Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/04/2016
Date
The claimant occupies a Wood Worker Supervisor, WS-4604-7, position in the Air Combat Command, Moody Air Force Base, Department of the Air Force, in Lowndes, Georgia. His position had been upgraded from WS-6 to WS-7 effective April 19, 2015. However, he seeks back pay from December 26, 2004, to April 19, 2015, because he asserts that the position had been misclassified and that he had “been trying to have this corrected and reviewed for almost ten years.” The U.S. Office of Personnel Management (OPM) received the request on June 30, 2015. For the reasons discussed herein, the claim is denied.
OPM settles Federal civilian employee compensation and leave claims under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.), and part 178 of title 5, Code of Federal Regulations (CFR). Section 178.102(a) of 5 CFR indicates that the claimant’s employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication. The claimant is responsible for preserving the claim period by proving the signed, written claim was filed within the applicable statute of limitations. See 5 CFR 178.104. The information provided by the claimant with his request does not show he has filed a signed, written claim with the agency component authorized to issue an agency-level decision or that he has received such a decision. Nevertheless, we are rendering a decision on his claim as it is statutorily barred.
The claimant states that he is “making this request under the authority of CFR Title 5 subpart H,”[1] which are the implementing regulations for 5 U.S.C. § 5596, allowing back pay for “an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction” of an employee’s pay, allowances, or differentials. The claimant asserts that his position should have been reviewed and upgraded when the grades of the subordinate positions were upgraded “back in the 90’s” and “again in Dec. of 2004… for accuracy before it was put out to be filled...”
Even assuming, arguendo, that the claimant’s position would have supported a higher grade at some earlier point in time based on the grades and composition of the subordinate work force supervised, the claimant may not be awarded back pay. Back pay for periods of misclassification is statutorily barred (5 U.S.C. 5596(b)(3)). As stated in United States v. Testan, 424, U.S. 392 (1976): “The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it. United States v. McClean, 95 U.S. 750 (1878); Ganse v. United States, 180 Ct. Cl. 183, 186, 376 F.2d 900, 902 (1967).” See also B-19065, July 7, 1978; B-191360, May 10, 1978; and OPM file numbers 10-0042, November 3, 2010, 11-0030, November 15, 2011, 12-0009, May 31, 2012, and 14-0052, September 24, 2014.
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
[1] The claimant refers to 5 CFR Part 550, Subpart H.