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Office of the General Counsel

Date: November 16, 1998
Matter of: [xxx]
File Number: S001584

OPM Contact: Murray M. Meeker

The claimant is an employee at the [xxx], in [xxx]. For the reasons discussed herein, the claimant's request for back pay is denied.

In 1993, the claimant retired from his position with the [xxx]. As reported by the claimant's attorney, after the claimant's retirement, he was approached by both the [xxx] Commander and the Deputy Commander, who assured him that if he were to return to Government service, his salary would not be reduced by the amount of his civil service retirement benefits. The claimant returned to civilian employment with the [agency] in 1994.

Reemployed annuitants generally must have the amount of their annuities deducted from their pay. 5 U.S.C. 8344(a). In certain limited circumstances, and upon the request of the head of an agency, the Director of the Office of Personnel Management may waive this requirement. 5 U.S.C. 8344(i).(1)

It is undisputed that two senior agency officials assured the claimant that this waiver provision would be invoked on his behalf and that the claimant relied on this advice when he accepted his current position. The record also is undisputed that these officials did not have the authority to make this offer and that, had proper procedures been followed, the agency would not have requested a waiver in this case. Thus, this question presented is whether the claimant's reliance on the erroneous advice of the agency officials entitles him to the waiver the officials promised him.

It is well-settled that the erroneous advice of agency officials may not form the basis for the payment of a claim otherwise barred by law. OPM v. Richmond, 496 U.S. 414 (1990). Accordingly, the claim is denied.

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 Court.

1 These provisions relate to employees in the Civil Service Retirement System, which happens to be the case here. The comparable provisions for Federal Employees Retirement System employees are found at 5 U.S.C. 8468, paragraphs (a) and (f).

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