B-243818, Jun 7, 1991

B-243818: Jun 7, 1991

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The general rule is that even though a position which an incumbent occupies is subsequently reclassified to a higher grade. The employee's entitlement to the salary of the higher grade does not commence until he is actually promoted to that grade. May be paid backpay as a result of a successful classification appeal wherein his position was upgraded from auditor. That backpay be awarded since he was wrongfully deprived of his pay. He states that his classification appeal was so strongly in his favor that it disclosed the unsatisfactory desk audit conducted on his position. He says that the Director signed a Standard Form (SF) 172 stating that he was misassigned as a GS-11 during the period May 15.

B-243818, Jun 7, 1991

CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Eligibility - Adverse personnel actions - Classification DIGEST: The employee's claim for a retroactive promotion with backpay for a 9- month period of alleged erroneous classification and delay in having his position reclassified, may not be paid. The general rule is that even though a position which an incumbent occupies is subsequently reclassified to a higher grade, the employee's entitlement to the salary of the higher grade does not commence until he is actually promoted to that grade. Neither the Classification Act, 5 U.S.C. Secs. 5101-5115 (1988), nor the Back Pay Act, 5 U.S.C. Sec. 5596 (1988), create a substantive right to backpay for periods of wrongful classification actions. See United States v. Testan, 424 U.S. 392 (1976).

Steven M. Seyfried:

The Department of the Army requests a determination as to whether an employee of the agency, Mr. Steven M. Seyfried, may be paid backpay as a result of a successful classification appeal wherein his position was upgraded from auditor, GS-11 to GS-12, effective March 10, 1991. /1/

Mr. Seyfried, the incumbent in the auditor position, requests that the effective date of the reclassification be made retroactive to May 15, 1990, and that backpay be awarded since he was wrongfully deprived of his pay. He states that his classification appeal was so strongly in his favor that it disclosed the unsatisfactory desk audit conducted on his position. Mr. Seyfried reports that the appeals board found that, as the incumbent in the position, he performed all four job subfactors. He feels that due to the inexperience of the desk auditor, he lost 9 months of time -in-grade at the GS-12 level and over $3,000. Mr. Seyfried states that the Director of Civilian Personnel wrote a memorandum stating that he would receive service credit, for qualification purposes, at the GS-12 grade level for the period May 15, 1990, to March 9, 1991. Further, he says that the Director signed a Standard Form (SF) 172 stating that he was misassigned as a GS-11 during the period May 15, 1990, until March 9, 1991, due to the incorrect determination made by a desk audit of his position.

Mr. Seyfried contends that the Back Pay Act, 5 U.S.C. Sec. 5596 (1988), authorizes retroactive recovery of wages whenever a federal employee has undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or part of the compensation to which the employee is otherwise entitled. He also argues that court cases stipulate that an admission of misclassification by the agency automatically gives rise to a cause of action for money damages. /2/

Based on the applicable statutes, we cannot agree with the claimant. The classification of positions under the General Schedule is governed by the provisions of 5 U.S.C. Sec. 5101-5115. Section 5115 empowers the Office of Personnel Management to prescribe regulations necessary for the classification of such positions. The OPM regulations provide that the effective date of a change in the classification of a position resulting from a classification appeal decision by either an agency or OPM is not earlier than the date of the decision and not later than the beginning of the fourth pay period following the date of the decision. /3/ The sole provision allowing a retroactive effective date is when the employee is wrongfully demoted. /4/

Further, the Back Pay Act clearly states that the payment of backpay based upon an unjustified or unwarranted personnel action does not apply to any reclassification action. /5/

The Supreme Court of the United States has held that neither the Classification Act nor the Back Pay Act create a substantive right to backpay for periods of wrongful position classification. /6/

Finally, in a long line of decisions, this Office has held that federal government employees are entitled only to the salaries of the positions to which they are appointed, regardless of the duties they actually perform. Thus, even if a position to which an employee is appointed is subsequently reclassified to a position of higher grade, entitlement to the pay of the higher grade does not commence until the employee is actually appointed to the higher grade. Alleged delays by the agency in processing job descriptions or delays in reclassifying a position to a higher grade do not provide a basis for backpay. /7/

Accordingly, the Department of the Army may not grant Mr. Seyfried a retroactive promotion with backpay under the provisions of the Back Pay Act.

/1/ The request was submitted by Mr. John R. Nino, Director, Civilian Personnel, Department of the Army.

/2/ Pettit v. United States, 488 F.2d 1026, 203 Ct.Cl. 207 (1973); Allison v. United States, 451 F.2d 1035, 196 Ct.Cl. 263 (1971).

/3/ 5 C.F.R. Sec. 511.702(a) (1991).

/4/ 5 C.F.R. Sec. 511.703(a) (1991).

/5/ 5 U.S.C. Sec. 5596(b)(3) (1988).

/6/ United States v. Testan, 424 U.S. 392 (1976).

/7/ 52 Comp.Gen. 631 (1973); Ella M. Richardson and Sharon G. Dover, B-227331, Feb. 29, 1988; Gordon L. Wedemeyer, B-200638, Oct. 9, 1981; Connon R. Odom, B-196824, May 12, 1980; George W. Noller, B-192560, Dec. 14, 1978.