Washington DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Fort Riley, Kansas
Ana A. Mazzi
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/17/2024
Date
The claimant previously occupied an Emergency Management Specialist, GS-0089-11, position with the U.S. Army Medical Command, Department of the Army (DA), at Fort Riley, Kansas. Through his representative, he asserts that although he was assigned to a GS-11 position, he performed higher graded work from August 25, 2012, to August 2018.[1] He specifically seeks back pay for “the difference in pay and step increases he should have received if his position had been appropriately classified [to the GS-13 level].” The U.S. Office of Personnel Management (OPM) received the claim on November 7, 2022. For reasons discussed herein, the claim is denied.
The subject line on the claim reads, “Classification Appeal and [Fair Labor Standards Act (FLSA)] Claim…” Congress vested OPM with the authority to administer the provisions of the FLSA with respect to certain Federal civilian employees. See section 204(f) of title 29, United States Code (U.S.C.). OPM adjudicates FLSA minimum wage and overtime claims for covered Federal employees under the provisions of part 551, subpart G of title 5, Code of Federal Regulations (CFR). The FLSA pay claims process provides a means of redress to Federal employees who dispute whether they have been paid properly for all hours of work due under the FLSA.
The grade of a General Schedule position is reviewable under the provisions of 5 U.S.C. 5112(b). An employee may file a classification appeal with OPM if he or she believes the duties of his or her current official position are incorrectly classified. However, the claim includes an August 15, 2022, email communication between the agency human resources official and claimant who states, “Please verify the attached Position Description is correct for my position at Irwin Army Community Hospital until my departure in August 2018.”[2] The relief he seeks, i.e., the back pay for the difference in pay and step increases, is dependent on a determination that his DA position should have been classified to the GS-13 grade level from August 2012 to August 2018, thereby leading to the salary adjustment and associated back pay. However, OPM’s classification appeals process only covers disputes as to whether an employee’s current official position is compensated at the correct grade level of pay.
The claim combines two different types of requests but neither cover disputes as to whether work previously performed by an employee was compensated at the correct grade level of pay. Under provisions of 31 U.S.C. 3702, Congress vested OPM with the authority to adjudicate compensation and leave claims for many Federal employees. OPM’s adjudication authority is an administrative remedy, not a judicial remedy. See 5 CFR part 178. As such, we considered the claim under provisions of 31 U.S.C. 3702(a)(2).
OPM has authority to adjudicate compensation and leave claims from many Federal employees under 31 U.S.C. 3702. Part 178, subpart A of 5 CFR, concerns the adjudication and settlement of Federal civilian employee claims for compensation and leave. Section 178.103 states that a claim filed by a claimant’s representative must be supported by a duly executed power of attorney or other documentary evidence of the representative’s right to act for the claimant. Although OPM requested such evidence in our October 5, 2020, letter in response to the request initially filed on the claimant’s behalf, we note the claim we subsequently received on November 7, 2022, lacked documentation supporting a duly executed power of attorney. Nevertheless, we may render a decision on this matter based on other grounds as follows.
Section 178.102(a) of 5 CFR indicates that the employing agency has reviewed and issued a written decision on the claim before it is submitted to OPM for adjudication. The information provided in the claim at issue does not show the claimant has filed a signed, written claim with the agency component authorized to issue an agency-level decision or that he has received such a decision. The claim is therefore not ripe for adjudication by OPM.
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 established in the Barring Act at 31 U.S.C. 3702(b)(1), 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. The Barring Act does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received 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 limitations that it imposes. See Matter of Nguyen Thi Hao, B-253096, August 11, 1995. To satisfy the statutory limitation, a claim must be received by 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 burden of proof is on the claimant to prove the timeliness of the claim, the liability of the Government, and his or her right to payment. As previously stated, nothing in the record shows the claimant filed a signed, written claim under 31 U.S.C. 3702(b)(1) with DA. An initial claim regarding this matter was filed on claimant’s behalf with OPM, which was received on September 10, 2020, and subsequently denied in an October 5, 2020, letter. He thus preserved his claim with OPM no earlier than September 10, 2020. The claimant’s request covers pay associated with work performed commencing on August 25, 2012. Based on the information before us, we conclude his claim for back pay prior to September 10, 2014, is time barred and may not be allowed.
Moreover, the claimant’s underlying issue, regarding the work performed from August 25, 2012, to August 2018, according to his claim, is that “had [his duties] been properly weighted, it is likely his position would have been graded as a GS-13.” However, 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, back pay is not available as a remedy for misassignments to higher level duties or improper classifications. Regina Taylor, B-192366, October 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.
[1] Because the claim identifies conflicting end dates for the period the claimant asserts performing higher graded work (i.e., August 6, 2018, or August 8, 2018), we identify the end date in our decision as August 2018.
[2] OPM made multiple attempts to obtain Standard Form 50s from the agency and claimant’s representative to confirm his employment status but we were unsuccessful. Nonetheless, based on the claimant’s statement (i.e., “…my position at Irwin Army Community Hospital until my departure in August 2018.”) and his current “@va.gov” email address indicative of employment with another Federal agency, we conclude he no longer occupies the GS-11 position with DA he seeks to appeal.