Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Bay Pines VA Healthcare System
Cape Coral, Florida
Damon B. Ford
Pay and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/29/2022
Date
The claimant occupies a Supervisory Engineering Technician, GS-0802-12, position within the Fort Meyers Outpatient Clinic, CW Bill Young VA Medical Center, Bay Pines VA Healthcare System, in Cape Coral, Florida. The agency reclassified his position from Engineering Technician, GS-0802-11, to Supervisory Engineering Technician, GS-0802-12, effective January 7, 2022. The claimant seeks back pay covering a period from an unspecified date in 2012 through January 7, 2022, when his position was reclassified, due to his belief that he “performed these same duties [Supervisory Engineering Technician GS-0802-12] without proper compensation and has grieved these misclassifications and followed the [agency’s] advice until [he] finally got the [position description] classified via desk audit from the GS-0802-11 to the current GS-0802-12 in January of this year.” For the following reasons, the claim is denied.
OPM’s authority to adjudicate Federal civilian employee compensation and leave claims under section 3702(a)(2) of title 31, United States Code (U.S.C.) 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 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 filed a claim for back pay, among other things, with his agency on February 24, 2022, which was denied by the agency in a Memorandum dated March 4, 2022. Thus, the claimant preserved his claim no earlier than February 24, 2022. Therefore, any claim for back pay prior to February 24, 2016, is statutorily time barred and may not be considered.
The claimant also states: “This appeal is not for Classification but rather back pay due to Agency failures.” While the claimant states he is not asking OPM to make a classification decision, the relief he requests is dependent on a determination that his position should have been classified at the GS-12 grade level during the period of the claim, thereby leading to the upward salary adjustment and associated back pay. As an initial matter, OPM’s authority under 31 U.S.C. § 3702(a)(2) is narrow and does not include 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, 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.
Moreover, an employee is entitled only to the salary of the position to which he is actually appointed, regardless of the duties performed. When an employee performs the duties of a higher grade level, no entitlement to the salary of the higher grade exists until such time as the individual is actually promoted. This rule was reaffirmed by the United States Supreme Court in United States v. Testan, 424 U.S. 392, at 406 (1976), where the Court stated that "... the federal employee is entitled to receive only the salary of the position to which he was appointed, even though he may have performed the duties of another position or claim that he should have been placed in a higher grade." See also Wilson v. United States, 229 Ct.Cl. 510 (1981). Consequently, backpay is not available as a remedy for misassignments to higher level duties or improper classifications. Regina Taylor, B-192366, Oct. 4, 1978.
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.