Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Federal Bureau of Prisons
U.S. Department of Justice
Chicago, Illinois
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/17/2022
Date
The claimant is a Federal civilian employee of the Reentry Services Division, Federal Bureau of Prisons (BOP), U.S. Department of Justice, in Chicago, Illinois. She requests the U.S. Office of Personnel Management (OPM) adjust her salary and grant back pay, which she believes is owed her for the years she has been receiving only 50 percent of annual adjustments while on pay retention. We received the claim request on February 8, 2021, additional information from the claimant on November 24, 2021, and the agency administrative report (AAR) on January 14, 2022. For the reasons discussed herein, the claim is denied.
On May 9, 2010, due to a management directed action, the claimant was reassigned from the position of Associate Warden, GS-0006-14, step 10, to a lower graded Residential Reentry Manager, GS-0006-12, step 00, position with pay retention. Thereafter, as an employee on pay retention, she was only eligible for fifty percent (50%) of annual adjustments. In approximately 2019 she became aware that her pay was affected. She asserts that management did not advise her how her pay would be impacted by the management directed reassignment. She states, in relevant part:
…I was never advised how…[being placed on pay retention] would affect my pay status going forward…[and did not know]…it would be detrimental to my ability to receive pay increases at the 100% of the increase…I was not given the facts and this omission by the agency has cost me a significant amount of pay and will negatively affect my retirement pay as well…I need to be made whole and have these pay raises restored…
The agency contends that it thoroughly reviewed and analyzed the claimant’s assertions and that it processed and set the claimant’s rate of pay correctly in accordance with federal regulations.
Under section 5363(a)(3) of title 5, United States Code (U.S.C.), pay retention is authorized for employees who otherwise would be subject to pay reduction under circumstances prescribed by OPM. Pursuant to 5 U.S.C. 5363(b)(2)(B), a rate to which an employee receiving pay retention is entitled shall be increased at the time of any increase in the maximum rate of basic pay payable for the grade of the employee’s position by 50 percent of the dollar amount of each such increase.
The controlling regulations for pay retention are found in part 536 of title 5 Code of Federal Regulations (CFR). Pay retention is either mandatory as described in 5 CFR 536.301 or optional under 5 CFR 536.302 when an employee’s payable rate of basic pay otherwise would be reduced because of a management action, as occurred in the claimant’s case. 5 CFR 536.305 provides rules for adjusting an employee’s retained rate when a pay schedule is adjusted. It states, in relevant part:
(a)(1) Except as otherwise provided in this section, when the maximum rate of the highest applicable rate range for an employee's position of record is increased while the employee is receiving a retained rate, the employee is entitled to 50 percent of the amount of the increase in that maximum rate, subject to the maximum rate limitation in § 536.306. This 50-percent adjustment rule applies only when the maximum rate increases are attributable to the adjustment of the employee's existing pay schedule or the establishment of a new pay schedule that covers the employee's existing position of record.
Relying on the explicit provisions prescribed by 5 U.S.C. 5363(b)(2)(B) and 5 CFR 536.305(a)(1), the claimant’s annual increases must be limited to one-half of the amount of each increase in the maximum rate of basic pay payable (i.e., 50% of each comparability increase for her current grade GS-12, step 00, position until her entitlement to pay retention ceases). The statute itself prescribes the formula for determining pay increases for employees with pay retention rights. Therefore, we find the agency correctly calculated the claimant’s entitlement to pay increases based on one-half on the increase for the GS-12, step 10, grade level. This exact issue was presented and settled in an earlier decision by the Comptroller General of the United States. B-203292, January 8, 1982.
With respect to the claimant’s statement that she was not provided verbal or written notification that her salary would not include full annual adjustment rates while on pay retention, we disagree. As the agency points out, the claimant was notified telephonically and in writing. She was notified telephonically of her change of position on April 30, 2010, and in writing on her Change to Lower Grade Standard Form (SF) 50, Notification of Personnel Action, effective May 9, 2010. In the remarks section it states that she is entitled to pay retention, entitled to retained rate, and salary is equal to applicable cap on retained rates- 150% of maximum rate of grade to which assigned or Level IV of the Executive Schedule. In the remarks section of subsequent annual adjustment SF-50s, it states salary includes a retained rate (adjusted by one-half of the dollar amount of the increase in the maximum rate of basic pay payable for the grade of the employee’s current position) and a locality payment (or other geographic adjustment) applicable in this area. The record also includes copies of the notifications. Furthermore, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.
Finally, under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). As previously discussed, the claimant has failed to do so. Since an agency decision made in accordance with established regulations as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision. Accordingly, the claimant is not entitled to have her salary adjusted and consequently her claim for back pay 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.