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Office of Merit Systems Oversight and Effectiveness

Date: January 7, 2002
File Number: [01-0045]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is a Supervisory Auditor, GM-0511-14, employed with the [agency]. The claimant is requesting back pay because the agency failed to convert his position from the GM to the GS pay schedule. The Office of Personnel Management (OPM) received the compensation claim on July 10, 2001, and was notified on October 23, 2001, that the agency chose not to submit an agency administrative report. For the reasons discussed herein, the claim is denied.

The claimant asserts that the agency has improperly implemented the Performance Management and Recognition System (PMRS) Termination Act of 1993, Public Law 103-89, when it failed to convert his position on December 6, 1998 from GM-14 to GS-14. He identifies the claim period as December 6, 1998 to the present, when the claimant was reassigned from one Supervisory Auditor (0072) position to another Supervisory Auditor (0059) position in the [agency]. He states that "[a] conversion to the GS Pay Schedule would require an upward pay adjustment to bring me on schedule increasing my annual salary over $2000." He does not believe his duties meet the definition of supervisor or management official as provided at 5 U.S.C. §7103. However, the claimant acknowledges that he serves as the Deputy Region Chief and exercises limited supervisory authority as the Acting Region Chief.

The agency denied the claimant's request for back pay because the claimant serves as Deputy Region Chief with authority to act for the Region Chief in designated areas. The agency acknowledges that the claimant's position description has not been reviewed in some time and may contain inaccuracies, but charges that the claimant's duties meet the definition of a management official as provided at 5 U.S.C. § 7103. The agency explained that, as an auditor, the claimant "[is] responsible for conducting comprehensive analyses of [the agency] operations to detect fraud, waste, abuse and mismanagement. Our audit findings and recommendations can have a significant impact on [the agency] polices. Therefore, you [the claimant] indirectly formulate and determine, and directly influence Agency policy."

We interviewed the claimant's past supervisor from December 6, 1998 to December 3, 2000. He confirmed the claimant's assertions that he did not have supervisory responsibilities during that time, but indirectly determined policy at times. We also interviewed the claimant's current supervisor. He stated that he became the claimant's supervisor on December 3, 2000, and the claimant did not have supervisory responsibilities at that time. The supervisor added that, after review of the claimant's position description and his actual duties, the claimant was given supervisory responsibilities for two GS-13 staff auditors and one clerical employee in his office. According to the supervision, the claimant performs supervisory duties at least 40 to 45 percent of his time. He explained that the claimant exercises limited supervisory authority for auditors in the region as Acting Region Chief. He acknowledges that the claimant's position description is inaccurate as a result of the position changing over the last ten years. He stated that the claimant's position description would be included in the agency's plans to update in the future.

The Performance Management and Recognition System Termination Act of 1993 (P.L. 103-89) was enacted on September 30, 1993 and was effective on November 1, 1993. The employee, not the position, is covered by P.L. 103-89 as long as he or she continues to occupy any grade 13, 14, 15 supervisory or management official position. An employee is no longer covered when he or she is:

  • reassigned to a non-supervisor or non-management official position at the same grade at the same agency
  • has a break in service of more than 3 days
  • transferred to another agency
  • get promoted or is changed to a higher grade, or
  • get demoted or changed to a lower grade.

After October 31, 1993, P.L. 103-89 mandated that, all vacant 13, 14, and 15 graded positions should be converted to GS positions. However, each agency may use its discretion to list a position as a GM position if the position is filled by a PMRS covered employee. There are no regulations requiring the agency to change position descriptions of PMRS covered employees.

The Civilian Personnel Law Manual states that:

The Supreme Court in United States v. Testan, 424 U.S. 372 (1976), specifically held that neither the Classification Act, 5 U.S.C. § 5101 - 5115, nor the Back Pay Act, U U.S.C. § 5596, creates a substantive right to back pay for periods of wrongful classification. B-190695, July 7, 1978 and B-191360, May 10, 1978.

Agencies have authority to determine coverage under the merit pay system, and we will not require retroactive correction of designations where there were no administrative error which would warrant correction of the personnel action. Benedict C. Salamandra, B-212990, July 23, 1984.

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, 1988.* Where the record presents an irreconcilable factual dispute, the burden of proof is on the claimant to establish the liability of the United States. Jones and Short, B-205282, June 15, 1982. Where the agency's determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g. Jimmie D. Brewer, B-205452, Mar. 15, 1982. Although the claimant did not perform supervisory duties for the entire claim period, there were aspects where his work influenced policy. For the remainder of the claim period, he exercised supervisory responsibilities. Furthermore, the agency exercised its discretion on how to implement the PMRS Act. Therefore, the claim is denied.

We note that even though 5 U.S.C. § 5112 and 5346 (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 - 31 U.S.C. § 3702. The authority in section 3702 is narrow and limited to adjudications of compensation and leave claims. Section 3702 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 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).

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

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