pay rate” and back pay in the amount of $12,893.54, plus interest. For the reasons discussed herein, the claim is denied.
On July 14, 2016, NGA extended a conditional offer of employment (COE) to the claimant selecting him for a Contract Specialist, pay band 4, position. The agency’s COE offered a base salary of $96,004, and a local market supplement of $23,790, for a total annual salary of $119,794. The offer letter also required the claimant to submit an official transcript of the highest degree obtained. After accepting the COE, the claimant states he resigned from his position at the time and withdrew consideration for employment from other potential employers. Thereafter, the agency sent the claimant a second COE, dated August 16, 2016, offering a reduced base salary of $88,618, and a local market supplement of $21,960, for a total annual salary of $110,578. The agency explains the reason for reducing the salary offer by $9,216 in its decision, dated January 3, 2017, to the claimant as follows:
One of the requirements for the COE is to submit a transcript to support the highest level of education obtained. Upon receipt of your transcript, it was determined that your obtained degree did not support the original pay setting. Subsequently, your COE was corrected to reflect pay appropriate for your obtained educational level (Bachelor’s degree completed; [Juris Doctor] in progress).
The claimant disagrees with the agency’s decision, stating in his claim request to OPM that NGA entered into a “valid and enforceable” contract to pay him an annual salary of $119,794 for calendar year 2016. Based on standard annual increases, he states his salary should have then been calculated at $123,234 in 2017 and $130,894 in 2018. Because he asserts his acceptance of the COE constitutes a legally binding contract, the claimant characterizes the subsequent salary offer reduction as a contact breach as the agency failed to obtain new consideration by negotiating with him to modify the terms of the contract. Alternatively, he states that even if no breach in contract exists, his claim supports an “economic duress defense or the application of promissory estoppel,” explaining in his claim request to OPM:
A contract is voidable in equity when a party enters into a contract under duress. Economic duress is the use of wrongful or unlawful conduct that creates fear of economic hardship which prevents the exercise of free will in engaging in a business transaction. There was no reasonable alternative but to accept the second offer.
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…NGA’s promised salary within the July 2016 offer can be enforced under the equitable doctrine of promissory estoppel. Under promissory estoppel a promise can be enforced if a promisee is injured or suffers a loss after relying on that promise. In essence this doctrine gives the decision authority the ability to make the situation right to ensure justice and prevent unfairness…The NGA made a promise in its July 2016 offer, and it was foreseeable that an individual would rely on this to his detriment, for instance by ending job search activities and taking actions to end current employment.
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 agency’s COE to the claimant and, by extension, any salary offer extended therein does not constitute a contract as he attempts to assert. See OPM decisions 13-0001, dated December 24, 2013; 13-0019, dated March 18, 2014; and 13-0044, dated January 23, 2014.
As for the claimant’s assertion that NGA’s “promised salary...can be enforced under the equitable doctrine of promissory estoppel,” OPM doesn’t share the same opinion on this issue. 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 given by a Government employee cannot bar the Government from denying benefits 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). An employee is entitled only to the salary of the position to which he or she is appointed. United States v. Testan, 424 U.S. 392 (1976); B-232695. Therefore, that the claimant was initially misinformed as to his entitlement to salary via the July 14, 2016, COE, that error does not confer eligibility not otherwise permitted by statute or its implementing regulations.
Under Department of Defense Instruction 1400.25-V2006, effective March 3, 2012, pay-setting authority is delegated to the Heads of Department of Defense components with positions, like the claimant’s, covered by the Defense Civilian Intelligence Personnel System. At our request for additional information, the agency provided the pay-setting guidance established for Contract Specialist positions, identifying the relevant experience and education required at each pay band which is further divided into quartiles corresponding to a step range under the General Schedule pay table. The agency provides further explanation regarding the claimant’s pay-setting action as follows:
Mr. Snyder’s salary offer was determined by identifying his years of relevant experience (6 years) and education (Bachelor’s degree; in progress J.D.) as described in his resume and transcript. Applicants with this level of relevant experience and education fall within the 2nd quartile for band 4 Contract Specialists, allowing for a salary offer at GS13 Step 7. This is the salary that was offered to Mr. Snyder (GS 13 Step 7 in 2016: base salary $88,618 plus locality for Springfield VA $21,960 for a total salary of $110,578).
The claims jurisdiction authority of OPM flows from section 3702 of title 31, United States Code, and is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. In claims such as this, our role is to determine if agency regulations and policies were applied appropriately to the claimant. The agency’s pay-setting guidance shows Contract Specialists, pay band 4, are assigned to the third quartile (with a salary range at GS-13, step 7 to 10) when relevant education and experience includes, in part, a master’s degree and 7 to 10 years of experience or a bachelor’s degree with 9 to 12 years of experience. Because his education and experience fell short of the description for the third quartile, the agency set his pay within the second quartile (with a salary range at GS-13, step 4 to 7), which is appropriate when relevant education and experience includes a bachelor’s degree with 6 to 10 years of experience. In light of the foregoing, we conclude the agency properly established the claimant’s pay in accordance with controlling guidance.
Further, we have determined the agency’s actions were based on controlling statutes, regulations, and pay practices. The claim is accordingly denied for the reasons previously stated in this decision and the claimant is not entitled to any back pay.
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.