[Comments on Army Employee's Request for Reconsideration of OPM Classification Appeal Decision]

B-225011, JAN 13, 1987, OFFICE OF GENERAL COUNSEL

CIVILIAN PERSONNEL - COMPENSATION - CLASSIFICATION - APPEALS - GAO REVIEW CIVILIAN PERSONNEL - COMPENSATION - RETROACTIVE COMPENSATION - ELIGIBILITY - ADVERSE PERSONNEL ACTIONS - CLASSIFICATION DIGEST: IN JUNE 1984, ATLANTA REGIONAL OFFICE OF OPM ISSUED A CLASSIFICATION APPEAL DECISION WHICH CONCLUDED THAT THE EMPLOYEE'S POSITION WAS PROPERLY CLASSIFIED AS A GS-301-12. IN MAY 1986, EMPLOYEE REQUESTED OPM TO RECONSIDER THE DECISION, IN CITING CERTAIN EXTENUATING CIRCUMSTANCES. OPM DECLINED TO RECONSIDER, CITING THE DELAY IN THE REQUEST OF ALMOST 2 YEARS. THE CLASSIFICATION DECISION ISSUED BY OPM AND ITS DECISION NOT TO RECONSIDER ARE MANDATORY AND BINDING ON ALL ADMINISTRATIVE, CERTIFYING, PAYROLL, DISBURSING, AND ACCOUNTING OFFICIALS OF THE FEDERAL GOVERNMENT. 5 U.S.C. SEC. 5112 (1982); 5 C.F.R. SEC. 511.612 (1982). THE GAO HAS NO AUTHORITY TO WAIVE OR MODIFY THE APPLICATION OF THE PREVIOUSLY CITED LAW, REGULATIONS, OR DECISIONS OF OPM IN CLASSIFICATION MATTERS. MOREOVER, U.S. V. TESTAN, 424, U.S. 392 (1976), PRECLUDES BACKPAY FOR WRONGFUL CLASSIFICATION ACTIONS.

THE HONORABLE CHARLIE ROSE:

THIS LETTER IS IN RESPONSE TO YOUR LETTER OF SEPTEMBER 29, 1986, ON BEHALF OF YOUR CONSTITUENT, MR. JARVIS E. GUST, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CONCERNING HIS REQUEST FOR RECONSIDERATION OF THE CLASSIFICATION APPEAL DECISION BY THE ATLANTA, GEORGIA, REGION, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (OPM).

IN YOUR LETTER, YOU REQUEST THAT WE REVIEW MR. GUST'S CASE WITH OPM AND MAKE A VALID INTERPRETATION OF THE SUPREME COURT RULING IN UNITED STATES V. TESTAN, 424, U.S. 392 (1976).

THE PRIMARY ISSUED PRESENTED BY MR. GUST IS WHETHER, UNDER THE FACTS AND CIRCUMSTANCES SURROUNDING HIS CLASSIFICATION APPEAL, HE IS ENTITLED TO A REVIEW BY THE CLASSIFICATION APPEALS OFFICE OF OPM OF THE CLASSIFICATION APPEAL DECISION BY THE ATLANTA REGION.

THE RECORD SHOWS THAT MR. GUST FILED A CLASSIFICATION APPEAL OF HIS POSITION AS PLANS AND OPERATIONS OFFICER, GS-301-12, WITH THE SOUTHEAST REGIONAL OFFICE OF OPM IN ATLANTA. BY DECISION DATED JUNE 29, 1984, THE REGIONAL OFFICE DETERMINED THAT MR. GUST'S POSITION HAD BEEN PROPERLY CLASSIFIED AT GS-301-12. IN THE LETTER ACCOMPANYING THE DECISION, OPM STATED THAT THE APPELLATE DECISION CONSTITUTED A CERTIFICATE WHICH IS MANDATORY AND BINDING ON ALL ADMINISTRATIVE, CERTIFYING, PAYROLL, DISBURSING, AND ACCOUNTING OFFICIALS OF THE GOVERNMENT; THAT IT WAS THE FINAL ADMINISTRATIVE DECISION ON THE CLASSIFICATION OF THE POSITION, AND THAT IT WAS NOT SUBJECT TO FURTHER APPEAL. THE LETTER ALSO STATED THAT ADMINISTRATIVE PROCEDURES FOR POSSIBLE FURTHER REVIEW INCLUDED SPECIFIED TIME LIMITS. MR. GUST WAS INSTRUCTED TO CONTACT HIS SERVICING PERSONNEL OFFICE IF HE DESIRED FURTHER INFORMATION OR ASSISTANCE.

UPON RECEIPT OF THE OPM CLASSIFICATION APPEAL DECISION, MR. GUST REPORTS THAT HE DISCUSSED THE CLASSIFICATION APPEAL DECISION WITH HIS CIVILIAN PERSONNEL OFFICE AND WAS GIVEN AN OUTDATED (MAY 6, 1968) OPM REGULATION WHICH STATED THERE WERE NO TIME LIMITS IN APPEALING THE DECISION. MR. GUST REQUESTED OPM TO RECONSIDER THE CLASSIFICATION APPEAL DECISION OF THE ATLANTA REGION BY LETTERS DATED MAY 29 AND JUNE 20, 1986.

