Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Birmingham, Alabama
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/09/2021
Date
The claimant retired from Federal civilian employment on June 30, 2009. He requests the U.S. Office of Personnel Management (OPM) direct his former employer, the U.S. Army Reserve Command (USARC), to provide him with a National Security Personnel System (NSPS) performance payout in the total amount of $4,768, of which $3,018 was due in a base salary increase and $1,750 in a bonus payout. In addition, he asserts that if his base salary is corrected to include the increase, he is entitled to pay retention and thus back pay in connection with his subsequent employment with the Department of Veterans Affairs (VA) from January 4, 2009, to June 30, 2009, and as a reemployed annuitant with the Department of the Army (DA) from November 7, 2011, to November 30, 2012. He also requests correction of his retirement pay resulting from the retroactive salary adjustment. We received his claims on May 14, 2012, and January 12, 2016, and the agency administrative report on September 12, 2019. For reasons discussed herein, the claim is denied.
The claimant’s position, while employed with the USARC, was covered under the NSPS and eligible for a performance-based payout comprised of a salary increase and bonus. On December 18, 2008, he received an Employee Notice of Pay Pool Decisions (Addendum to DD 2906), identifying his payout distribution to include a salary increase of $3,018 and bonus of $1,750 for the pay pool cycle ending on September 30, 2008. Meanwhile, the claimant states that because his organization was undergoing Base Realignment and Closure (BRAC) procedures, he sought out and secured employment with the VA. As a result, the USARC terminated his appointment on January 3, 2009. Upon transferring to the VA on January 4, 2009, he was appointed to a General Schedule position and was no longer covered under NSPS. The record includes Standard Form 50s showing the USARC had processed his performance payout identifying January 4, 2009, as the effective date, but the action was subsequently cancelled on the same day.
In its July 15, 2016, denial of the claimant’s request for the NSPS performance payout, the agency determined the cancellation of his payout was appropriate, stating:
Section 9901.342(g)(7) of 5 Code of Federal Regulation (CFR), does not permit performance-based payments for employees who were no longer covered by NSPS on the effective date of the payout, or who moved out of NSPS on a permanent move after the end of their rating cycle but before the effective date of the payout…Moreover, since the pay increases never actually took effect, there was no decrease in your pay in violation of Section 1113 of [National Defense Authorization Act (NDAA) for Fiscal Year 2010, Public Law 111-84 dated October 28, 2009].
However, the claimant asserts in his May 2012 request to OPM:
I would like to point out that my old agency…processed my termination and appointment on 3 Jan 2009 which was a Saturday and the bonus award and pay increase effective 4 Jan 2009 and cancellation 4 Jan 2009, which was a Sunday and I reported to the [VA] on 5 Jan 2009. Isn’t this a little strange that all of this would be effective on weekend days.
The claimant also asserts that if his base salary is corrected to reflect the increase, he is entitled to pay retention as an NSPS employee in connection with his subsequent employment. To support his assertion, he references the NDAA for Fiscal Year 2010 and OPM’s Fact Sheet: Pay Retention for Former NSPS Employees.
It is well established that retroactive pay actions may only be granted when the erroneous action was contrary to statute, regulation, or a nondiscretionary agency policy. See OPM File Numbers S001798 and 11-0024. We note Department of Defense Instruction (DODI) 1400.25, SC1930.9.4.5., dated August 7, 2007, and in effect during the period of the claim, states in relevant part:
Performance-based payouts shall be effective the first day of the first pay period beginning on or after January 1 of each year.[1] Performance-based payouts made from the pay pool funds shall consist of increases to base salaries, bonuses, or a combination of the two.
In addition, the claimant provided OPM with the November 24, 2008, memorandum issued by the USARC Headquarters, Subject: [NSPS] Performance Appraisal Finalization and Reconsideration Processes for Rating Officials, which states:
…these [performance appraisal] conversations should occur beginning 15 December 2008 but not later than the effective date of the payout (4 January 2009).
Implicit in the claimant’s rationale is that USARC acted arbitrarily in deciding the effective date of his performance payout, and the agency should have processed the action earlier to allow the grant of his payout prior to his termination. Nonetheless, his rationale is contrary to the clear and unambiguous language of the controlling regulations concerning the effective date of NSPS performance payouts. Based on the record, there is no dispute that it was the claimant’s decision to terminate his employment with the USARC and report to the VA on January 5, 2009. In most instances, the appointment effective date for an employee is the first Sunday of the pay period during which the employee first reports for work. See Comptroller General Decision B-158844. In order for the claimant to report to the VA on January 5, 2009, the USARC had to terminate his position with the agency on January 3, 2009, to allow the VA to transfer him to its agency effective January 4, 2009, i.e., the first Sunday of the pay period during which he first reported to duty. Contrary to the claimant’s assertions, although the NSPS rating period ended on September 30, 2008, the payout could only be received by eligible employees on January 4, 2009, as stipulated by DODI 1400.25, SC1930.9.4.5., and the November 24, 2008 memorandum issued by USARC Headquarters.
Also relevant to the claimant’s situation, DODI 1400.25, SC1930.9.4.5. states, “Employees who are no longer covered by NSPS at the time of the payout are not entitled to a performance-based payout.” Therefore, the claimant was neither eligible for nor entitled to an NSPS performance payout since, upon his January 3, 2009, termination from the USARC position, he was no longer covered under the NSPS and was precluded from receiving a performance payout under DODI 1400.25, SC1930.9.4.5. This exact issue was settled in an earlier decision issued by OPM; file number 12-0013.
OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. The burden of proof is on the claimant to establish the liability of the United States. 5 CFR 178.105; Jones and Short, B-205282, June 15, 1982. Where the agency’s 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, as cited in Philip M. Brey, B-261517, December 26, 1995. The claimant has failed to establish that the agency acted in an unlawful manner when it declined to provide him an NSPS performance payout. Therefore, the claim is denied. Given our denial of the claimant’s performance payout request, we will not address his claim for back pay in connection with his subsequent employment and other requests as they are moot.
In his May 2012 request, the claimant specifically requests an exception to policy because his organization at the time was subject to BRAC procedures. OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C. 3702(a)(2) is narrow and limited and does not include the authority to waive agency policy or implementing regulations. Therefore, OPM will not consider the claimant’s request for an exception to policy since it is not within the scope of the claims adjudication function under 31 U.S.C. 3702(a)(2).
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] In 2009, the first day of the first pay period beginning on or after January 1 was January 4.