Be Careful in Asking for a Classification Review

This VA employee thought he should be paid at a higher grade level; OPM disagreed.

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 (Benn v. Merit Systems Protection Board, C.A.F.C. No. 2008-3357 (nonprecedential), 4/2/09)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)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.