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OPM Contact: Murray M. Meeker
On April 15, 1998, the General Accounting Office transferred a
request for an advance decision that it had received from the
[xxx].(1) [xxx] has asked whether
it may make payments in settlement of a claim from an employee of
the [xxx] based on the failure of [xxx] to offer the employee the
opportunity to contribute to a Thrift Savings Plan account with
concurrent agency contributions, and later to timely offer the
employee the opportunity to participate in the [xxx] faculty
retirement plan, administered by the [agency], with concurrent
The [xxx] which administers the [xxx] has advised that payment
by the agency should be limited to an amount equal to the lost
Agency Matching Contributions and earnings on these contributions
as authorized under 5 U.S.C. 8477(e)(3)(C)(i) and 5 C.F.R.
1605.6(a)(4). In accordance with this guidance from the
[xxx], we have determined that for the period from January 1, 1987
to December 15, 1990, when the employee became eligible to
participate in the [xxx] faculty retirement plan, the agency is
authorized to make payment to the employee for the lost Agency
Matching Contributions and for the earnings that these
contributions would have accrued during this period, but that the
agency is not authorized to make payment for amounts that the
employee alleges that he would have contributed or for earnings
that the employee's contributions would have accrued. See 5 U.S.C.
8432a(a)(2)(A) and 5 C.F.R. 1606.5(d).
As concerns the unmade contributions to the faculty retirement
plan, Congress has authorized the [agency] to provide retirement
benefits for [xxx] civilian faculty. 10 U.S.C. 2113(f)(1). In
accordance with this general authority, we concur with the agency
that it has authority to pay the agency contribution to the faculty
retirement plan, i.e., 10% of the employee's basic pay for the
period from December 15, 1990, to the date in 1993 when the
employee became a member of the faculty retirement plan.(2)
However, the agency may not reimburse the employee for lost
earnings,(3) or for any additional
tax liability, or for the employee contributions to the faculty
retirement plan. The amounts that would have been employee
contributions have already been paid to the employee and duplicate
payment would constitute a windfall for the employee for which
there is no legal authority. Indeed, such payment is barred by
statute. 5 U.S.C. 5536. See Canal Zone
Government, B-131587, March 24, 1978; and Secret Service
Agents, B-202104, July 2, 1981.
This settlement is final. No further administrative review is
available within OPM. Nothing in this settlement limits the
employee's right to bring an action in an appropriate United States
1The authority to issue
advance decisions to agencies concerning matters involving
compensation and leave has been transferred to the Office of
Personnel Management. See 31 U.S.C. 3529(b)(2)(B), as amended by
Pub. L. No. 104-316, Title II, 204, and the "Determination
with Respect to Transfer of Functions Pursuant to Public Law
104-316" issued by the Director of the Office of Management and
Budget on December 17, 1996.
2It has been noted that
under [xxx] Instruction 1418, Oct. 29, 1993, the [xxx] Civilian
Faculty Benefits Plan provides that agency contributions are
contingent on employee contributions. It is assumed that inasmuch
as the agency is authorized to establish these requirements, the
agency is similarly authorized under the circumstances in this case
to waive or otherwise except the claimant from this contingency
3Payment of lost earnings
would contravene the long-standing rule against the payment of
interest. See 68 Comp. Gen. 220 (1989).