IN LETTERS ADDRESSED TO MR. GUST DATED JUNE 16 AND JULY 28, 1986, OPM EXPLAINED THAT THE MAY 6, 1968, REGULATION HAD BEEN SUPERSEDED BY FEDERAL PERSONNEL MANUAL (FPM) LETTER 511-9 DATED MARCH 20, 1981. CHAPTER 511, SUBCHAPTER 6-11C, OF THE CURRENT REGULATION REQUIRES THAT A REQUEST FOR RECONSIDERATION OF A CLASSIFICATION APPEAL DECISION BY OPM MUST BE SUBMITTED TO THE APPROPRIATE OPM OFFICIAL NOT LATER THAN 45 CALENDAR DAYS FOLLOWING THE DATE OF THE ORIGINAL DECISION. THE OPM CONCLUDED THAT IRRESPECTIVE OF THE REASONS CITED BY MR. GUST WHICH CAUSED THE DELAY IN PURSUING HIS APPEAL, THE DELAY OF ALMOST 2 YEARS PRECLUDED OPM FROM ACCEPTING HIS REQUEST FOR RECONSIDERATION OF THE CLASSIFICATION APPEAL DECISION BY THE ATLANTA REGIONAL OFFICE.

IN HIS LETTER TO YOU OF AUGUST 21, 1986, MR. GUST EXPRESSES FRUSTRATION ABOUT FURTHER DEALINGS WITH OPM AND REQUESTS YOUR ASSISTANCE IN ACHIEVING HIS GOAL OF A RETROACTIVE RECLASSIFICATION WITH BACKPAY. WE CAN SYMPATHIZE WITH HIS VIEWPOINT, BUT UNFORTUNATELY WE CANNOT REMEDY THE SITUATION HE FINDS HIMSELF IN. THE REASON IS THAT THE AUTHORITY TO CLASSIFY AND TO GRANT APPEALS OF CLASSIFICATION ACTIONS OF POSITIONS UNDER THE GENERAL SCHEDULE IS VESTED BY LAW NOT IN THE GENERAL ACCOUNTING OFFICE, BUT IN THE EMPLOYING AGENCIES AND IN OPM. SEE 5 U.S.C. SECS. 5107 AND 5112 (1982) AND THE IMPLEMENTING REGULATIONS IN PART 511, TITLE 5, CODE OF FEDERAL REGULATIONS, 1982. A CLASSIFICATION APPEAL DECISION MADE BY OPM IS FINAL UNLESS RECONSIDERED BY OPM. THERE IS NO FURTHER RIGHT TO APPEAL. THE DECISION CONSTITUTES A CERTIFICATE WHICH IS MANDATORY AND BINDING ON ALL ADMINISTRATIVE, CERTIFYING, PAYROLL, DISBURSING, AND ACCOUNTING OFFICIALS OF THE FEDERAL GOVERNMENT. 5 U.S.C. SEC. 5112; 5 C.F.R. SEC. 511.612. THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO WAIVE OR MODIFY THE APPLICATION OF THE FOREGOING PROVISIONS OF LAW AND REGULATIONS OR DECISIONS OF OPM RENDERED PURSUANT THERETO.

MOREOVER, WE REGRETFULLY MUST ADVISE THAT, EVEN IF OPM DID RECONSIDER ITS CLASSIFICATION DECISION, IT COULD NOT BE GIVEN RETROACTIVE EFFECT. THE OPM CORRECTLY STATED THAT, IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), THE SUPREME COURT HELD THAT NEITHER THE CLASSIFICATION STATUTES, 5 U.S.C. SECS. 5101-5115 (1982), NOR THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1982), CREATES A SUBSTANTIVE RIGHT TO BACKPAY BY AN EMPLOYEE AGAINST THE UNITED STATES DURING A PERIOD OF CLAIMED WRONGFUL CLASSIFICATION. SEE ALSO ROBERT D. WARREN, B-197474, JUNE 9, 1980.

MR. GUST ALSO REFERS TO FPM BULLETIN NO. 751-2, JULY 21, 1983, IN SUPPORT OF HIS CLAIM FOR RETROACTIVE BENEFITS. THE BULLETIN IN TURN REFERS TO THE SUPREME COURT DECISION IN BUSH V. LUCAS, 462 U.S. 367 (1983). IN THAT DECISION, THE COURT RULED THAT FEDERAL EMPLOYEES CANNOT SUE THEIR SUPERVISORS FOR MONEY DAMAGES WHEN A PERSONNEL ACTION RESULTS IN AN ALLEGED VIOLATION OF CONSTITUTIONAL RIGHTS. THE COURT DID NOT IN ANY WAY MODIFY ITS PRIOR DECISION IN TESTAN AND, HENCE, THE BUSH DECISION DOES NOT HELP MR. GUST.

WE HOPE THAT THIS LETTER ADEQUATELY RESPONDS TO YOUR CONSTITUENT'S QUESTIONS. IF WE MAY BE OF FURTHER HELP, PLEASE LET US KNOW.