Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of Defense
Pentagon, Arlington Virginia
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/09/2016
Date
During the period of the claim, the claimant was employed as a Lead Explosives Investigator with the Hazardous Devices Division of the Chemical, Biological, Radiological, Nuclear and Explosives Directorate, Pentagon Force Protection Agency (PFPA), in the Department of Defense (DoD), stationed at the Pentagon, in Washington, DC. He requests that the U.S. Office of Personnel Management (OPM) direct his agency to restore the hazard pay differential (HPD) he previously received under section 5545(d) of title 5, United States Code (U.S.C.). We accepted the claim on October 13, 2015, received the agency administrative report (AAR) on November 24, 2015, and the claimant’s response to the AAR on December 22, 2015. For the reasons discussed herein, the claim is denied.
On September 10, 2014, the DoD Inspector General received an anonymous complaint that the Hazardous Devices Division "bomb technicians," including the claimant, were erroneously receiving HPD. Shortly thereafter, PFPA’s servicing human resources office, Washington Headquarters Services/Human Resources Directorate (WHS/HRD), conducted a review of HPD payments made to bomb technicians to determine if these payments were appropriately granted. Upon review, WHS/HRD determined that these employees were not eligible for HPD, stating “hazard pay differential may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his position.” Consequently, the agency terminated the claimant’s receipt of HPD, effective January 23, 2015. As a result of receiving the erroneously authorized HPD, the claimant incurred a debt with the Defense Finance and Accounting Service (DFAS) in the amount of $136,122.12.
The claimant contends termination of HPD was improper. He asserts that the original vacancy announcement, firm offer letter, and subsequent position descriptions (PD) for his position all specified that a 25 percent HPD supplement would be provided. He further states that “[w]ithout offering the hazard pay differential as part of the overall compensation package, I would not have left my existing position with the U.S. Capitol Police…” The claimant believes that the agency’s actions were “arbitrary and capricious” and requests their decision be set aside under OPM reviewing authority. In support of his claim, the claimant submitted a voluminous amount of material, including congressional committee reports addressing HPD, a document titled “timeline and legislative background information” concerning HPD, a DFAS debt letter, and Executive Order 11157, which, among other things, concerns prescribing regulations relating to incentive pay for hazardous duty. In our analysis of the claim, we considered all information relevant to the claimant’s receipt of HPD.
The statutory authority for the payment of HPD is found at 5 U.S.C. 5545 which provides:
(d) The Office [of Personnel Management] shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard, and for any hardship or hazard related to asbestos, such differentials shall be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970. Under such regulations as the Office may prescribe, and for such minimum periods as it determines appropriate, an employee to whom chapter 51 and subchapter III of chapter 53 of this title applies is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. However, the pay differential—
(1) does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as the Office may by regulation prescribe; and
(2) may not exceed an amount equal to 25 percent of the rate of basic pay applicable to the employee.
The implementing regulations for this provision, found at 5 CFR 550.904, provide in pertinent part:
(a) An agency shall pay the hazard pay differential listed in appendix A of this subpart to an employee who is assigned to and performs any duty specified in appendix A of this subpart. However, hazard pay differential may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether the hazardous duty or physical hardship is grade controlling, unless payment of a differential has been approved under paragraph (b) of this section.
(b) The head of an agency may approve payment of a hazard pay differential when—
(1) The actual circumstances of the specific hazard or physical hardship have changed from that taken into account and described in the position description; and
(2) Using the knowledge, skills, and abilities that are described in the position description, the employee cannot control the hazard or physical hardship; thus, the risk is not reduced to a less than significant level.
(c) For the purpose of this section, the phrase “has been taken into account in the classification of his or her position” means that the duty constitutes an element considered in establishing the grade of the position – i.e., the knowledge, skills, and abilities required to perform that duty are considered in the classification of the position.
In its report to OPM, the agency maintains that HPD should not be reinstated to the claimant as the hazardous duties the claimant performs were taken into account in the classification of his position.
5 CFR 550.904(a) makes clear that, in most cases, HPD is prohibited when the hazardous duty has been taken into account in the classification of the employee’s position. A hazardous duty is taken into account in the classification of a position when the duty is a part of the knowledge, skills, and abilities required of the incumbent of the position. 5 CFR 550.904(c).
