B-124703, JAN. 24, 1956

B-124703, JAN. 24, 1956

TO MR. HAROLD F. WHITTINGTON:

YOUR LETTER OF JUNE 2, 1955, REQUESTS A REVIEW OF OUR SETTLEMENT OF MAY 9, 1955, WHICH DISALLOWED, FOR THE REASONS STATED THEREIN, YOUR CLAIM FOR AN AMOUNT ALLEGED TO BE DUE YOU REPRESENTING THE DIFFERENCE BETWEEN THE SALARY RATE YOU RECEIVED AS AN AUDITOR, GRADE GS-7, AND THE RATE PRESCRIBED FOR A GRADE GS-9 POSITION DURING THE PERIOD JANUARY 15, 1954, THROUGH AUGUST 27, 1954, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

IN YOUR REQUEST FOR REVIEW YOU QUESTION THE COMPLETENESS AND CORRECTNESS OF THE FACTS RELIED UPON IN OUR SETTLEMENT FOR THE DISALLOWANCES OF YOUR CLAIM AND APPARENTLY CHALLENGE THE AUTHORITY OF THE ACTING OPERATIONS OFFICER, MAJOR DEAUX, TO MODIFY THE POSITION SURVEY LIST WHICH PROPOSED YOUR PROMOTION TO GRADE GS-9 AFTER IT HAD BEEN SIGNED BY COLONEL ASHWORTH; THE LEGALITY OF MAJOR DEAUX'S ACTION IN DETAILING INSTEAD OF PROMOTING YOU TO THE GRADE GS-9 POSITION AND THE LEGALITY OF THE METHODS USED BY HIM IN DETERMINING YOUR QUALIFICATIONS FOR THAT POSITION.

IN VIEW OF THE STATEMENTS IN YOUR LETTER A SUPPLEMENTAL REPORT RELATING TO THE FACTS IN YOUR CASE HAS BEEN OBTAINED FROM THE DEPARTMENT OF THE ARMY WHICH, IN PERTINENT PART, READS AS FOLLOWS:

"1. WITH REFERENCE TO THE CLAIM OF MR. HAROLD F. WHITTINGTON, THE CONTENTIONS WHICH MR. WHITTINGTON MAKES APPEAR TO BE BASED ON HIS INTERPRETATIONS OF DEPARTMENT OF ARMY REGULATIONS PERTINENT TO HIS CASE. AN OUTLINE OF THE EVENTS AS DETERMINED FROM RECORDS NOW AVAILABLE TO THIS HEADQUARTERS, WITH AUTHORITY USED FOR ACTIONS EFFECTED, FOLLOWS:

"A. CLAIMANT WAS APPOINTED BY EXCEPTED APPOINTMENT UNDER AUTHORITY OF SCHEDULE A, PARAGRAPH 6.105 (A) (3) AS MILITARY AUDITOR GS-511-7 (1) AT $5,256.25 PER ANNUM INCLUDING THE 25 PERCENT DIFFERENTIAL IN THIS HEADQUARTERS EFFECTIVE 18 JUNE 1952.

"B. A SALARY AND WAGE SURVEY OF THE ARMY AUDIT AGENCY THIS COMMAND, WAS COMPLETED 17 DECEMBER 1953. A POSITION SURVEY LIST WAS PREPARED REFLECTING A CHANGE IN THE POSITION OCCUPIED BY CLAIMANT FROM POSITION NO. 545, GS-511-7 TO POSITION NO. 7250, GS-510-9. THIS SURVEY WAS MADE IN ACCORDANCE WITH DEPARTMENT OF ARMY CIVILIAN PERSONNEL REGULATION P2.

"C. THE POSITION SURVEY LIST WAS SIGNED BY THE RESPONSIBLE OPERATING OFFICIAL, COLONEL T. D. ASHWORTH AND RETURNED TO THE CIVILIAN PERSONNEL OFFICER FOR IMPLEMENTATION OF THE SALARY AND WAGE SURVEY. HOWEVER, A REVIEW OF THE SURVEY LIST SHOWS THAT THE OPERATING OFFICIAL HAS PLACED AN "X" IN THE LAST COLUMN OF THIS LIST INDICATING NONCONCURRENCE WITH THE ACTION PROPOSED TO PROMOTE THE INCUMBENT, AND A STANDARD FORM 52, (REQUEST FOR PERSONNEL ACTION) WAS SUBMITTED REQUESTING THAT MR. WHITTINGTON BE DETAILED TO THE DUTIES OF POSITION NO. 7250, GS-510-9, FOR A PERIOD NOT TO EXCEED NINETY (90) DAYS. THE STANDARD FORM 52 CONTAINED THE FOLLOWING REMARK: "DETAIL TO NEW POSITION FOR NINETY (90) DAYS PENDING RECEIPT OF GRADED STANDARD FORM 57 FROM BOARD OF LIMITED STATES CIVIL SERVICE EXAMINERS, DEPARTMENT OF ARMY, WASHINGTON.' THE DETAIL WAS AFFECTED IN ACCORDANCE WITH DEPARTMENT OF ARMY CIVILIAN PERSONNEL REGULATION D2.1-6.

