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Policy, Data, Oversight Pay & Leave

Washington, DC

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

Lynn M. Clarke
Animal and Plant Health Inspection Service
U.S. Department of Agriculture
Grand Island, Nebraska
Retroactive promotion
Denied
Denied (corrective action required)
15-0054

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


11/01/2016


Date

The claimant is a Federal civilian employee of the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture (USDA), in Grand Island, Nebraska.  She requests that USDA process her career-ladder promotion retroactively.  The U.S. Office of Personnel Management (OPM) received her claim on July 21, 2015, and the agency administrative report (AAR) on December 4, 2015.  For the reasons discussed herein, the claim is denied. 

The claimant states that she was due a "pay grade increase" from GS-8 to GS-9 on her appointment anniversary date, November 2, 2014.  She asserts that her supervisor submitted her promotion recommendation to the servicing USDA Human Resource Operations (HRO) office in November 2014.  However, the promotion was not effective until February 22, 2015.  In a letter from HRO dated June 26, 2015, the claimant was informed that the promotion recommendation sent by the claimant’s supervisor was not received in November 2014, and when it was discovered that no recommendation had been received, the Animal Care Resource Management Support (RMS) staff submitted a Request for Personnel Action (SF-52) to HRO on February 9, 2015.  HRO then processed the promotion, which was made effective the beginning of the next pay period, February 22, 2015. 

In the AAR, the agency states they received an SF-52 from the Animal Care RMS on February 9, 2015, and that “the action was approved to be effective February 23, 2015 by Julie Berge, the Human Resources Specialist assigned to the Animal Care Program.”  In an email dated March 17, 2015, the agency informed the claimant that retroactive promotions are only permitted in the following circumstances: “(1) to meet a legal requirement such as a court-ordered decision; (2) to correct an administrative error made by the Human Resources office, e.g., action is approved by HR timely but does not get processed in the NFC database due to an oversight; and (3) when the promotion action cannot be processed due to staff members being unavailable to perform the work, such as during an administrative furlough like the one that occurred in October 2013.”  The agency contends that because the claimant’s case does not fall within any of the listed situations, her request for a retroactive promotion should be denied. 

Under 5 U.S.C. § 2951, section 9.2 of title 5, Code of Federal Regulations (CFR), and 5 CFR 250.101, OPM exercises the authority to instruct agencies on processing personnel actions through the Guide to Processing Personnel Actions (the Guide).  Chapter 3, subchapter 1-3a, of the Guide states:

a.      Prior Approval.  Except as explained in Table 3-A, no personnel action can be made effective prior to the date on which the appointing officer approved the action.  That approval is documented by the appointing officer’s pen and ink signature or by an approved electronic authentication in block 50 of the Standard Form 50, or in Part C-2 of the Standard Form 52.  By approving an action, the appointing officer certifies that the action meets all legal and regulatory requirements and, in the case of appointments and position change actions, that the position to which the employee is being assigned has been established and properly classified.

In addition, the Guide, subchapter 1-4a states:

a.      Requirement for approval.  As explained in paragraph 1-3a, most personnel actions must be approved by the appointing officer on or before their effective dates.  An appointing officer is an individual in whom the power of appointment is vested by law or to whom it has been legally delegated.  Only an appointing officer may sign and date the certification in Part C-2 of the Standard Form 52 or blocks 50 and 49 of the Standard Form 50 to approve an action. 

This requirement is reiterated in the USDA’s Departmental Regulations, Merit Promotion and Internal Placement, DR-4030-355-002, section 9.c (2), which states:  “Employees eligible for a career promotion who are certified by their immediate supervisor as capable of satisfactorily performing at the next highest level will be promoted on the first pay period after certification takes place and the action has been approved by the servicing HRO.”  (Italics added.)  The agency states that the Director, Office of Human Resource Management (OHRM), is the agency’s “authorized approving official,” who in turn delegates the “authority to approve personnel actions” to “Human Resources Specialists at the GS-9 level.”

The agency states in its AAR that the claimant's promotion "was approved to be effective February 23, 2015 by Julie Berge, the Human Resources Specialist assigned to the Animal Care Program.”  However, the SF-52 shows Ms. Berge's approval date in block C-2 as "3/05/2015."  Therefore, the claimant's promotion could not have been properly made effective earlier than that date.

The claimant states that she believed “as long as I met the requirements, I would get a pay grade increase on my anniversary date.  I thought it was automatic, and did not see it reflected in my pay.”  Although the claimant may have believed her “pay grade increase” would be “automatic” because, in her opinion, she had fulfilled all the qualifications for a promotion, there is no administrative regulation that requires a career ladder promotion be enacted within a specific time.  See 5 CFR 335.103(c)(3).

The claimant also states that the promotion should be retroactively set, because “the request [was sent] on time...” She adds, “If my paperwork sat in someone’s inbox before it was discovered, that is no fault of mine.”  She then asserts that her “pay is essentially being docked due to someone else’s mistake.”  In the administrative report, the agency states that “there was a disconnect in communication between the supervisor and the Resources Management Staff (RMS) regarding the employee’s promotion” and that “the supervisor had intended the employee to be promoted as soon as she was eligible.”  Nevertheless, a promotion may not be retroactive for the purpose of increasing an employee’s right to compensation.  There are exceptions to this rule, where back pay may be awarded for failure to promote an employee earlier.  The exceptions include instances when an administrative or clerical error prevents a personnel action from being effected as originally intended, results in a nondiscretionary administrative regulation or policy not being carried out, or deprives an employee of a right granted by statute or regulations.  See 58 Comp. Gen. 51 (1978); B-190408, December 21, 1977; and B-193918, September 21, 1979.  Ultimately, however, the official with delegated authority to approve the promotion must approve the promotion before any administrative or clerical error may be considered to have occurred, and an employee is not entitled to a promotion until such appointment authority has been exercised.  See OPM File Numbers 02-0027, January 15, 2003; and 10-0015, August 3, 2010.

It is well established that the effective date of a change in salary resulting from an administrative action is the date action is taken by the administrative officer vested with the necessary authority or a subsequent date specifically fixed by that administrative officer.  As discussed in OPM Compensation and Leave Claim Decision #01-0020 (May 19, 2001):

In cases involving approval of retroactive promotions on the ground of administrative or clerical error, it is necessary that the official having delegated authority to approve the promotion has done so.  Thus, a distinction is drawn between those errors that occur prior to approval of the promotion by the properly authorized officials and those that occur after such approval but before the acts necessary to effectuate the promotion have been fully carried out.  The rationale for drawing this distinction is that the individual with authority to approve promotion requests also has the authority not to approve any such request.  Where the error or omission occurs before he exercises that discretion, administrative intent to promote at any particular time cannot be established.

B-190408, December 21, 1977

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties.  See, Frank A. Barone, B-229439, May 25, 1998.  Where the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency.  See e.g., Jimmy D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, supra.  Therefore, inasmuch as the official who was delegated authority to approve the claimant's promotion had not done so prior to March 5, 2015, there is no statutory authority under which a retroactive promotion and back pay can be awarded.  The claim is accordingly denied.

In addition, the agency must correct the effective date of the claimant’s promotion to a date on or after March 5, 2015, the date the promotion was approved by the servicing HRO via Ms. Julie Berge’s signature on the SF-52 requesting the promotion. 

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the employee’s right to bring an action in an appropriate United States Court.

 

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