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Office of the General Counsel

Matter of: [xxx]
Date: March 17, 2000
File Number: S003206

OPM Contact: Jo-Ann Chabot

A [xxx] member of the [xxx] of the [agency] submitted a claim for back pay and for reimbursement of deductions that the [agency] made from his paycheck.

From [xxx] to [xxx], the claimant occupied a [xxx] position. Under section 4-411 of the District of Columbia Code, he was eligible during that time to receive [xxx] pay ([xxx]) in addition to his salary ([xxx]) for a total of [xxx].(1) On [xxx], the claimant was reassigned to an [xxx] position that did not qualify for [xxx] pay, but he continued receiving his previous salary and [xxx] pay under section 4-411(e) of the D.C. Code. On [xxx], members of the [xxx] received a statutory pay increase and the claimant's pay was increased to [xxx]. Members of the [xxx] received another statutory pay increase on [xxx] and the claimant's pay should have been increased to [xxx] at that time, but he was not paid for the increase until [xxx]. The claimant, however, continued to receive [xxx] pay of [xxx] per year, in addition to his salary, until [xxx], when the agency recalculated his pay as a result of his [xxx].

The claimant stated that his reassignment from [xxx] to [xxx] resulted in an entitlement to receive grade and pay retention benefits under 5 U.S.C. 5362 until [xxx]. He also stated that he did not receive the statutory pay adjustment in [xxx]. He stated that, under grade retention, his pay should have been increased to [xxx] and he should have retained that pay indefinitely. Thus, the claimant believes that his [xxx] should have resulted in his placement at [xxx]. The agency stated that the claimant was entitled to the benefits in section 4-411 of the D.C. Code rather than to grade and pay retention benefits under 5 U.S.C. 5362. Therefore, the agency stated that the claimant erroneously continued to receive [xxx] pay after the statutory pay raise of [xxx], when his salary as a [xxx] exceeded what he had been paid as a [xxx].

The provisions governing grade and pay retention are set forth in 5 U.S.C.  5361-5366 and OPM regulations at 5 CFR Part 536. Section 5361 of title 5 defines an employee as an individual "to whom chapter 51 of this title applies, and a prevailing rate employee, as defined by [5 U.S.C. 5342(a)(2)], whose employment is other than on a temporary or term basis."(2) Section 5342(a)(2) describes individuals employed in recognized trade or craft, or other skilled mechanical craft, or in manual labor occupations, and any other individuals in positions having trade, craft, or laboring experience and knowledge as the paramount requirement. The claimant clearly is not in such an occupation or position.

Section 5102(c) of title 5 lists the statutory exclusions from chapter 51 and section 5102(c)(5) excludes members of the [xxx]. Public Law 95-179, 91 Stat. 1371 (November 15, 1977), changed the designation [xxx] to [xxx]. Public Law 95-179 also provides that "any reference in any other law or in any regulation, document, record, or other paper of the United States to [xxx] shall be held to be a reference to the [xxx]." Chapter 51 of title 5, U.S.C., clearly does not apply to the claimant. Therefore, he is excluded from coverage under the definition in 5 U.S.C. 5361 and is not entitled to grade retention benefits under section 5362. Accordingly, his claims for grade retention benefits and for placement at [xxx] of the salary schedule, retroactive to his appointment as a [xxx] are denied.

D.C. Code Section 4-411 concerns [xxx] pay, and subsection (e) is a pay saving provision that applies to individuals who are subject to the provisions of title 4, chapter 4 of the D.C. Code and are reassigned from [xxx] positions to other positions. Subsection (e) provides that, when an individual is no longer entitled to receive [xxx] pay, without a change in salary class, he shall receive basic compensation equal to the sum of his existing scheduled rate of basic compensation plus [xxx] pay "until his scheduled rate of basic compensation equals or exceeds such sum." Subsection (e), rather than 5 U.S.C. 5361-5366, applies to the claimant, and under this provision, the claimant was entitled to receive [xxx] pay until [xxx], when the statutory pay increase resulted in his receiving a higher rate of pay than he previously had received in the [xxx] position.

The claimant stated that, in [xxx], the agency deducted [xxx] from two of his paychecks for alleged salary overpayments in [xxx]. He believes that these deductions were unwarranted because he did not receive any overpayments in [xxx]. According to the agency, the National Finance Center incorrectly billed the claimant for this amount in [xxx], and in [xxx] refunded to the claimant the [xxx] that it had collected from him. Thus, the claim for [xxx] has been settled.

The claimant also stated that the agency advised him of its plans to deduct further amounts from his paychecks, and believes that this was a retaliatory action for an agency grievance that he filed. OPM's jurisdiction under 31 U.S.C. 3702(a)(2) is limited to Federal employees' claims for compensation and leave, and does not extend to an employing agency's alleged retaliatory actions. Therefore, the allegation of retaliation is dismissed.

The agency submitted an accounting, which reflects that the claimant continued to receive [xxx] pay after [xxx] (when the statutory pay increase resulted in his receiving a higher rate of pay than he previously had received in the [xxx] position), until [xxx]. According to D.C. Code Section 4-411(e), he no longer was entitled to receive [xxx] pay after his new pay rate exceed the pay he had received in the [xxx] position. The agency accounting also reflects that the claimant was underpaid from [xxx] until [xxx] because of a delay in paying his [xxx] statutory pay increase. The agency reports that the National Finance Center reconciled the overpayments and underpayments, and determined that the claimant received a net overpayment of [xxx]. Accordingly, the record reflects that the claimant's account eventually was credited for the [xxx] statutory increase, but the increase was used to offset part of the erroneous overpayments that previously had been made to the claimant.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

1. Members of the [xxx] of the [agency] are paid under salary schedules in title 4, chapter 4 of the D.C. Code.

2. OPM regulations, at 5 CFR 536.102, include within the definition of "employee" individuals who are moved from a position which is not under a covered pay schedule to positions which are under a covered pay schedule. The claimant's position was not under a covered pay schedule. See 5 U.S.C. 5361(5).

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