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Office of the General Counsel

Date: October 1, 1999
Matter of: [xxx]
File Number: S003601

OPM Contact: Murray M. Meeker

In 1984, the claimant, a civilian employee with the [agency], was erroneously designated as being covered by the Civil Service Retirement System (CSRS). The claimant should have been designated as being covered by the Federal Employees' Retirement System (FERS). As a consequence of this error, the portion of the claimant's retirement deductions that should have been remitted to the Social Security Administration in payment of OASDI (old age, survivors and disability insurance) taxes, was credited to the Civil Service Retirement and Disability Fund. See King v. Merit Systems Protection Board, 105 F.3d 635 (Fed. Cir. 1997) and Garcia v. United States, 996 F.Supp. 39 (D.D.C. 1998). (1)

The employee requests a back pay award to compensate him for benefits that he would have received had he been correctly placed in FERS. More specifically, the employee claims back pay to compensate him for federal income taxes which he would not have paid if he had been placed in FERS and deferred a portion of his salary by contributing to the Thrift Savings Plan (TSP). The claimant also asserts entitlement to back pay for lost earnings on employee TSP contributions, reimbursement for service credit deposit increases, payment for unwarranted retirement benefit losses, legal costs, and family hardships. For the reasons discussed herein, a portion of the claim is dismissed for lack of jurisdiction.

The agency has advised the Office of Personnel Management (OPM) that the claimant is a member of a bargaining unit represented by Local [xxx] of the American Federation of Government Employees (AFGE). OPM cannot take jurisdiction over a claim that is or was subject to a negotiated grievance procedure under a collective bargaining agreement unless that matter is or was specifically excluded from the agreement's grievance procedure. The courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc) (In enacting 5 U.S.C.  7121(a), Congress intended that the negotiated grievance procedure was to be the exclusive remedy for matters not excluded from the grievance process), cert. denied, 498 U.S. 811 (1990). Accord, Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988) and Cecil E. Riggs et al., B-222962.3, April 23, 1992.

With regard to the portion of the employee's claim that concerns retirement matters that are specifically excluded from the agreement (see Negotiated Agreement between U.S. Army Engineer District, [xxx]and AFGE Local [xxx], Art. 15, sect. 3a, Jan. 15, 1997), we affirm the agency's actions.(2) The agency did not act unlawfully by reallocating the retirement deductions to the proper accounts in January 1996. See King v. Merit Systems Protection Board, supra, at 636-637; Garcia v. United States, supra, at 42; Alfred H. Varga, B-260909, December 17, 1996; 68 Comp. Gen. 86 (1988); and Patricia J. Engevik, B-202201 (Dec. 23, 1981).

In addition, while the agency was authorized to pay an amount equal to the lost agency matching TSP contributions and the earnings on these contributions, the agency was not authorized to pay lost earnings on any employee contributions which might have been made, but for the designation error. 5 U.S.C. 8432a; 5 C.F.R.  1605.4; and Garcia v. United States, supra, at 42.

In summary, OPM lacks jurisdiction to review those portions of the employee's claim which are not excluded from the negotiated grievance procedure applicable to the employee, and OPM denies that portion of the employee's claim that is excluded from the negotiated grievance procedure.

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. In both King, supra, and Garcia, supra, it is reported that federal employing agencies deduct 7% of each employee's pay for the retirement contribution or deduction. In 1997, Congress increased this percentage for both CSRS and FERS deductions. See 5 U.S.C. 8334(c) and 8422(a)(3), as amended by Pub. L. No. 105-33, 7001(a)(3) and (b)(1).

2. OPM does not review agency waiver determinations. See 5 U.S.C. 5584(a)(1).

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