Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Ana A. Mazzi
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance


10/21/2024

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Date

The claimant is a former Federal civilian employee of the U.S. Department of Veterans Affairs (VA) in Lacey, Washington. She requests that the U.S. Office of Personnel Management (OPM) conduct an audit of her financial records and provide back pay for years of allegedly being underpaid. We received the complete claim request on November 8, 2022. For the reasons discussed herein, the claim is denied for lack of jurisdiction and partly time barred.

On July 5, 2009, the claimant transferred from a Supervisory Information Technology Specialist, GS-2210-12, step 4, position with the U.S. Department of the Air Force (AF) to a Readjustment Counseling Therapist, GS-0101-09, step 10, position with the VA. She asserts that an error occurred in setting her pay “due to holding a previous higher [general schedule] grade and step” while transferring from AF to the VA. She asserts that she was informed by the VA that she could not be brought on as a General Schedule (GS) grade 11, even though she previously held a GS-12 position. The claimant resigned from the VA on February 23, 2013, as a GS-0101-11, step 6.

On May 15, 2016, the claimant was reinstated with the VA as a Readjustment Counseling Therapist, GS-0101-11, step 6. She states that during this time, she attempted to revisit the issue of her highest previous rate (HPR) held with AF. However, the VA failed to apply the HPR. On January 19, 2020, the claimant transferred from the VA to the U.S. Department of Labor (DOL). She was assigned to a Veterans Employment Representative, GS-0301-11, step 7, position with a full performance level of grade GS-12. On February 28, 2021, the claimant was promoted to GS-0301-12, step 3.

After receiving her promotion to the GS-0301-12, step 3, the claimant made a formal complaint within her agency to address the issue of her HPR. She asserted that because she previously held a GS-12, step 3, position that she should not have to repeat step 3 again, but instead she should have been automatically promoted to a GS-12, step 4. After months of no resolution within the agency, on May 7, 2021 the claimant sought assistance from her union and the U.S. Office of Special Counsel (OSC). As a result of her complaint with OSC, DOL retroactively promoted the claimant from a GS-0301-11, step 7, to GS-0301-11, step 10, which then altered her initial promotion. On February 28, 2021, she received a new promotion to the GS-0301-12, step 6, from the GS-0301-12, step 3. After receiving the promotion from DOL, the claimant filed a claim with OPM for back pay and an audit of her current and former positions. Specifically, she states that she was underpaid by the VA from July 5, 2009, to February 23, 2013, and from May 15, 2016, to January 18, 2020.

Section 7121(a)(1) of title 5, United States Code (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 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 title 5 of the Code of Federal Regulations (CFR), section 178.101 (b).

Information provided by the claimant to OPM (i.e., Standard Form 50, block 37 showing the bargaining unit status) shows she occupied a bargaining unit position during the period covered by the claim. The 2011 Master Agreement between the U.S. Department of Veterans Affairs and the American Federation of Government Employees, National Veterans Affairs Council of Locals covering the claimant during the claim period does not specifically exclude pay issues from the NGP (Article 43, Grievance Procedure). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and as a result OPM has no jurisdiction to settle this claim.

As stated earlier, the claimant has requested that OPM conduct an audit of her financial records. However, this request is beyond the scope of OPM’s authority under the pay claims program. OPM is responsible for adjudicating compensation and leave claims under the provisions of 31 U.S.C. 3702, and 5 CFR 178. This authority is narrow and limited to consideration of whether monies or leave are owed for the stated claim under applicable statute and implementing regulations. This process does not extend to conducting audits of financial information. Therefore, the request is misplaced and must be denied.    

In addition, the Barring Act of October 9, 1940, as amended and codified under 31 U.S.C. 3702(b) provides that a claim must be filed in this office or by the agency that conducts the activity from which the claim arose within 6 years from the date it accrues, or it is forever barred from consideration. The claimant states that her pay was improperly set when she was employed by the VA from July 4, 2009, to February 23, 2013 and again from May 15, 2016, to January 18, 2020. A complete claim was received by OPM on November 8, 2022, and nothing in the documents submitted to OPM shows the claimant submitted a compensation claim to the VA within the six-year time constraint. Therefore, under 31 U.S.C. 3702(b), any claim for back pay prior to November 8, 2016, is time barred and may not be allowed. This office has no power or authority to waive or modify the provisions of U.S. law.    

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.

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