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Washington, DC

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

Catherine C. Spofford
Department of Veterans Affairs
Portland, Oregon
Back pay for working outside title 38 functional statement
Denied; Lack of jurisdiction

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



The claimant, who states she occupies a “Senior Social Worker, GS-185-12”[1] position with the U.S. Department of Veterans Affairs (VA), seeks to file an “FLSA claim [Fair Labor Standards Act] claim” and receive “retroactive compensation for performing the duties of a GS 12 between November 22, 2011 and March 26th 2014 [sic][2]” when she officially occupied a GS-11 position, and “retroactive compensation as a GS 13 from October 1, 2013 until the present since [she has] been working out of class and [her] performance has been evaluated on criteria not in [her] functional statement.”  We received the claim request on July 28, 2014.  For the reasons discussed herein, the claim is denied for lack of jurisdiction.

The claimant states she is “currently an exempt GS 12/5”and does not question her FLSA exemption status.  The FLSA claims process in subpart G of part 551 of title 5, Code of Federal Regulations (CFR), covers disputes over FLSA exemption status, failure to pay FLSA nonexempt employees the minimum wage or the proper overtime pay, and child labor complaints.  As an FLSA exempt employee who is not disputing her exemption status, the claimant is not covered by the FLSA claims process since it does not cover the issue she raises; i.e., not receiving the correct rate of basic pay for performing higher graded duties.  Therefore, for purposes of responding to her claim, we have treated it as a Federal civilian employee compensation claim which OPM is authorized to settle under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.), and part 178 of title 5, 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; i.e., VA Central Office’s Compensation and Classification Service.  Therefore, the claim is not ripe for review.  Nevertheless, we may render a decision on her claim based on lack of jurisdiction.

Section 7121(a)(1) of title 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 5 CFR 178.101(b).

The record shows the claimant occupied a bargaining unit position during the first period of the claim; i.e., between November 22, 2011, and March 26, 2012.  The CBA between VA and the American Federation of Government Employees covering the claimant during this period of the claim does not specifically exclude pay issues from the NGP (Article 43).  Therefore, to the extent this portion of her claim is construed as a request for underpayment of wages, it 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 portion of the claim or intervene in this matter.  As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact that the claimant no longer occupies a bargaining unit position does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by the CBA arbitration and grievance procedures that arose during and from her employment with VA while in a bargaining unit position.

VA social workers appointed as hybrid title 38 employees under the provisions of 38 U.S.C. § 7401(3) and 38 U.S.C. § 7402(b)(9) are placed in pay grades under the provisions of VA Handbook 5005/50, Part II, Appendix G39, by a social worker Professional Standards Board (PSB) as provided in VA Handbook 5005/70, Part II, Chapter 3, Section C.  Employees appointed under these provisions are placed in positions documented by functional statements.  See, e.g., VA Handbook 5005/61, Part IV, chapter 2, Section C.  VA’s Human Resources Management Letter No. 05-08-05, Guidance for the Preparation of Title 38 Functional Statements (March 17, 2008), which also cover hybrid title 38 employees, states:  “A functional statement is an official statement of the major duties and responsibilities assigned by management to a position.” 

Thus, assignment to a functional statement is part of a combined staffing (qualifications determination) and classification (grade level determination) process.  The scope of OPM’s authority under 31 U.S.C. § 3702 (a)(2) is narrow and does not include intervening in the hybrid title 38 staffing and classification process by determining whether the claimant’s functional statement is accurate or qualifies her for placement on a GS-13 functional statement, thereby providing for her to receive GS-13 pay.  This determination would be necessary for OPM to render a decision on the merits of the claimant’s underlying compensation claim.  Accordingly, OPM lacks jurisdiction to adjudicate the claimant’s pay claim.  This decision is consistent with previous claim decisions issued by OPM and the General Accounting Office, now the Government Accountability Office, the agency formerly charged with settling compensation and leave claims under § 3702(a)(2), which found 31 U.S.C. § 3702(a)(2) does not provide a jurisdictional basis for deciding position classification appeals and does not consider such appeals within the context of the claims adjudication function performed under § 3702.  Cf. Eldon D. Praiswater, B-198758, December 1, 1980 (Comptroller General, formerly authorized to adjudicate compensation and leave claims under section 3702, did not have jurisdiction to consider alleged improper job grading); Connon R. Odom, B-196824, May 12, 1980 (Comptroller General did not have jurisdiction to consider alleged improper position classification); OPM file number 01-0016, April 19, 2001; and OPM file number 01-0045, January 7, 2002.  Therefore, our review of the period of the claim from October 1, 2013, is also barred for lack of subject-matter jurisdiction.

Even assuming, arguendo, a favorable action results from a PSB review, the claimant may not be awarded back pay.  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.  United States v. McClean, 95 U.S. 750 (1878); Ganse v. United States, 180 Ct. Cl. 183, 186, 376 F.2d 900, 902 (1967).”  See also B-19065, July 7, 1978; B-191360, May 10, 1978; OPM file number 10-0042, November 3, 2010; OPM file number 11-0030, November 15, 2011; and OPM file number 12-0009, May 31, 20012.

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.

[1]  Notification of Personnel Action Standard Form 50s show the position is officially titled Supervisory Social Worker.

[2] Properly referenced elsewhere in the claim as March 26, 2012.

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