Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Transportation
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/10/2016
Date
The claimant asserts the position she formerly occupied at FAA’s Albuquerque Enroute Air Traffic Control Center (Center) should have been upgraded in June 2004, which “affected not only [her] pay as an employee, but also [her] retirement pay.” She states: “I am requesting that my pay be adjusted to the date which the FAA determined the facility met the criteria for the upgrade and that my high three be adjusted according [sic]. I am also requesting any back pay available to me by law.” The U.S. Office of Personnel Management (OPM) received her claim request on January 19, 2016. For the reasons discussed herein, the claim is denied.
The claimant states the basis of her claim is that the Center “met all the requirements for an upgrade from ATC-10 to ATC-11” in June 2004. She asserts FAA, instead of upgrading the facility “as required by the Position Classification Standard (PCS) and the MOU [Memorandum of Understanding with the National Air Traffic Controllers Association (NATCA)], FAA personnel illegally modified the computer program with respect to Albuquerque Center only, to reflect a lower computer index, which kept [her] from receiving the pay [she] was entitled to.” The claimant further asserts FAA conceded the Center met ATC-11 criteria in its response to a grievance NATCA filed on this issue. She contends that:
While the MOU does not specifically cover the supervisors and managers [like her] at the facility it does cover the ATC Level of the facility. All controllers, supervisors and managers at the facility are covered by the rules and regulations of the MOU and the PCS….All of the supervisors and managers, who are not covered by the NATCA negotiated grievance settlement, are still covered by the laws, rules and regulations of the PCS and are entitled to the pay associated with an increase in facility ATC Level.
OPM’s authority to adjudicate Federal civilian employee compensation and leave claims under 31 U.S.C. § 3702(a)(2) 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 CFR 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 any authority to disregard the provisions of the Barring Act, make exceptions to its provisions, or waive the time limitation 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-209955 (May 31, 1983); OPM File Number S9700855, (May 28, 1998); OPM File Number 003505, (September 9, 1999).
The claimant’s request covers pay from June 2004 until December 15, 2012, when she retired from Federal service. She filed a claim on this matter with FAA dated November 11, 2015, which was denied by FAA in a letter dated January 5, 2016. Thus, the claimant preserved her claim no earlier than November 11, 2015.[1] Therefore, we must conclude that the claim for back pay prior to November 11, 2009, is time barred and may not be allowed.
The claimant states:
To clarify, we are not asking OPM to determine the classification of Albuquerque Center that was done in accordance with laws, rules and regulations set forth in the PCS and MOU; FAA has determined that Albuquerque Center met all the qualifications for upgrade to ATC-11 in June 2004.
The FAA claim decision states, in relevant part:
The FAA never upgraded Albuquerque ARTCC [Center] to the ATC-11 level due to the NATCA arbitration settlement or for any other reason. Albuquerque ARTCC is an ATC-10 level facility and always has been since the implementation of the Air Traffic Pay Plan in 1998. Therefore, you are not due any back pay or a recalculation of your retirement annuity.
* * * *
…Since the FAA never upgraded Albuquerque ARTCC, your salary was never increased to reflect such an upgrade. Therefore, your annuity, as calculated by OPM, is based upon the actual salaries you received as an FAA employee.
While the claimant contends she is not asking OPM to make a classification decision, the relief she requests would be dependent on a determination that her position, like the Center, was “undergraded” during the period of the claim, thereby leading to the upward salary adjustment and the back pay she seeks. As an initial matter, OPM’s authority under 31 U.S.C. § 3702(a)(2) is narrow and does not include any authority to decide position classification or job grading appeals. Therefore, OPM may not rely on 31 U.S.C. § 3702(a)(2) as a jurisdictional basis for deciding position classification appeals and does not consider such appeals within the context of the claims adjudication function it performs under section 3702. Cf. Eldon D. Praiswater, B-198758,
Further, back pay for periods of misclassification is barred. 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, and B-191360, May 10, 1978. Since the claimant was never appointed to a higher-graded position as she contends should have occurred at the time the Center, itself, should have been upgraded, Testan bars her entire claim.
OPM’s jurisdiction to adjudicate Federal civilian employee retirement claims is derived from other statutes. See 5 U.S.C. § 8347 for Civil Service Retirement System claims adjudication and 5 U.S.C. § 8461 for Federal Employees’ Retirement System claims adjudication. Therefore, we lack jurisdiction to respond to the claimant’s request that her annuity be adjusted under the compensation and leave administrative claims process.
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] The date FAA received the November 11, 2015, letter is not contained in the record.