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Pay & Leave Claim Decisions

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Office of the General Counsel

S009220

Dear Mr.[xxx]:

We refer to your request that we review your claim for backpay. We have completed our review of this claim and have determined that it may not allowed.

The record shows that on May 5, 1991, you were hired to fill the position of GS-13 AH-1 Instructor Pilot. Because you did not have the required 500 hours of instructor pilot time you were hired as a GS-9. Upon acceptance of the position, you were advised that as soon as you met the flight time requirement you would be promoted to the GS-13 level. However, after meeting the required 500 hours of instructor pilot time, you were informed that a mistake had been made in telling you that you would be upgraded to GS-13 at that time. Eventually, your position was reclassified to the GS-13 level. You are claiming backpay for the difference between the GS-9 rate that you were paid before your position was reclassified in 1994.

As a general rule 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. Delays in reclassifying a position to a higher grade do not provide a basis for backpay. B-245737, November 25, 1991.

The Back Pay Act specifically provides that its provisions do not apply to any reclassification action. Also, the Supreme Court of the United States has held that neither the Classification Act, 5 U.S.C. 5101-5115 (1988), nor the Back Pay Act, 5 U.S.C. 5596 (1988), create a substantive right to backpay for periods of wrongful position classification actions.

The file indicates that you were promoted to the GS-13 level, effective September 18, 1994. Not until that time would you be entitled to the salary commensurate with that position. Accordingly, your claim is denied.

Sincerely,

Joann Charleston

Adjudicator

cc: [agency]

Control Panel