Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Biloxi, Mississippi
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/18/2021
Date
The claimant’s position was classified as Program Specialist, GS-0301-09, from December 2006 to in-or-around May 2021. She asserts she asked for a desk audit and position description (PD) modification to reclassify her position from a Program Specialist to a Program Analyst many times over the years. The record indicates that around May or June 2021, the claimant’s PD was reclassified to a Program Analyst, GS-0343-09, position. She now seeks retroactive reclassification of her position and back pay for the fifteen-year period between 2006 and 2021, during which time she believes her position was incorrectly classified as a Program Specialist, GS-0301-09. The U.S. Office of Personnel Management (OPM) received the request on June 21, 2021. For the reasons discussed herein, the claim is denied.
Section 178.102(a) of title 5, Code of Federal Regulations (CFR), indicates that the claimant’s employing agency must review and issue a written decision on a claim before it is submitted to OPM for adjudication. The claimant is responsible for preserving the claim period, proving the signed, written claim was filed within the applicable statute of limitations. See 5 CFR 178.104. However, the information provided by the claimant does not demonstrate that she has filed a signed, written claim with a component of the VA authorized to issue an agency-level decision or that she has received such a decision. Nevertheless, we may render a decision based on a lack of jurisdiction.
Even though section 5112 of title 5, United States Code (U.S.C.), authorizes OPM to decide position classification appeals, 5 CFR 511.701, which implements 5 U.S.C. 5112, states: “Except as provided in 5 CFR 511.703, classification action may not be made retroactive.” Section 511.703(a) of 5 CFR states: “A retroactive effective date may be required only if the employee is wrongfully demoted.” Documents provided by the claimant show that, although the classification action performed by her agency changed the series and title of her position, the grade (i.e., GS-09) remained unchanged. Therefore, OPM lacks any authority to grant retroactive back pay to the claimant for a period of perceived misclassification as she was never “wrongfully demoted.” Furthermore, back pay for periods of misclassification is statutorily barred. See 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, 180Ct. Cl. 183, 186, 376 F.2d 900, 902 (1967).” See also b-19065, July 7, 1978, and B-191360, May 10, 1978.
Equally important, section 7121(a)(1) of 5 U.S.C. 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. 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 section 178.101(b) of title 5, CFR.
Documentation contained in the record (i.e., Standard Form 50, showing the claimant’s bargaining unit status in block 37) shows the claimant occupied a bargaining unit position during the period of the claim. Furthermore, Article 43, titled “Grievance Procedure”, of the Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees (AFGE) National Veterans Affairs Council of Locals (the Union), dated March 2011, covering the claimant during her employment with the agency and in effect during the period of the claim, does not specifically exclude compensation claims (i.e., back pay) from the NGP. Therefore, in accordance with 5 U.S.C. 7121(a)(1) and Mudge v. United States, 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.
For all the reasons stated above, the claim is denied.
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.