The record reveals that hazards were recognized in the classification of the claimant’s position under the National Security Personnel System (NSPS)[1] and, subsequently, under the General Schedule in factor 1, knowledge required by the position, factor 8, physical demands, and factor 9, work environment. For example, in the evaluation statement for PD #K405A, which the claimant occupied during the period of the claim until May 31, 2015, under factor 1, it states: “The employee will require mastery level of knowledge and skills in laws and regulations in order to serve as a bomb technician and provide expert technical advice and guidance. The employee will also require mastery level of knowledge and skills to counter the constantly shifting terrorist tactics. In addition, the employee will also require knowledge pertaining to identification, design, construction, function, and effects of all types of explosives, incendiary materials, and destructive incendiary devices, as they relate to criminal investigations and violations.” Under factor 8, PD #K405A states: “Inherent to the position is the routine use and disposal of explosives, construction and disposal of destructive explosive devices and participating in rendering safe destructive explosive devices, and exposure to potentially toxic fumes and chemicals, weapons, pyrotechnic materials, explosives, etc.” Finally, hazards were recognized under factor 9 which states: “Work settings include explosion and fire scenes, unsecure crime scenes, remote disposal sites, laboratories, offices, court rooms, etc.” Factor 1 of PD#M783A, to which the claimant was assigned effective May 31, 2015, states: “The incumbent must have mastery level knowledge and experience in supervising detection, identification, field evaluation, render safe, recovery and disposal activities, as well as training subordinate EOD/Hazardous Device Technicians….The incumbent must have expertise and experience in the management of emergency response operations within a unified command structure.” Factors 8 states: “physical exertion is endured…during the removal, rendering safe and/or removal of suspected IED, transportation and destruction of explosives, incendiary devices, chemicals, and other hazardous materials….” Factor 9 tracks the language in PD#K405A.
The claimant does not refute the agency’s assertion that the hazardous duties he performs were taken into account in the classification of his position.
Since hazardous duties performed by the claimant were considered in the classification of his position, the claimant does not meet 5 CFR 550.904(a) and, therefore, does not qualify for HPD under that section.
In the alternative, 5 CFR 550.904(b) provides that “[t]he head of an agency may approve payment of a hazard pay differential” (italics added) even though the hazardous duty was taken into account in the classification of a position if the two described conditions are met. However, the word “may” in the regulation denotes a permissive term. The plain language in the regulation makes clear that the decision to approve payment of HPD under this section is delegated to, and at the discretion of, the employing agency. Consequently, OPM has no authority to grant HPD under the provisions of 5 CFR 550.904(b) and the merits of the case in relation to this section will not be addressed.[2]
The claimant’s assertion that he should receive hazard pay differential because the vacancy announcement, offer letter, and PDs specified that a 25% hazard pay differential would be provided fails for two reasons. First, a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, the vacancy announcement, offer letter, and PDs stating that the claimant would receive HPD do not confer eligibility not otherwise permitted by statute or regulation. Further, the vacancy announcement and offer letter do not function as binding contracts, as the claimant appears to believe. It is presumed that “absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985); Schism v. United States, 316 F.3d 1259, 1274-75 (Fed. Cir. 2002) (en banc) (“Federal employees . . . serve by appointment, not contract . . . .”). Consequently, if an individual’s “employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” Hamlet v. United States, 873 F.2d 1414, 1417 n.5 (Fed. Cir. 1989).
Lastly, 5 CFR 550.905(a) provides:
When an employee performs duty for which a hazard pay differential is authorized, the agency must pay the hazard pay differential for the hours in a pay status on the day (a calendar day or a 24-hour period, when designated by the agency) on which the duty is performed, except as provided in paragraph (b) of this section. Hours in a pay status for work performed during a continuous period extending over 2 days must be considered to have been performed on the day on which the work began, and the allowable differential must be charged to that day. (Italics added.)
The plain language of 5 CFR 550.905(a) authorizes HPD only for those hours in a pay status during a day on which the employee is actually performing the hazardous duty. Equally relevant, 5 U.S.C. 5545(d), as cited previously, specifies that HPD may be granted to an employee “for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position.” Therefore, neither the statute nor regulation allow for an annual 25 percent salary supplement to include HPD for all hours worked unless a hazardous condition not usually involved in performing the duties of the position is present during all of those hours (i.e., HPD is only payable for hours in a pay status on the day during which the employee performs duties for which HPD is authorized). Both the statute and regulation specify that, if the criteria are met, an employee is eligible for HPD only for the time the employee is exposed to the hazardous condition. HPD is not intended as an annual supplement to an employee’s salary, as appears to have been the agency’s prior practice.
Based on the record before us, the claimant has provided no information or documentation on the hazardous duties he actually performs or the frequency with which he encounters the hazardous conditions on which the HPD is based. Therefore, even assuming, arguendo, that claimant was qualified to receive HPD, we have no basis to determine what amount would be payable.
With respect to the basis of claim settlements, the burden is upon the claimant to establish the liability of the United States, and the claimant’s right to payment. The settlement of claims is based upon the written record only, which will include the submissions by the claimant and the agency. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105. The claimant has failed to meet this burden and, thus, the claim is denied.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.