Office of the General Counsel

Date: January 21, 1998
Matter of: [xxx]
File Number: s9601459

Dear [xxx]:

This replies to your request for relief under the Meritorious Claims Act (MCA), 31 U.S.C.  3702(d), for the individuals named below. In each case, the individual was separated from the Federal service through a reduction-in-force incident to the closure of the [agency] in [city,state], which is in the [city] area. Your office extended employment offers to these individuals stating that they would receive retained pay, which means essentially that they would receive the same salary at their new position at [xxx] that they had been receiving at [xxx].

However, after the employees reported for duty at [xxx], you learned that they had breaks in their Federal service of varying lengths, which made them ineligible for retained pay. 5 U.S.C. 5363(c)(1). Accordingly, you corrected the employees' pay, resulting in reductions of pay ranging from over three dollars an hour to over four dollars an hour. Because there is no legal authority to pay these employees the retained pay they were offered, you have requested that we recommend their cases to the Congress for private relief legislation pursuant to OPM's authority under the MCA.

You state that each of these individuals has suffered significant financial losses as a result in this loss of pay, in addition to the substantial expenses they incurred to relocate to the [city] area to accept your offers. Your request, though, is only that these individuals be authorized to receive the retained pay they were promised, and does not include any claims for their relocation expenses. You state that you have implemented action to avoid future recurrences. Here is a brief summary of each employee's circumstances:

[xxx] was involuntarily separated from his position as a Mechanic on January 13, 1995 and hired at [xxx] on July 9, 1995, a period of five months and 26 days. His wage at his former position was $19.30 an hour. His wage after the corrective action was $15.94 an hour, a difference of $3.36 an hour.

[xxx] was involuntarily separated from his position as a Mechanic on January 13, 1995 and hired at [xxx] effective February 4, 1996, a period of one year and 22 days. His wage at his former position was $19.30 per hour. His wage after the corrective action was $16.34, a difference of $2.96 an hour.

[xxx] was involuntarily separated from his position as a Pneudraulics Systems Worker on January 13, 1995 and hired at [xxx] effective May 28, 1995, a period of four months and 16 days. His wage at his former position was $19.30 an hour. His wage after the corrective action was $14.84, a difference of $4.26 an hour.

[xxx] was separated from his position as an Aircraft Engine Repairer on January 13, 1995 and hired at [xxx] effective October 15, 1995, a period of nine months and three days. His wage at his former position was $17.69 an hour. His wage after the corrective action was $14.84, a difference of $2.85 an hour.

The Meritorious Claims Act, 31 U.S.C. 3702(d) is an extraordinary remedy by which we may refer a claim to Congress with a request for enactment of special legislation to authorize payment only if the claim presents such substantial legal or equitable elements as, in our opinion, to be deserving of consideration by Congress. Before Congress assigned this authority to the OPM, the Comptroller General of the United States, as head of the General Accounting Office (GAO) exercised this authority. In case similar to the instant requests, which involved a claim is based on an erroneous authorization related to a transfer, the Comptroller General required a showing that the erroneous authorization was the "controlling factor" in the employee's decision to relocate and that the employee incurred substantial expenses incident to the move "solely or substantially" because of the erroneous authorization. See B-250892, March 31, 1993 and cases cited therein. In that case, an agency erroneously authorized payment for annual leave, a bonus and severance pay to an employee whose position had been abolished, but who was able to find another position and transfer without a break in service. Because the employee had not been involuntarily separated, he was not entitled to any of the payments. The employee insisted that the promised payments were a contributing factor in the employee's decision to accept the transfer. However, the GAO concluded that, because the employee's job had been abolished, it was in the employee's interest to accept the transfer regardless of whether he received the payments.

Similarly, in each of the requests for relief here, the individuals involved were unemployed for extended periods, over a year in one case. Thus, it was in the employees' interest to accept the positions at [xxx], regardless of whether they were eligible for retained pay. While we recognize the extreme hardship these employees have encountered, the proximate cause of these hardships appears to be the involuntary separation, rather than their employment at [xxx] at reduced hourly wages.

Accordingly, we do not consider these requests as appropriate for us to submit to the Congress under 31 U.S.C. 3702(d).

Very truly yours,

Paul Britner
Senior Attorney