Washington, DC

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

---

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


12/22/2016

---

Date

The claimant is a Federal civilian employee of the U.S. Department of Agriculture (USDA) in Washington, DC.  She seeks to challenge her agency’s process for converting her Human Resources Specialist, AP-201-04, position from the Public Health Human Resources System (PHHRS) to the General Schedule (GS) as a Human Resources Specialist, GS-12, Step 7, and have her “[a]gency retroactively set [her] annual salary at a GS/13 [sic] effective Pay Period 4/2014, the effective date the agency changed from the PHHRS to GS.”  We received the claim request on April 28, 2015,[1] the agency administrative report (AAR) on July 2, 2015, and the claimant’s comments on the AAR on July 16, 2015.  For the reasons discussed herein, the claim is denied.

The record shows the claimant applied and was selected for the aforementioned AP-201-4 position (pay set at $88,948 per annum) from USDA Job Announcement Number HRO-MP-2013-0018, issued August 22, 2013.  She was placed in the position by transfer from a GS-991-12, step 4, position ($82,359 per annum).  The announcement advertised the position at both the AP-3 and AP-4 levels, with promotion potential to the AP-4 level.  As described in the vacancy announcement, the position was covered by the PHHRS Demonstration Project developed and implemented under chapter 47 of title 5, United States Code (U.S.C.).  OPM approved both the PHHRS regulation issued in Federal Register, Vol. 74, No. 17, dated January 28, 2009, and the FSIS PHHRS Demonstration Project Policies and Procedures Handbook dated October 12, 2011.  PHHRS’ purpose was to test a results-based, competency-linked pay-for-performance system using broad pay bands.  On February 23, 2014, the USDA exercised its right to end the temporary PHHRS Demonstration Project, and employees were converted back to the GS. 

The claimant seeks to challenge her conversion from PHHRS on February 23, 2014, from AP-04 ($89, 837 per annum) to GS-12, step 7 ($90,744 per annum).  In her April 9, 2014, internal agency grievance serving as the basis for her claim, the claimant asserts:

…OPM considers a job announcement as a contract and once the selected person accepts the offer for the position this is binding.  Potential selectees make life altering decisions based upon the agency stipulated salary and benefits.  In addition, OPM regulatory policy states that an agency must notify an employee in writing of a downgrade of [sic] reclassification of their position, this did not take place.  The agency position is because a 13 PD for the AP-4 band never was established; [sic] they did not have to follow reference [sic] regulations.  However, the agency failed to recognize that they did not follow regulatory policy when changing the pay scale for this position when entering the PHHRS band.

I was not formally notified that the agency had re-classified my AP-4 position as a GS-12 position and not a GS-12/13 as stated within the August 22, 2013 vacancy announcement, prior to the agency’s conversion to the General Schedule. 

Thus, the basic premise of her claim is that the aforementioned announcement functioned in a manner similar to a contract, and that the agency was obligated to place her in a situation upon conversion that would automatically provide for her attaining GS-13, step 10, pay. As stated in her agency grievance on this matter:  “My decision to accept this position was solely based upon the conditions set forth in the August 22, job announcement, along with salary and salary potential.”

It is presumed that “absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.”  Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985); accord Schism v. United States, 316 F.3d 1259, 1274-75 (Fed. Cir. 2002) (en banc) (“Federal employees . . . serve by appointment, not contract . . . .”).  Consequently, if an individual’s “employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” Hamlet v. United States, 873 F.2d 1414, 1417 n.5 (Fed. Cir. 1989).  Thus, the claimant’s assertion that her job offer based on the aforementioned vacancy announcement was a contract is contrary to law and must be rejected.  That she applied, was selected for, and appointed to a PHHRS banded position with salary potential to the GS-13, step 10, does not contractually obligate FSIS to place her in a GS-13 position upon the ending of PHHRS and conversion back to the GS as the claimant appears to assert.  Rather, her conversion back to the GS must be accomplished within the published PHHRS regulations and associated requirements of GS law and regulation.

