Washington, D.C

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Pay and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/23/2023

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Date

The claimant is a federal civilian employee of the Geotechnical & Environmental Remediation Section, Engineering, Construction, and Planning Division, Engineering Brigade, U.S. Army Corps of Engineers (COE), U.S. Army Engineering District, in Wilmington, North Carolina. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of his request to have his entrance-on-duty (EOD) date retroactively adjusted to September 17, 2018, as well as adjustments to sick and annual leave reflective of the September 17, 2018, EOD date. He also requests reimbursement for the time he spent developing his claim. We received his claim on August 23, 2022, and the agency administrative report (AAR) on September 21, 2022, and the claimant’s comments to the AAR on December 9, 2022. For the reasons discussed herein, the claim is denied.

On August 29, 2018, the claimant received a firm/final job offer from the agency’s Civilian Personnel Advisory Center (CPAC) for his current position, which he accepted. Agency records show the claimant was originally scheduled to enter-on-duty on September 17, 2018. However, due to a variety of circumstances (e.g., difficulties with remote access to COE computers and hazardous conditions associated with hurricane Florence), the claimant’s EOD date was rescheduled by the agency from September 17, 2018, to September 24, 2018, and then to September 25, 2018. On September 25, 2018, the claimant reported to the Wilmington office, completed his remaining EOD paperwork, was officially sworn in, and began work in his current position.

After his EOD, the claimant submitted a request to the agency’s Civilian Human Resources Agency (CHRA) to retroactively adjust his EOD to September 17, 2018. He also requested administrative leave for hours he believes he was entitled to, and requested the agency recalculate and adjust his annual leave, sick leave, and subsequent step increases based on the originally proposed September 17, 2018, EOD date. On July 20, 2022, the agency issued a memorandum denying all of the claimant’s aforementioned requests. 

In his request to OPM, the claimant asserts his inability to be sworn in on the originally proposed EOD date was not his fault and that he should not be penalized for his inability to do so: He states in part:

…[the claimant] was unable to be sworn in and fill out his remaining paperwork in the District Office due to the office being closed from 13 SEP 2018, through 24 SEP 2018…

…this was due to no fault to [the claimant], and he should not be penalized. Therefore, [the claimant] should not be withheld compensation from 17 SEP 2018 to 24 SEP 2018…

He also requests backpay, step increases, sick and annual leave, and reimbursement for claim development time based on the agency’s original EOD date. He states:

…I am also requesting financial compensation of $5,500 for the time on Administrative Leave from 17 SEP 2018 to 24 SEP 2018 [claim period], back-pay for the step and grade increases being withheld for 6 days over a 4-year period, and reimbursement for development of this appeal. In addition, I am requesting 1 day of sick leave and 1 day of personal leave be added to my leave account…

The agency asserts the claimant is not entitled to receive the requested backpay, step increases, sick and annual leave, and reimbursement for claim development time, because he was not a COE employee until September 25, 2018, when he met the EOD requirements detailed in the Guide to Processing Personnel Actions (GPPA), chapter 3, subchapter 4, paragraphs 4-3a and 4-3c. The agency states in part:

…as a general proposition, one is not entitled to compensation until his appointment has been fully consummated by taking the oath of office…

…[claimant] did not report on 17 September 2018 because the building and offices were closed. The offices remained closed and no one in the building performed work, nor did they in-process [claimant] or administer his oath of office. He took the oath of office on 25 September 2018 when the building opened…

…the wording of the GPPA, paragraph 4-1, requires that appointments to civil service are effective from the date of acceptance and EOD, further defining EOD as completing in-processing and being sworn in. [claimant] was required to take the oath of office before he could be considered appointed as a federal employee…

…taken in totality, based on the complete language of the [GPPA], an oath of office is required for a federal appointment. To interpret it differently would disregard the requirement in paragraph 4-3a for both necessary paperwork and swearing in (id. para 4-3c)...

As additional support for its decision to deny the claimant’s requests, the agency cites the Back Pay Act and a number of Merit System Protection Board decisions, published and unpublished Comptroller General decisions, and a variety of court decisions. However, the aforementioned law and decisions are not relevant to the claimant’s case and will not be discussed in this decision.

Section 250.101, of title 5, Code of Federal Regulations (CFR), “Standards and requirements for agency personnel actions”, states in relevant part:

When taking a personnel action authorized by this chapter, an agency must comply with qualification standards and regulations issued by the [OPM], the instructions OPM has published in the Guide to Processing Personnel Actions (GPPA), and the provisions of any delegation agreement OPM has made with the agency…

Chapter 3, subchapter 4, paragraphs 4-3a and 4-3c of the GPPA, state, in relevant part:

…Entrance on duty is the process by which a person completes the necessary paperwork and is sworn in as an employee… and …as a part of the entry-on-duty process, the employee takes the oath of office…

Under 5 CFR 250.101, Federal agencies are required to comply with EOD-related instructions and requirements specified in the GPPA. GPPA subsections 4-3a and 4-3c, cited above, clearly state that applicants for Federal positions must complete the EOD process (i.e., complete all required paperwork and be “sworn in” or “take the oath of office”) before they can be considered Federal employees.

The record shows the claimant met the EOD requirements of subsections 4-3a and 4-3c of the GPPA on September 25, 2018, when he completed his remaining onboarding paperwork, was sworn in/took the oath of office and began work as a Federal civilian employee. Therefore, the claimant was not eligible to receive employee pay and benefits prior to September 25, 2018, and consequently his claims for backpay, retroactive step increases, and sick and annual leave accrual for the period from September 17, 2018, through September 24, 2018, is denied.

The claimant requests compensation for time spent developing his claim. He also requests that OPM waive the EOD requirements described in subsections 4-3a and 4-3c of the GPPA. He states:

…Although CHRA sites the [OPM] Handbook Paragraph 4-3 a, and 4-3c. “that the EOD is the process by which a person completes the necessary paperwork and is sworn in as an employee”, [claimant] would like to respectfully ask for an exemption to this rule…

OPM adjudicates compensation and leave claims for certain federal employees under authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C. 3702(a)(2) is narrow and limited to determining if compensation or leave is owed the claimant under controlling statutes,regulations, or agency policy. 31 U.S.C. 3702 does not include authority to award compensation for time spent by a claimant developing a pay claim, and/or to waive EOD processing requirements detailed in the GPPA. Thus, OPM does not consider such requests within the context of the claim adjudication function it performs under 31 U.S.C. 3702. Therefore, these requests are also 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.

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