U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Dear [name]:

This is in response to a question in the agency administrative report, submitted for the claim of [claimant], Claim Number 02-0002. Within the report, you provided a copy of an August 13, 2001, letter to [claimant], which states that your office does not have the authority to deny a claim for back pay. We previously discussed this when the Office of Personnel Management (OPM) first received [claimant's] claim. In your October 29, 2001, response to the claim, you ask that we advise or recommend a better way to handle future compensation claims.

Part 178 of Title 5, Code of Federal Regulations concerns the adjudication and settlement of claims for compensation and leave. Section 178.102 describes the procedures for submitting claims as well as the documentation that should accompany a claim. Paragraph (a)(3) of section 178.102 specifies that this documentation should include a copy of the denial of the claim. Therefore, paragraph (a)(3) contemplates that an employing agency already has reviewed, and issued an initial decision on, a claim before it is submitted to OPM for adjudication.

Based on the information that you have provided, we concur that an agency does not have the authority to grant an employee's request for compensation, when it conflicts with regulation. However, it is inappropriate to say that an agency does not have the authority to deny a claim. Within the regulations, agencies must deny a claim before OPM can adjudicate it. In that same vein, if an agency reviews a claim and finds appropriate legal authority for granting the claim, the agency may use its discretion to do so. Even though your office, the [agency's personnel office], may provide advisory services to managers, someone at the agency level must have the authority to review a claim and decide whether it can be granted or denied. This provides the claimant an additional avenue of resolution in the adjudicative process.

We are enclosing our decision on [claimant's] claim. If you have further questions, please call me on (202) 606-2530 or Ms. Deborah McKissick on (202) 606-1812.

Sincerely,

Melissa A. Drummond
Program Manager

Enclosure

Matter of: [claimant]

Date: November 29, 2001

File Number: 02-0002

OPM Contact: Deborah Y. McKissick

The claimant is an employee of the [agency]. The claimant filed claims for compensation for back pay for a temporary appointment. We acknowledged receipt of the claim on October 18, 2001. The agency provided information on October 30, 2001. For the reasons stated below, we do not have jurisdiction to consider this claim.

Based on the information provided by the agency, the claimant was a member of a collective bargaining unit represented by the American Federation of Government Employees, Local 1808, during the time of the claim. Moreover, according Article XII of the collective bargaining agreement that covers the claimant, this matter was not excluded from negotiated grievance procedures under the agency's collective bargaining agreement.

The Office of Personnel Management (OPM) cannot take jurisdiction over the claim of Federal employees that are or were subject to a negotiated grievance procedure under a collective bargaining agreement between the employees' agency and labor union, unless that matter is or was specifically excluded from the agreement's grievance procedure. This is because the courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1452, 1454-55 (Fed. Cir. 1990) (en banc), cert. Denied, 498 U.S. 811 (1990), construing therein the provision in the Civil Service Reform Act codified at 5 U.S.C. § 7121(a). That Act mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements. Accord, Paul D. Bills, et al., B260475 (June 13, 1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992). According, OPM cannot assert jurisdiction over, or issue a decision concerning, this matter.

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.

DISTRIBUTION

[claimant's name and address]

[agency representative's name and address]

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