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Be Careful in Asking for a Classification Review

By Susan Smith

Thursday, April 9, 2009

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

A recent court case illustrates the pitfalls of pursuing position classification appeals within the federal government. (Benn v. Merit Systems Protection Board, C.A.F.C. No. 2008-3357 (nonprecedential), 4/2/09)

Benn, a GS-6 Supply Technician at Department of Veterans Affairs in Cincinnati, Ohio, believed his job should be at the GS-7 level. VA denied Benn's request to reclassify his job upward. So, as was his right, Benn appealed the agency's classification decision to the Office of Personnel Management. OPM looked at it and determined that Benn's position was not in fact at the GS-6 level—rather, he should be classified at the GS-5 level. The agency followed the process to downgrade Benn to lower level with grade and pay retention for 2 years. (Opinion pp. 1-2)

Five months after the grade retention period expired, or about 29 months later, Benn appealed to the Merit Systems Protection Board. He argued that the agency had reduced him in grade because it had failed to give him priority placement into a higher graded position over the previous 29 months. The Board's Administrative Judge gave Benn a chance to explain why the MSPB had jurisdiction over his appeal. Benn admitted that his appeal "may not ‘directly' seem to fall within MSPB jurisdiction…" (p. 2)

The AJ dismissed Benn's appeal for lack of jurisdiction and the full Board declined to review. (p. 2)

Benn was equally unsuccessful with the federal appeals court, which has now affirmed the MSPB. As the court notes, "It is clear that the Board does not have jurisdiction over classification appeals, which are within the province of OPM and only appealable to that entity…" (p. 4)
 

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Readers' Comments

  • That's going to be affect any other department, or just Supply tech. I know for fact so many worker do not disserve to be in a higher grade but just because had a supervisor; know how to manipoulaid the system, that worker get it a promotion with out education just train at work....
    Posted: May 1, 2009 5:42 AM
  • I don't know how familiar you are with classification publications, but two of the most important - the Intro to the Class Standards & the Classifier's Handbook - were issued in August, 1991. You are right, however, that many individual series standards are too old. Although I don't often defend OPM...
    Posted: April 15, 2009 12:43 PM
  • Grades are based on complexity, not quantity or for that matter, quality....
    Posted: April 14, 2009 8:35 AM

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