Criminal Investigator's Retirement Annuity Should Not Include Availability Pay Because Her Last Years of Service Were Part-Time, MSPB Rules
A criminal investigator's retirement annuity should not be calculated including availability pay because she worked part-time during her last years of federal service, making her ineligible for such pay, the U.S Merit Systems Protection Board ("the Board") ruled last month.
In this case, the appellant served as a criminal investigator from July 25, 1983, until her retirement under FERS effective December 31, 2008. The appellant's criminal investigator positions allowed her to receive "availability pay" under 5 U.S.C. § 5545a, until February 25, 2001, when she began working part-time for the remainder of her federal service. Availability pay is a form of premium pay equal to 25 percent of the rate of basic pay for the position. As a part-time employee, she could not satisfy the legal requirements for receiving availability pay during that period of her service.
Following an OPM initial decision and the appellant's reconsideration request, OPM explained that it calculated the appellant's FERS retirement annuity in accordance with the requirements under 5 U.S.C. §§ 8401, 8412, and 8415, using the appellant's last 3 years of service to derive the average pay portion of the annuity calculation. OPM did not include availability pay in the determination of the appellant's average pay because she did not receive availability pay for her part-time work during her last 3 years of service. The appellant appealed OPM's decision to the Board, arguing that when determining her average pay, OPM should have included availability pay in the basic pay she should have been deemed to have earned during her last 3 years of part-time service.
In a recent decision, however, the Board concluded that OPM properly excluded availability pay from the appellant's basic pay in her last 3 years of service in determining the average pay for the appellant's retirement annuity calculation. The Board explained that as a FERS employee whose career included part-time service, the appellant's retirement annuity is calculated pursuant to 5 U.S.C. § 8415(f), which provides, in pertinent part, that the annuity calculation is a two-step process. The first step is to determine the average pay of an employee as described under § 8415(f)(1)(A), and the second step is to calculate the annuity by prorating the annuity to reflect the employee's part-time service as described under § 8415(f)(1)(B).
The Board went on to say that availability pay is not automatically part of the "annual rate of basic pay that would be payable for full-time service in the position" under § 8415(f)(1)(A). The purpose of availability pay "is to provide premium pay to criminal investigators to ensure the availability of criminal investigators for unscheduled duty in excess of a 40 hour week based on the needs of the employing agency." Moreover, the statute requires an annual certification to the head of the agency by the employee and a supervising officer that the employee has - and will - satisfy the availability pay eligibility requirements.
Here, that the appellant admitted that she could not receive eligibility pay during her last three years of part-time service. Thus, the Board stated that "basic pay" only includes availability pay that was actually received by a criminal investigator in a given year. Accordingly, OPM correctly computed the appellant's retirement annuity when it did not include availability pay in that calculation, the Board concluded.
The case is Denney v. OPM, 2012 MSPB 9, January 27, 2012.
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