That the salary range of her AP-4 position covered both the GS-12 and GS-13 salary ranges of the GS pay system does not mean that the AP-4 work the claimant performed was classifiable to the GS-13 grade level under the GS position classification system.  Rather, as noted in the aforementioned PHHRS Federal Register notice:

In addition, it is felt that the new pay band structure is actually more consistent with the manner in which most positions operate.  For example, the main difference between two grades may simply be that supervisory controls are closer and/or guidelines are more defined at the lower grade. . . . Combining two grades into a single pay band, for example, shifts the focus of the employee pay advancement from position classification and merit promotion criteria to performance-based pay criteria, one of the chief goals of the demonstration project.

Thus, salary progression through the AP-4 pay band was intended to be based on employee performance rather than classification criteria; i.e., the difficulty, responsibility, and qualification requirements of the work performed.  Therefore, placement in an AP-4 position provided for compensation in the GS-13 salary range for the performance of what would be classified as GS-12 level work in the General Schedule.  

The initial step in converting a PHHRS employee to the GS system requires a determination of the appropriate GS classification (grade) of each employee’s position based on the position’s duties and responsibilities.  The agency indicates this was communicated in a fact sheet entitled “Conversion Out of the Public Health Human Resources System (PHHRS) Back to the General Schedule,” which explained that each employee’s position would be reviewed for classification and pay setting determinations.  In its claim decision dated February 11, 2015, the agency states a Human Resources Operations Division staff member reviewed the AP-4 position occupied by the claimant and “determined that it had a full performance level GS-201-12 predecessor, to which [she] should be assigned” and that “Office of Management officials confirmed this determination.”  Although perhaps inartfully described, we take this to mean the agency determined the actual work assigned to and performed by the claimant was classified properly at the GS-12 grade level.[2]  Because the agency found the claimant’s AP-4 salary could be accommodated without a loss of pay at GS-12, step 7, it provided for her conversion at that grade and step.  Thus, we find the agency properly converted the claimant from the PHHRS to the General Schedule at GS-12, step 7, and the claim is denied.

The claimant raises numerous challenges to and assertions regarding agency actions associated with the conversion process, inter alia, (1) “[a] formal letter was not provided, dictating this adverse action,” (2) it “[s]topped [her] earning potential from reaching the $115,742.00 [13/10], which was indicated on the August 22, 2013 job announcement,” (3) [s]topped [her] eligibility to qualify for a GS-14” and, (4) [d]id not disclose a disclaimer in the announcement to inform the candidates of the decision to return to the GS pay salary and this might affect the salary being offered.”  She also takes issue with the length of time the agency took to issue a decision on her claim.

The claims jurisdiction of OPM is limited to consideration of the statutory and regulatory merits of the individual compensation or leave claims before us.  It does not extend to consideration of the equity, fairness, or resulting hardship of the agency’s actions.  Therefore, the claimant’s aforementioned assertions have no applicability to our claim settlement determination.  Payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law.  See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990).  Therefore, the claimant’s assertion that she was not advised PHHRS would end has no effect on our decision since the end of PHHRS was permitted by law and PHHRS implementing regulations as previously discussed in this decision.

The claimant challenges the agency’s failure to create and promote her to a GS-13 position to meet what she perceives as its obligation under the vacancy announcement to provide for her attaining GS-13, step 10, pay.  The claimant states, in relevant part, in her agency grievance:  “As a remedy to the situation would be to change my pay to reflect a GS grade 13 and step 2, in accordance with the August 23, 2013 job announcement and a desk audit, if necessary to consider accretion of duties to reflect the 13 salary.” 

Even though 5 U.S.C. § 5112 authorizes OPM to audit positions in order to decide position classification and job grading appeals, OPM’s authority to adjudicate compensation and leave claims arises from a different law -- 31 U.S.C. § 3702.  OPM’s authority under 31 U.S.C. § 3702 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 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, 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; OPM File Number 01-0045, January 7, 2002; OPM file number 07-0030, July 27, 2007.  The scope of OPM’s authority under 31 U.S.C. § 3702 also does not extend to intervening in the title 5 staffing process by determining whether a claimant’s position should be “accreted” to a higher grade as provided for under 5 CFR 335.103(c)(3)(ii).

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.

Back to Top