"D. THE DEPARTMENT OF ARMY ADVISED THIS HEADQUARTERS BY DA MESSAGE NO. 488132, 10 FEBRUARY 1954, THAT MR. WHITTINGTON HAD BEEN RATED "INELIGIBLE" BY THE UNITED STATES CIVIL SERVICE BOARD OF EXAMINERS UNDER ANNOUNCEMENT NUMBER 345.

"E. MR. WHITTINGTON'S DETAIL WAS CANCELLED 17 MARCH 1954 AND HE WAS RETURNED TO HIS OFFICIAL POSITION NO. 545, MILITARY AUDITOR, GS-511 7.

"F. MR. WHITTINGTON SUBMITTED A RESIGNATION 5 MAY 1954 TO BE EFFECTIVE ON OR ABOUT 18 JULY 1954 "SUBJECT TO PCS TRAVEL TO PATUXENT, MARYLAND VIA AIR.' HIS RESIGNATION WAS MADE EFFECTIVE 20 JULY 1954. HIS STATED REASON FOR RESIGNATION WAS "LACK OF UTILIZATION OF MY SERVICES TO MAXIMUM DEGREE. LACK OF PROMOTIONAL OPPORTUNITIES.'

"2. THE CLAIMANT HAS CONTENDED THAT THE POSITION WAS NOT ELIMINATED. THE POSITION WAS NOT ACTUALLY ELIMINATED, BUT NEVER ESTABLISHED, ACCORDING TO RECORDS OF THIS HEADQUARTERS BY THE ACTION OUTLINED ABOVE; SPECIFICALLY, BY ELIMINATION FROM THE SURVEY LIST AND RETAINING POSITION NO. 545 TO WHICH THE CLAIMANT WAS OFFICIALLY ASSIGNED. ONE POSITION NO. 7250, AUDITOR GS-510-9, WAS ESTABLISHED BY SALARY AND WAGE SURVEY.

"3. THE APPOINTING AUTHORITY, THE CIVILIAN PERSONNEL OFFICER, THIS HEADQUARTERS, IS RESPONSIBLE FOR DETERMINING THE QUALIFICATIONS OF EMPLOYEES WHO ARE SERVICING IN THE EXCEPTED SERVICE, AFFECTED BY NONCOMPETITIVE ACTIONS. THE DEPARTMENT OF ARMY CIVILIAN PERSONNEL REGULATION THEN IN EFFECT, CPRN 1.2-4A, PROVIDES THAT "THE NOMINEE MUST MEET THE EXPERIENCE AND TRAINING STANDARDS PRESCRIBED BY THE CIVIL SERVICE COMMISSION FOR THE PARTICULAR JOB TO BE LLED.' THE STANDARDS APPLIED IN THE CLAIMANTS CASE WERE APPLIED TO ALL INCUMBENTS OF SIMILAR JOBS IN THIS COMMAND.

"4. WITH REFERENCE TO THE TWELFTH PARAGRAPH OF CLAIMANTS LETTER, THERE IS NO RECORD AVAILABLE OF HIS HAVING BEEN QUALIFIED FOR THE POSITION BY OTHER U.S. CIVIL SERVICE BOARDS. THERE IS A COPY OF AN UNSIGNED LETTER IN CLAIMANT'S OFFICIAL PERSONNEL FOLDER FROM THE U.S. CIVIL SERVICE COMMISSION, FILE DXS:MEC:WCT, DATED 20 JULY 1954 ADDRESSED TO MR. WHITTINGTON WHICH HE FORWARDED TO THIS HEADQUARTERS 10 AUGUST 1954 STATING THAT HIS APPLICATION HAD BEEN REVIEWED AND THAT HE WAS RATED ELIGIBLE AS AUDITOR (INTERNAL AUDITS), GS-9. THIS WAS RECEIVED SUBSEQUENT TO CLAIMANTS DEPARTURE FROM THE COMMAND AND EFFECTIVE DATE OF HIS RESIGNATION. A COPY OF THIS LETTER IS INCLOSED.

