Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Veterans Health Administration
U.S. Department of Veterans Affairs
Northport, New York
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/31/2023
Date
The claimant occupies a Nurse Manager position with the Northport Veterans Affairs Medical Center, Veterans Health Administration (VHA), U.S. Department of Veterans Affairs (VA), in Northport, New York. He asserts his agency did not appropriately compensate him when he was detailed to an Associate Chief Nursing Service position from December 2015, through November 2016, and again from June 2018, through December 9, 2021. The U.S. Office of Personnel Management (OPM) received the claim request filed by his duly appointed representative on September 8, 2022. For reasons discussed herein, the claim is denied.
As an initial matter, the claimant’s request appears to be presented as a position classification appeal. OPM administers the position classification appeals program for certain Federal employees under the authority of section 5112 of title 5, United States Code (U.S.C.). However, 5 U.S.C. 5102(c)(3) states: “This chapter does not apply to physicians, dentists, nurses, and other employees in the Veterans Health Administration of the Department of Veterans Affairs whose pay is fixed under chapter 73 of title 38.” Consequently, VA nurse employees in the VHA like the claimant are statutorily excluded from OPM’s position classification appeals jurisdiction. Therefore, OPM does not have jurisdiction to adjudicate this request as a classification appeal.
Alternatively, OPM is also authorized to settle compensation claims for certain Federal employees under the provisions of section 3702(a)(2) of title 31, 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 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 to OPM does not demonstrate that he has filed a signed, written claim with a component of the VA authorized to issue an agency-level decision or that he has received such a decision. Nevertheless, we may render a decision based on a lack of jurisdiction.
Most importantly, 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.” See also B-19065, July 7, 1978, and B-191360, May 10, 1978. Therefore, when an employee performs the duties of a higher grade level, no entitlement to the salary of the higher grade exists until such time as the individual is actually promoted. Accordingly, the request for back pay for performing higher graded duties when detailed twice to the position but never appointed is denied.
The claimant also requests that OPM “investigate” the matter of the claimant performing Associate Chief Nursing Service duties without additional compensation and states the agency should not be allowed to assert the claimant does not meet the “educational qualifications” for the higher graded position. Although OPM does not have jurisdiction to adjudicate this claim, we note that OPM’s claims jurisdiction is limited to consideration of statutory and regulatory liability. OPM adjudicates pay claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. OPM’s compensation claims program does not perform investigations on the educational qualification requirements of a position. Therefore, this request is beyond the scope of our claim adjudication authority and is also 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.