Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Panama City, Florida
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/04/2020
Date
The claimant is a Federal civilian employee of the Naval Facilities Engineering Command in Panama City, Florida. He requests the U.S. Office of Personnel Management (OPM) reconsider the denial from the Department of the Navy (Navy) of his request for pay retention associated with his transfer from the Air Force Materiel Command (AFMC) to a lower-graded position with the Navy. Specifically, he seeks “Career Salary retention/re-instatement back to [his] previous (GS-0801-13/NH-03) salary amount or GS equivalent of $110,595 from [his] current (GS-0801-12, Step 10) salary of $95,388.” We received the claim request on April 17, 2019, and the agency administrative report on July 24, 2019. For reasons discussed herein, the claim is denied.
The claimant was previously employed by the AFMC at Eglin Air Force Base, Florida, as part of the Department of Defense Civilian Acquisition Workforce Demonstration Project, as a Supervisory Facility/Infrastructure Engineer at the NH-801-3 level, receiving an annual salary of $108,207 (basic pay of $93,791 with locality adjustment of $14,416). The record shows he accepted an offer from the Department of the Air Force (AF) for an overseas tour to Riyadh, Saudi Arabia, as a General Engineer (Project Manager), GS-801-13, effective July 8, 2018. As part of his three- to five-year overseas tour, the claimant signed a Return Rights Agreement, dated April 18, 2018, stating in part:
I understand that in exercising my return rights, I shall be placed in the position which I held immediately before my assignment overseas, if such position exists. If such position does not exist, I shall be placed in a position of equal grade and in the same geographic area in accordance with the procedures specified in 10 [United States Code (U.S.C.)] 1586, section c.
Shortly after departing for his overseas tour, the claimant returned to the United States due to a family emergency. The Standard Form (SF) 50 shows the AF processed a transfer action, effective August 5, 2018, from his position in Saudi Arabia to a Supervisory Facility/Infrastructure Engineer position in Eglin Air Force Base, Florida, at the NH-801-3 level, receiving an annual salary of $110,595 (basic pay of $95,861 with locality adjustment of $14,734). In the claimant’s absence, AFMC management officials detailed another employee in the same organization to perform the duties of the Supervisory Facility/Infrastructure Engineer position. The detail continued after the claimant’s return from his overseas tour. Although he occupied and received the pay of a position at the NH-801-3 level, the claimant describes the work he performed upon his return as “not at the Supervisory GS-13 level and was minimally at the non-supervisory GS-12 level.” The claimant submitted organizational charts and activity reports identifying the detailed employee in the Supervisory Facility/Infrastructure Engineer position he previously occupied.
The record shows the claimant was a name request on a certificate for a Supervisory General Engineer, GS-801-12, position with the Naval Facilities Engineering Command. When Navy extended the non-competitive employment offer to him on October 15, 2018, with pay set at the GS-12, step 10, rate (basic pay of $82,680 with locality adjustment of $12,708), the claimant requested that Navy set his rate of pay equivalent to his NH-801-3 position with the AFMC. The claimant states that, because he no longer performed the same duties assigned to him prior to his overseas tour, the AFMC violated the return rights agreement. He further asserts that because his situation was comparable to the agency abolishing his position, the AFMC was required to use the Reduction in Force (RIF) procedures described by part 351 of title 5, Code of Federal Regulations (CFR), for employees faced with separation or downgrading for a reorganization, lack of work, insufficient personnel ceiling, etc. He asserts he should be entitled to the pay retention benefit provided to employees placed in a lower-graded position through RIF procedures. The Navy declined his pay retention request. The claimant subsequently accepted the final job offer extended on December 14, 2018, and he was assigned to the position effective January 22, 2019.
The Navy explains its pay setting decision in a March 28, 2019, memorandum to the claimant:
[The Navy] does not afford Pay retention to voluntary employee [initiated] moves. Within your correspondence with the Navy [human resources office], you claimed to be in a [RIF] status and therefore be entitled to Pay Retention, however, your losing organization, [AF] at Eglin AFB, FL, 96 Civilian Engineering Group, indicated that your position was not in a RIF proceeding nor under a re-engineering procedure. [The AF] was unable to provide documentation to establish your RIF status.
