Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Agriculture
Washington, DC
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/16/2016
Date
The claimant is a Federal civilian employee of the U.S. Department of Agriculture (USDA) in Washington, DC. She seeks to challenge her agency’s process for converting her Human Resources Specialist, AP-201-04, position from the Public Health Human Resources System (PHHRS) to the General Schedule (GS) as a Human Resources Specialist, GS-12, Step 00, with retained pay, and have her “salary be retroactively set at a GS/13-5 [sic] effective the date of the conversion.” We received the claim request on April 28, 2015,[1] the agency administrative report (AAR) on July 2, 2015, and the claimant’s comments on the AAR on July 12, 2015. For the reasons discussed herein, the claim is denied.
The record shows the claimant applied and was selected for the aforementioned AP-201-4 position (pay set at $99,729 per annum) from USDA Job Announcement Number HRO-MP-2013-0018, issued August 22, 2013. She was placed in the position by transfer from a GS-201-12, step 7, position ($89,846 per annum). The announcement advertised the position at both the AP-3 and AP-4 levels, with promotion potential to the AP-4 level. As described in the vacancy announcement, the position was covered by the PHHRS Demonstration Project developed and implemented under chapter 47 of title 5, United States Code (U.S.C.). OPM approved both the PHHRS regulation issued in Federal Register, Vol. 74, No. 17, dated January 28, 2009, and the FSIS PHHRS Demonstration Project Policies and Procedures Handbook dated October 12, 2011. PHHRS’ purpose was to test a results-based, competency-linked pay-for-performance system using broad pay bands. On February 23, 2014, the USDA exercised its right to end the temporary PHHRS Demonstration Project, and employees were converted back to the GS.
The claimant seeks to challenge her conversion from PHHRS to GS at the same rate of basic pay ($100,726.00 per annum) from AP-04 to GS-12/00. The claimant asserts that since USDA “created an AP-4 under the PHHRS band which is comparable up to the GS-13/10 pay scale,” she is “requesting the Agency’s subsequent conversion decision be set aside and [her] salary be retroactively set at GS/13-5 effective the date of the conversion and make [her] whole based on the April 2013 job announcement.” Thus, the basic premise of her claim is that the aforementioned announcement functioned in a manner similar to a contract, and that the agency was obligated to place her in a situation upon conversion that would automatically provide for her attaining GS-13, step 10, pay. As stated in her July 23, 2014, initial claim request: “My decision to accept this position was solely based upon the conditions set forth in the August 22, job announcement, the primary factor being salary and salary potential.”
It is presumed that “absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985); accord Schism v. United States, 316 F.3d 1259, 1274-75 (Fed. Cir. 2002) (en banc) (“Federal employees . . . serve by appointment, not contract . . . .”). Consequently, if an individual’s “employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” Hamlet v. United States, 873 F.2d 1414, 1417 n.5 (Fed. Cir. 1989). That she applied, was selected for, and appointed to a PHHRS banded position with salary potential to the GS-13, step 10, does not contractually obligate FSIS to place her in a GS-13 position upon the ending of PHHRS and conversion back to the GS as the claimant appears to assert. Rather, her conversion back to the GS must be accomplished within the published PHHRS regulations and associated requirements of GS law and regulation.
That the salary range of her AP-4 position covered both the GS-12 and GS-13 salary ranges of the GS pay system does not mean that the AP-4 work the claimant performed was classifiable to the GS-13 grade level under the GS position classification system. Rather, as noted in the aforementioned PHHRS Federal Register notice:
In addition, it is felt that the new pay band structure is actually more consistent with the manner in which most positions operate. For example, the main difference between two grades may simply be that supervisory controls are closer and/or guidelines are more defined at the lower grade. . . . Combining two grades into a single pay band, for example, shifts the focus of the employee pay advancement from position classification and merit promotion criteria to performance-based pay criteria, one of the chief goals of the demonstration project.
Thus, salary progression through the AP-4 pay band was intended to be based on employee performance rather than classification criteria; i.e., the difficulty, responsibility, and qualification requirements of the work performed. Therefore, placement in an AP-4 position provided for compensation in the GS-13 salary range for the performance of what would be classified as GS-12 level work in the General Schedule.
The initial step in converting a PHHRS employee to the GS system requires a determination of the appropriate GS classification (grade) of each employee’s position based on the position’s duties and responsibilities. The agency indicates this was communicated in a fact sheet entitled “Conversion Out of the Public Health Human Resources System (PHHRS) Back to the General Schedule,” which explained that each employee’s position would be reviewed for classification and pay setting determinations. In its claim decision dated February 11, 2015, the agency states a Human Resources Operations Division staff member reviewed the AP-4 position occupied by the claimant and “determined that it had a full performance level GS-201-12 predecessor, to which [she] should be assigned” and that “Office of Management officials confirmed this determination.” Although perhaps inartfully described, we take this to mean the agency determined the actual work assigned to and performed by the claimant was classified properly at the GS-12 grade level.[2] Because the agency found the claimant’s AP-4 salary exceeded GS-12, step 10, the highest rate of pay at the GS-12 grade level, it provided for her conversion to the GS-12 position in a retained pay status. See 5 CFR 536.301(a)(4). Thus, we find the agency properly converted the claimant from the PHHRS to the General Schedule at GS-12, step 00, in a retained pay status, and the claim is denied.
The claimant raises numerous challenges to and assertions regarding agency actions associated with the conversion process, inter alia, (1) failure to issue “a formal letter, dictating this adverse action” (i.e., placement under retained grade), stopping her “earning potential from reaching the $115, 742.00 [13/10], which was indicated on the August 22, 2013 job announcement,” (2) retained pay status “slows down [her] cost of living to ½ for many future years,” (3) her “eligibility to qualify for a GS-14” has been “stopped,” and (4) the agency “[d]id not disclosure [sic] a disclaimer in the announcement to inform the candidates of this decision to return to the GS pay salary and this might affect the salary being offered.” She further asserts the agency failed to provide proper notice for or to advise her timely regarding the actions it took or planned to take, e.g., “The change in pay systems went in to effect three pay periods after my appointment date. To my knowledge, the agency was well aware in August 2013 and certainly prior to my appointment of their decision to return back to the GS system and as a new employee I should have been briefed.” She also takes issue with the length of time the agency took to issue a decision on her claim and its failure to create a GS-13 position and noncompetitively promote her to it as a means to meet what she perceives as its obligation under the vacancy announcement to provide for her attaining GS-13, step 10, pay.
The claims jurisdiction of OPM is limited to consideration of the statutory and regulatory merits of the individual compensation or leave claims before us. It does not extend to consideration of the equity, fairness, or resulting hardship of the agency’s actions. Therefore, the claimant’s aforementioned assertions have no applicability to our claim settlement determination. Payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990). Therefore, the claimant’s assertions that she was not advised PHHRS would end and that she should have been briefed have no effect on our decision since the end of PHHRS was permitted by law and PHHRS implementing regulations as previously discussed in this decision.
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.
[1] We declined to accept and docket the claimant's initial claim request, received on July 28, 2014, since the claimant had not as yet received a final agency denial on the merits of her claim as required under 5 CFR 178.102(a).
[2] We note the record contains a grievance examiner decision dated August 26, 2014, stating that the agency should review the conversion process to determine if it was properly followed and, if not, review her position to determine if it is classified properly. The agency’s February 11, 2015, decision followed.