Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of Veterans Affairs
Sheridan, WY
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/17/2018
Date
The claimant was employed as a Physician Assistant, GS-0603-13, at the Veterans Affairs Medical Center, U.S. Department of Veterans Affairs (VA) during the claim period. In her October 3, 2017, letter received by the U.S. Office of Personnel Management (OPM) on October 5, 2017, the claimant requests various OPM settlements including, but not limited to, overtime pay, a retroactive salary increase from 2014 forward, moving expenses, and advanced pay. 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 title 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 her request does not show she has filed a signed, written claim with the agency component authorized to issue an agency-level decision or that she has received such a decision. Nevertheless, we may render a decision on her claim based on lack of jurisdiction.
5 U.S.C. section 7121(a)(1) directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA. The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. section 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA. Mudge v. United States, 308 F.3d 1220, 1228 (Fed.Cir. 2002). Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA. Id. at 1231. As such, OPM cannot assert jurisdiction over the compensation or leave claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP. See 5 CFR 178.101(b).
Personnel documents contained in the record (i.e., Standard Form 50 showing the bargaining unit status in block 37) show the claimant occupied a bargaining unit position during the period covered by the claim. The Master Agreement between the VA and the American Federation of Government Employees covering the claimant during her employment with the VA, and in effect during the period of the claim, does not specifically exclude compensation issues from the NGP (Article 43 in the CBA effective March 2011). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate this claim.
As mentioned, the claimant requests a retroactive salary increase to 2014. She states she performed compensation and pension exams, which she apparently believes were higher-graded duties. Although we may not render a decision on this claim, we note that back pay for periods of misclassification is statutorily barred (5 U.S.C. 5596(b)(3)). An employee is entitled only to the salary of the position to which he or she is appointed, regardless of the duties performed. When an employee performs the duties of a higher grade level, there is no entitlement to the salary of the higher grade until the individual is actually promoted. United States v. Testan, 424 U.S. 392 (1976); B-232695. Therefore, back pay is not available as a remedy for mis-assignments to higher level duties or improper classifications. Id.; B-192366.
Nor can the claimant find relief here for her claims of denied training and denied advancement into management. The authority in 31 U.S.C. 3702 is narrow and limited to the adjudication of compensation and leave claims. Section 3702 does not include the authority to settle disputes of denied training or advancement into management. Therefore, OPM does not consider such appeals within the context of the claims adjudication function it performs under title 31 U.S.C. 3702.
Finally, the claimant requests reimbursement for relocation expenses. However, OPM does not have authority to consider this request or assert jurisdiction on this matter. The General Services Administration’s (GSA) U.S. Civilian Board of Contract Appeals, not OPM, is responsible for issuing regulations on travel, transportation, and subsistence expenses and allowances for Federal civilian employees as authorized in Chapter 57 of title 5, United States Code. GSA’s Civilian Board of Contract Appeals is responsible for settling travel, transportation and subsistence claims (http://www.cbca.gsa.gov/)
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.