Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Defense Health Agency
Fort Bragg, North Carolina
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/17/2024
Date
The claimant currently occupies a Hospital Housekeeping Officer, GS-0673-12, position within the Army Medical Center Womack, Defense Health Agency, in Fort Bragg, North Carolina. In early 2012, while working in a Federal civilian position in another Federal installation, he applied and was selected for an Environmental Services Manager, GS-0301-11 position, in Fort Bragg. He asserts that when he spoke to individuals at Fort Bragg “[d]uring the offer period” he was led to believe the GS-11 position would be upgraded to the GS-12 level within three to four months after appointment. He accepted the position and transferred to Fort Bragg effective June 17, 2012. The agency states the claimant was not promised a promotion and his organization requested the servicing Civilian Human Resources Agency (CHRA) review the position. CHRA determined the position should be reclassified and on July 27, 2014, the claimant was promoted to his current position. He seeks a retroactive grade increase and back pay but does not clearly state the requested timeframe. For the reasons discussed herein, the claim is denied.
The Office of Personnel Management’s (OPM) authority to adjudicate Federal civilian employee compensation and leave claims under section 3702(a)(2) of title 31, United States Code (U.S.C.) is subject to the statute of limitations in 31 U.S.C. 3702(b)(1) (Barring Act), which states every claim against the United States is barred unless such claim is received within six years after the date such claim first accrued. Consequently, the six-year limitation period included within 31 U.S.C. 3702(b)(1) applies to the pay at issue in this claim. See B-203242 (1982); B-201183 (1981); B-203344 (1981). To satisfy the statutory limitation, a claim must be received by the OPM, or by the department or agency out of whose activities the claim arose, within six years from the date the claim accrued. See 5 Code of Federal Regulations 178.104(a). The Barring Act does not merely establish administrative guidelines, it specifically prescribes the time within which a claim must be received in order for it to be considered on its merits. OPM does not have the authority to disregard the provisions of the Barring Act, make exceptions to its provisions, or waive the time limitations that it imposes. See Matter of Nguyen Thi Hao, B-253096.3 (August 11, 1995); Matter of Jackie A. Murphy, B-251301 (April 23, 1993); Matter of Alfred L. Lillie, B-203344 (August 3, 1981); B-29955 (May 31, 1983); OPM File Number S9700855, (May 28, 1998); OPM File Number 003505, (September 9, 1999).
The claimant initially filed a claim for a retroactive grade increase and back pay with OPM on October 26, 2020. Therefore, any claim for back pay prior to October 26, 2014, is statutorily time barred and may not be considered.
Relevant to this claim, and included in the record, is a letter dated July 9, 2018, written by the claimant to two management officials under the subject “To receive back pay for GS12 position.” However, the brief letter contains no content one would expect to find in a proper pay claim (i.e., the basis for the claim and the amount of compensation sought). Therefore, we do not find that the seemingly informal letter sufficiently established an official compensation claim. As cited in the Barring Act, he was required to submit a claim to OPM, or the department or agency in which the claim occurred within six years from the date the claim happened. Even assuming the claimant’s letter was a pay claim, he is not entitled to a retroactive pay increase because 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, 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 is denied.
The claimant asserts he accepted the GS-0301-11 position based on his understanding the position would be upgraded to the GS-12 level within three to four months after appointment. However, it is well settled by the courts that a claim may not be granted based on a misinterpretation of information provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice or a misinterpretation of information provided by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990); Falso V. OPM, 116 F.3d 459 (Fed. Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that it appears there is a difference between what was understood by the claimant and management officials, does not confer eligibility not otherwise permitted by statute or its implementing regulations.
In his request to OPM, the claimant requests OPM “look into” the promise he received of an upgrade to the GS-12 level. The claims jurisdiction of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. OPM has no authority to authorize payment based on the hiring actions taken by an agency. Therefore, the claimant’s assertion has neither merit nor applicability to our claim determination.
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.