The claimant disagrees with the Navy’s decision, stating in his claim request to OPM:
I involuntarily sought other employment and I accepted a change-to-lower grade position with the Navy as the receiving DoD Agency because my prior DoD Agency employer, the [AF], egregiously performed actions including re-organization, violation of 10 USC 1566 and I was effectively constructively removed/terminated. The [AF] performed a fraudulent circle of mis-information; I was not placed back into a position to which I had return rights, I was not offered a suitable alternative position, I could not be shown on ANY Org chart, and I sought other local area base employment as a result, on my own referencing the return-rights agreement regulations on local area base placement.
Subpart C of part 536 of 5 CFR implements the pay retention provisions of 5 U.S.C. 5363. Under law and regulations, pay retention benefits are mandatory for an employee whose rate of basic pay would otherwise be reduced as a result of (1) the expiration of the two-year period of grade retention, (2) a RIF or reclassification that places an employee in a lower-graded position when the employee does not meet the eligibility requirements for grade retention, (3) a management action that places an employee into a non-special rate position or into a lower-paid special rate position from a special rate position, (4) a management action that places an employee under a different pay schedule, (5) a management action that places an employee in a formal employee development program generally utilized Governmentwide, or (6) a reduction or elimination of scheduled rates, special schedules, or special rate schedules. Because the claimant does not meet any of the 5 CFR 536.301(a) conditions cited above, he is not entitled to mandatory pay retention upon transfer to his lower-graded position with Navy. Although he asserts he is entitled to pay retention based on a RIF, he did not submit a RIF notice or other documentation to support his statements. Instead, the record shows AF officials confirmed that no RIF actions were taken on his position. The record also includes SF 50s showing the claimant occupied an NH-801-3 position with an annual salary of $108,207 prior to his overseas tour on or around July 8, 2018, and an NH-801-3 position with an annual salary of $110,595 upon return from his overseas tour on or around August 5, 2018. Regardless of his statements attesting to a RIF, it is the right of the employing agency (in this case, the AF) to decide what positions are abolished, whether a RIF is necessary, and when the RIF will take place. OPM has no statutory or regulatory authority to make RIF-related determinations. Therefore, the claimant’s circumstances do not qualify for pay retention authorized by 5 CFR 536.301.
Although the claimant attempts to characterize his transfer from the AFMC to Navy as “involuntary,” this move must be considered voluntary as there is no evidence that any adverse action, by either AFMC or Navy, would have followed as a direct result of his declining the GS-12 employment offer. The implementing regulations under 5 CFR 536.102(b)(1) expressly provide that pay retention does not apply to an employee who is reduced in grade or pay at his own request.
In its administrative report to OPM, the Navy explains that agency pay setting policies allow applying an employee’s highest previous rate (HPR) in situations like the claimant’s. The agency specifically references Section i.(2) of Naval Facility Command Instruction 12531.1, dated January 21, 2011, which instructs, “[u]sing the former pay schedule, identify the lowest step in the grade at which the former salary is equal to or greater than the employee’s HPR. If the employee’s HPR is greater than the step 10, identify the step 10 rate.” The claimant, although he disagrees with the Navy’s denial of his pay retention request, does not challenge the grade and step established by the agency based on the HPR from his prior AFMC position. We reviewed the Navy’s decision to apply his HPR to set his pay at GS-12, step 10, and we concur.
Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant’s right to payment. OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the Government agency involved in the claim. See 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Where the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982. The claimant has not provided any basis on which his claim for pay retention may be granted. The claim is accordingly denied for the reasons previously stated in this decision.
The claimant also states the AF “criminally violated 10 USC 1566 by not returning [him] to [his] return-rights position post an overseas tour, and the [AF’s] actions constituted a constructive removal.” The claims jurisdiction authority of OPM under 31 U.S.C. 3702(a)(2) is limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining whether monies are owed for the stated claim. Therefore, the claimant’s allegations regarding criminal violations and removal actions are not subject to review under OPM’s claims jurisdiction authority of 31 U.S.C. 3702(a)(2) and will not be addressed further.
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.