Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of Justice
Tucson, Arizona
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/02/2016
Date
The claimant is employed as a Legal Assistant (Office Automation), GS-986-7, with the U.S. Attorney’s Office, Department of Justice, in Tucson, Arizona. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of her request to retroactively set pay upon appointment to her GS-7 position at a rate no less than step 8. We received the claim request on September 1, 2015, and the claim administrative report on November 12, 2015. For the reasons discussed herein, the claim is denied.
The claimant accepted the agency’s June 20, 2014, job offer stating the pay of her current position would be set at GS-7, step 1. She subsequently requested a review, dated July 30, 2015, of the pay-setting action from her servicing human resources office. In its August 5, 2015, denial letter, the agency asserts the claimant’s pay was set in accordance with section 531.211 of title 5, Code of Federal Regulations (CFR), stating an agency is only obligated to set the payable rate of basic pay at the minimum rate of the rate range for the employee’s position of record. The agency also notes that 5 CFR 531.212(e) requires approval for using the superior qualifications and special needs pay-setting authority, to set pay above the minimum rate, prior to an employee entering on duty, which did not occur in this instance.
The claimant disagrees with the agency, seeking adjustment of her “GS Step Level Rating” to no less than the GS-7, step 8, rate which she believes is “commensurate with [her] education and work experience.” To support her claim, she asserts that her paralegal-related education and work experience exceeds that of her coworkers, she is assigned to support more attorneys than the legal assistants at other offices, and the turnover rate for legal assistants is high. The claimant provided her resume, copies of diplomas and transcripts, and her performance appraisal, and a description of her education and work history to support her assertions.
Regardless, 5 CFR 531.211 makes clear an agency is only obligated to set the payable rate of basic pay at the minimum rate of the rate range for the employee’s position of record for an employee receiving his or her first appointment. Setting pay above the minimum rate under the superior qualifications and special needs pay-setting authority in 5 CFR 531.212 is at the discretion of the agency. Further, 5 CFR 531.212(e) states the agency must approve each determination to use the superior qualifications and special needs pay-setting authority prior to the candidate entering on duty.
The language applying to the superior qualifications and special needs pay-setting authority in 5 CFR 531.212 is revealing. By using the permissive term “may” in relation to the superior qualifications and special needs pay-setting authority, agencies are clearly granted discretionary authority in allowing or disallowing the setting of the payable rate of basic pay for a newly appointed employee above the minimum rate of the grade. In contrast, the regulations clearly shift to clear and mandatory terms (e.g., “will,” “shall,” or “must”) to describe the timing of such pay-setting determinations, plainly stating decisions must be made before the employee enters on duty.
Within the scope of 5 CFR 531.212, which sets forth basic eligibility criteria for using the superior qualifications and special needs pay-setting authority, the head of an agency may issue further implementing instructions for the guidance of the agency with regard to the granting of and accounting for the use of pay-setting authorities. In this instance, agency implementing guidance and instructions contained in United States Attorneys’ Procedures (USAP) No. 3-4.531.001 (Submitting Requests for General Schedule Appointments Above the Minimum Rate), may impose additional requirements. The USAP instructs:
Requests for “above the minimum rate” appointments must be approved before an applicant is authorized to enter on duty. Failure to obtain approval prior to appointment invalidates the possibility of a higher rate of compensation under this authority.
In the AAR, the agency states it “was not necessary to set pay above the minimum rate for this recruitment due to the number of high quality candidates referred for selection.” They further state that “incentives were not required to recruit high quality candidates” since out of the 40 applicants referred to the “Best Qualified” category, six individuals accepted the offer of employment at the GS-7, step 1, rate.” There is no documentation in the record showing approval for an “above the minimum rate” appointment prior to the claimant’s entrance on duty as required by 5 CFR 531.212(e) and the USAP, and there is no statutory authority under which approval for using the superior qualifications and special needs pay-setting authority can be made retroactive. Section 531.212 of title 5, CFR, in addition to the agency’s implementing guidelines and instructions, provide for no situations under which superior qualifications or special needs pay-setting determinations can be approved after the employee’s entrance on duty. Accordingly, the claim is denied.
The claimant states she supports complex cases and performs work normally assigned to GS-8 or GS-9 employees. Implicit in the claimant’s rationale is an assertion that she performs higher-graded work. We note that even though sections 5112 and 5346(c) of title 5, United States Code (U.S.C.), authorize OPM to decide position classification and job grading appeals, respectively, OPM’s authority to adjudicate compensation and leave claims flows from a different law, i.e., 31 U.S.C. 3702. The authority in 31 U.S.C. 3702 is narrow and limited to adjudication of compensation and leave claims 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 or job grading appeals, and does not consider such appeals within the context of the claims adjudication function that it performs under 31 U.S.C. 3702. Cf. Eldon D. Praiswater, B-198758, December 1, 1980, (Comptroller General, formerly authorized to adjudicate compensation and leave claims under 31 U.S.C. 3702, did not have jurisdiction to consider alleged improper job grading); Conon R. Odom, B-196824, May 12, 1980. See OPM File Numbers 01-0034, October 30, 2001; and 05-0049, March 29, 2006. Therefore, we may not address the claimant’s assertions that she performs higher-graded work under the provisions of 31 U.S.C. 3702[1].
The claimant also states she volunteered for three months to perform the work of a GS-8 employee on maternity leave. Employees of the Federal Government are entitled only to the salaries of the positions to which they are actually appointed regardless of the duties they perform. When an employee performs duties normally performed by a higher graded employee, no entitlement to the salary of the higher level position exists until such time as the individual is actually promoted to that level. See B-192560, December 14, 1978. Therefore, assuming the claimant performed work above the GS-7 grade level, she is precluded from being compensated for the work at a higher salary than the official position she occupies. See OPM File Numbers 01-0034, October 30, 2001; and 05-0049, March 29, 2006.
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 claimant filed a classification appeal with OPM under 5 U.S.C. 5112. The grade of her position and her classification-related assertions are reviewed under separate decision.