Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Emergency and Regulatory Compliance Services
Investigative and Enforcement Services Division
U.S. Department of Agriculture
Centerville, Iowa
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/04/2025
Date
At the time of filing, the claimant held a Federal Investigator, GS-1810-11 position with the Animal and Plant Health Inspection Service, Emergency and Regulatory Compliance Services, Investigative and Enforcement Division, U.S. Department of Agriculture (USDA) in Centerville, Iowa.[1] She requests a retroactive promotion and back pay due to a delay in processing the personnel action. The U.S. Office of Personnel Management (OPM) received the claimant’s request on January 29, 2024, and the agency administrative report (AAR) on March 19, 2024. For the reasons discussed herein, the claim is denied.
The claimant states, and the record indicates, that she met time-in-grade and performance requirements for promotion to the GS-11 grade level as of “PP5 Calendar year 2023.”[2] On February 15, 2023, the claimant’s supervisor signed a letter certifying the claimant’s work to be at an acceptable level of competence and giving approval for a career ladder promotion from the GS-09 to the GS-11 grade. Also, on February 15, 2023, USDA human resources (HR) personnel initiated and forwarded a request for personnel action using the agency’s electronic personnel action tracking system (eTracker) to the claimant’s supervisor for authorization. However, the action was not authorized by the claimant’s supervisor, until October 6, 2023, at which time the action was forwarded electronically to HR for processing. The personnel action was reviewed and approved by the servicing specialist, and was made effective on October 8, 2023, the beginning of the next pay period.
The claimant states that her promotion was delayed from PP 5 to PP 21, thus requests “restoration of [her] promotion potential date to PP05 2023” and to be compensated for loss in pay which she calculates to be $2,468.32 ($154.27 salary difference between the two grades per pay period times 16 pay periods).
In its AAR, the agency explains its decision for disapproving the claimant’s request for a retroactive promotion and associated back pay as follows:
Following both USDA and OPM guidance, MRP HRD [Marketing and Regulatory Programs Human Resources Division] establishes the effective date of a career promotion only after the underlying personnel action is reviewed and approved by an appointing officer— the qualified servicing personnel specialist.
HRD’s position is that the claim should be disallowed on the basis that 1) Agency practice is to adhere to personnel action processing practices supported by OPM’s GPPA Chapter 3, subchapter 1-3a and Chapter 4, Approval of Personnel Actions as well as USDA Department Directive DR-4030-355-002, Merit Promotion and Internal Placement; 2) Absent clearly identified administrative error, HRD does not have the authority to backdate personnel actions; and 3) There was no administrative error in the processing of the SF-52 personnel action request for the career ladder promotion of [the claimant].
OPM exercises the authority to instruct agencies on processing personnel actions through the Guide to Processing Personnel Actions (GPPA). See 5 CFR 250.101. Chapter 3, Subchapter 1-3a, Effective Dates, establishes:
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.
Further, GPPA Chapter 3, Subchapter 1-4a, Approval of Personnel Actions, establishes:
Requirement for approval. As explained in [paragraph 1-3a above], 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 49 and 50 of the Standard Form 50 to approve an action.
Relative to the requirement above, section 9.c.(2) of the USDA’s Departmental Regulation, DR-4030-355-002, Merit Promotion and Internal Placement, states in relevant part:
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 claimant requests that her promotion to the GS-11 grade level be made effective and retroactive to the date she met time-in-grade and satisfactory performance requirements. However, although she may have fulfilled the requirements for a promotion, as a general rule, a personnel action may not be made retroactive so as to increase the rights of an employee to compensation. There are exceptions to this rule where administrative or clerical error have prevented a personnel action from being effected as originally intended, resulted in nondiscretionary administrative regulations or policies not being carried out, or has deprived the employee of a right granted by statute or regulation. However, the official with delegated authority to approve the personnel action must approve the action before the administrative or clerical error occurs. See B-190408, December 21, 1977; 58 Comp. Gen. 51 (1978); and B-193918, September 21, 1979. In this case, the agency states that “[t]here was no administrative error in the processing of the SF-52 personnel action request for the career ladder promotion….” 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.
As stated in the GPPA, no personnel action can be made effective prior to the date on which the appointing officer approved the action. See OPM File Numbers 15-0054, November 1, 2016; 02-0027, January 15, 2003; and 10-0015, August 3, 2010. The record shows the claimant’s supervisor authorized the promotion action on October 6, 2023, at which time it was electronically forwarded to the HRD for processing. The agency states that upon receipt, “the promotion action was reviewed by the servicing specialist and approved,” and that an “effective date was set by the specialist for October 8, 2023, the beginning of the next available pay period.” According to the agency, the “appointing officer” is the “qualified servicing personnel specialist.” Therefore, insofar as the official who was delegated authority to approve the claimant's promotion had not done so prior to October 8, 2023, nor is there a nondiscretionary agency policy that requires that the claimant be promoted at a specific time, there is no statutory or regulatory authority under which a retroactive promotion and back pay may be awarded. Accordingly, the claimant’s request for a retroactive promotion to the time she met time-in-grade requirements and corresponding back pay is denied.
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. The record shows the effective date of the claimant’s promotion cannot be made retroactive and back pay cannot be granted because it was not approved by the agency’s delegated appointing officer prior to October 8, 2023, and thus there is no basis upon which to reverse the agency’s decision.
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 was promoted to the GS-12 grade level effective October 6, 2024.
[2] PP 5 for calendar year (CY) 2023 began on February 12, 2023.