Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Pearl Harbor, Hawaii
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/26/2014
Date
The claimant seeks to have his pay restored at the previous retained rate of pay to include all pay accrued as of May 16, 2013. The U.S. Office of Personnel Management (OPM) received the claim on April 3, 2014, and the agency administrative report on May 27, 2014. For the reasons discussed herein, the claim is denied for lack of jurisdiction.
The agency states, and the claimant does not dispute, that the claimant was separated from Federal service effective May 16, 2011, due to a reduction in force by the Commander, U.S. Pacific Fleet (COMPACFLT), Department of the Navy (Navy). The record shows the claimant filed an informal equal employment opportunity (EEO) complaint with COMPACFLT on that same date regarding his separation, and on June 10, 2011, filed an appeal concerning the separation with the Merit Systems Protection Board (MSPB). The claimant entered into a settlement agreement on August 19, 2011, with the Command which states, in relevant part, that the agency agrees:
1. To reinstate the Complainant/Appellant in the federal civil service back to the date of his separation with all of his benefits, back pay and pay retention for two years at the GS 14 [sic] Step 06, $109,691 PA rate. The Complainant/Appellant will be placed in the position of Contractor Workforce Analyst, GS-301-12.
2. A job search will be conducted with “Prior Consideration* [footnote discusses prior consideration]” for GS-343-14 positions which Complainant/Appellant is qualified [for] of all COMPACFLT claimant-wide in Japan, Hawaii and San Diego, CA. The search and “Prior Consideration” will begin the date of execution of this agreement and will expire one year from the date of the execution of the agreement or at the time Complainant/Appellant accepts another position, whichever comes first.
The agreement further states the complainant/appellant agrees, in relevant part:
1. To withdraw his EEO complaint and MSPB Appeal, ATTACHMENT A, with prejudice and to hereby waive, release and forever discharge the Agency, its employees and agents from any claims, complaints, demands, causes of action, and damages arising out of past employment with the Agency, including matters alleged in the present complaint and all related matters.
2. Not to file any new claims, complaints, grievances, proceedings, appeals or law suits in any judicial or administrative forum whatsoever (including complaints to the Navy and DoD [Department of Defense] Inspector General, Office of Special Counsel, or other public officials’ office) against the Agency, its employees or agents, arising out of his employment with the Agency, including the matters alleged in the present complaint and all related matters.
The settlement further states:
If the Complainant believes at any time that the Agency has failed to adhere to the terms of this agreement, for any reason not attributable to his omissions, acts or conduct, the Complainant must follow the procedures set forth in 29 CFR 1614, Subpart E-Remedies and Enforcement (1999), or successor provision, which provide that complainant must notify the Agency’s EEO Director in writing of the alleged noncompliance within 30 days of when the Complainant knew or should have known of the alleged noncompliance, and that the Complainant may request that the terms of this agreement be specifically implemented, or alternatively, that the formal complaint be reinstated for processing from the point processing ceased as a result of this agreement.
Attachment A to the settlement agreement is MSPB’s initial decision regarding docket number SF-0351-11-0646-I-1, August 25, 2011, concerning the claimant’s reduction in force appeal against Navy. The decision states, in relevant part:
On August 22, 2011, the parties submitted a written settlement agreement mutually resolving all disputed issues… I find that the settlement agreement appears lawful and freely reached.
* * * * *
The Board will not retain jurisdiction to enforce the terms of the settlement agreement because the parties did not request that the agreement be entered into the record for purposes of enforcement. Rather, the parties agreed that the appellant may seek to enforce the agreement, if necessary, pursuant to Equal Employment Opportunity Commission (EEOC) enforcement regulations, 29 C.F.R. § 1614, Subpart E.
The record shows the claimant exercised his right under the provisions of 29 CFR 1614 when he sent a May 29, 2013, email to the agency with the subject line: “Notification of Non-Compliance/Misrepresentation in Settlement Agreement.” In his April 17, 2014, memorandum responding to this email, the COMPACFLT Deputy EEO Officer denied the claimant’s request, advised the claimant he could appeal to EEOC, and stated: “If you believe that you are entitled to pay retention beyond the two (2) year period you may initiate an appeal to the Office of Personnel Management (OPM), following the procedures outlined in 5 CFR 536." This statement regarding OPM’s jurisdiction is incorrect. 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.) and part 178 of title 5, CFR. The authority in 31 U.S.C. § 3702(a)(2) is limited to deciding if the governing statutes and regulations have been properly interpreted and applied in determining the pay and/or benefits which an employee may be entitled to or granted. This authority does not extend to reviewing, intervening in the implementation of, or enforcing the terms of a settlement agreement entered into by a claimant and his employing agency which provided pay retention to the claimant and which includes its own enforcement mechanism. Therefore, we must deny the claim for lack of subject-matter jurisdiction.
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.