Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I was a GS-13 and accepted a promotion in August 2006 to NH-04 under the Acquisition Demo civilian management system. NH-04 was a pay band of GS-14 through GS-15. Later on, I was put into the NSPS as a YA-03 which had the same pay band as a NH-04. The primary reason I accepted the promotion and the job was because of the chance to earn up to GS-15 Step 10 pay, which is what my management was saying. I never would have taken the job at just the GS-14 pay level because I didn’t consider the position worth it. When NSPS went away I was placed in the GS system as a GS-14 Step 10. Now that I am a GS-14 I feel my earning power has been significantly reduced. Do I have any recourse with the government?
A:
If your Civilian Acquisition Workforce Personnel Demonstration Project position was converted to the National Security Personnel System, I’m curious to know why your position wasn’t converted back when NSPS was rolled back. Assuming, however, that your conversion from NSPS to the General Schedule pay system was appropriate, it seems you are without recourse.
The regulations for converting positions from NSPS pay bands to GS grades are contained in 5 C.F.R. § 9901.372. Before an employee converts from NSPS, a “virtual GS grade” is assigned, which is then used to set the employee’s pay under the GS system. As you were in a NSPS pay band which encompassed more than one GS grade, 14 and 15, the government would have compared your adjusted salary to the Step 4 rate of the highest applicable GS grade encompassed within the band. Because your adjusted GS-14, Step 10 equivalent salary was lower than the GS-15, Step 4 rate, you were assigned a GS-14 virtual grade and consequently placed into a GS-14, Step 10 position.
Had you converted from Acquisition Demo, which also uses pay bands, to the one-grade-at-a-time GS pay system, the result would have been the same. Government regulations do not require employees be placed into GS positions with the same promotion potential they had within the pay band system from which they converted.
In its only two precedential opinions involving the NSPS to GS conversion, the MSPB found federal employees were demoted with insufficient due process when their positions were converted from NSPS to GS at lower grades than when they entered NSPS. In Arrington v. Dep’t of the Navy, 117 M.S.P.R. 301 (2012), the MSPB found that despite his increase in actual pay, the employee suffered a reduction in grade without sufficient due process when the employee’s GS-14 position, at the time of conversion to NSPS, was converted to GS-13, Step 10 following the NSPS repeal. The MSPB found similarly in Miller v. Dep’t of the Navy, 117 M.S.P.R. 393 (2012), where an employee’s GS-12 position was converted back from NSPS as a GS-11. These cases are distinguishable from yours, however, because they dealt with actual reductions in grade, whereas yours is the loss of promotion potential within your position.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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