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Office of the General Counsel

Date: July 28, 1998
Matter of: [xxx]
File Number: S001798

OPM Contact: Murray M. Meeker

The [agency] has requested an opinion concerning its authority to grant retroactive promotions and back pay to an [agency] employee who, because of erroneous information provided by an [agency] official, was not promoted on an earlier date.(1) The request is denied.

While the [agency's] request letter states that there are no Comptroller General decisions that are completely on point, these decisions do clearly establish that retroactive pay actions may only be granted where the erroneous action was contrary to statute, regulation, or a nondiscretionary agency policy. See 63 Comp. Gen. 417 (1984) and the decisions cited therein.

The [agency's] request letter acknowledges that the delay that resulted from the erroneous information occurred prior to the approval of the employee's promotion by an authorized agency official. See Barbara W. Scheaffer, B-200717, January 28, 1981. It is not enough that an action would have been taken but for an administrative error or that an action was inequitable. See 58 Comp. Gen. 59 (1978) and Janice Levy, B-190408, December 21, 1977. Additionally, it is not sufficient for the purpose of determining whether there is authority to grant a retroactive promotion or back pay that an agency official misinterpreted the applicable law. See B-168715, January 22, 1970.

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. This decision is being issued pursuant to our authority under 31 U.S.C. 3529 to issue advance decisions to agencies on matters involving compensation and leave.

Control Panel