"5. THE THIRTEENTH PARAGRAPH OF CLAIMANTS LETTER HAS BEEN ANSWERED IN PARAGRAPH 2, ABOVE.

"6. THE CLAIMANT CONTENDS THAT THE SERIES CODE NUMBER USED IN ESTABLISHING THE JOB WAS IN ERROR. THIS CONTENTION IS CORRECT SINCE SERIES CODE GS-511-0 WAS DELETED AND COMBINED WITH THE GENERAL SERIES GS- 510-0.'

THE FACTUAL STATEMENT ABOVE QUOTED IS PREDICATED UPON THE OFFICIAL RECORD IN YOUR CASE AND MUST BE ACCEPTED BY US AS A BASIS FOR DETERMINING THE LEGALITY OF YOUR CLAIM UNLESS IT IS ESTABLISHED BY CONCLUSIVE EVIDENCE THAT THE OFFICIAL RECORD DOES NOT REPRESENT THE FACTS.

IN THAT REGARD THE RECORD FAILS TO DISCLOSE THAT THE ALLEGED CHANGE ON A POSITION SURVEY LIST STATED BY YOU TO HAVE BEEN MADE BY MAJOR DEAUX WAS MADE BY ANYONE OTHER THAN COLONEL ASHWORTH. HOWEVER, WHETHER THE CHANGE WAS MADE BY MAJOR DEAUX OR COLONEL ASHWORTH IS NOT MATERIAL TO THE ULTIMATE DETERMINATION OF YOUR RIGHTS IN THE CASE. A POSITION SURVEY LIST IS AN ADMINISTRATIVE DOCUMENT EVIDENCING AGREEMENT OF OPINION BETWEEN OPERATING OFFICIALS AND PERSONNEL OFFICERS AS TO THE EVALUATION OF POSITIONS AND THE QUALIFICATIONS OF EMPLOYEES CONCERNED. IT VESTS NO RIGHTS IN EMPLOYEES UNLESS OR UNTIL IT IS IMPLEMENTED BY PERSONNEL ACTIONS PLACING THE RECOMMENDATIONS RESULTING FROM A POSITION SURVEY INTO EFFECT. UNTIL SO CARRIED INTO EFFECT, THE LIST MAY BE MODIFIED BY RESPONSIBLE OFFICERS AND IF THE CHANGE WAS MADE BY MAJOR DEAUX IN YOUR CASE IT CANNOT BE SAID THAT HE WAS NOT THE RESPONSIBLE OFFICER AFTER THE DEPARTURE OF COLONEL ASHWORTH. THERE IS NO EVIDENCE THAT THE ACTION TAKEN BY HIM WAS NOT CONCURRED IN BY THE PERSONNEL OFFICER OR THAT THE REQUIREMENTS OF CIVILIAN PERSONNEL REGULATIONS P.2-6A (1) (B) WERE NOT FULLY COMPLIED WITH.

REGARDING THE LEGALITY OF THE "DETAIL" ACTION TAKEN IN YOUR CASE CIVILIAN PERSONNEL REGULATIONS B.1-6C (2) PROVIDES AS FOLLOWS:

"/2)DETAILS WILL NOT BE USED TO FILL POSITIONS THAT SHOULD BE FILLED BY A BONA FIDE PERSONNEL ACTION (APPOINTMENT OR POSITION CHANGE) AS, FOR EXAMPLE, IN THE CASE OF AN EMPLOYEE WHO IS SELECTED TO FILL A CONTINUING POSITION WHERE THERE IS NO QUESTION THAT HE IS FULLY QUALIFIED AND FIT FOR THE JOB.'

THERE APPEARS TO BE NO ROOM FOR DOUBT ON THE BASIS OF THE RECORD THAT THERE WAS A QUESTION IN THE MIND OF THE RESPONSIBLE OFFICER CONCERNING YOUR QUALIFICATIONS FOR THE GRADE GS-9 POSITION WHICH HE APPARENTLY FELT MUST BE RESOLVED BEFORE PROMOTING YOU TO THAT POSITION AND FROM THE REGULATION JUST QUOTED IT IS CLEAR THAT A "DETAIL" ACTION WAS AUTHORIZED IN THE CIRCUMSTANCES.

YOUR STATEMENT THAT THE UNITED STATES CIVIL SERVICE COMMISSION WAS WITHOUT AUTHORITY TO DETERMINE YOUR QUALIFICATIONS FOR EMPLOYMENT IN AN EXCEPTED POSITION APPEARS TO BE CORRECT. HOWEVER, AS CIVILIAN PERSONNEL REGULATION N.2-4 (C), IN EFFECT AT THE TIME OF YOUR EMPLOYMENT, PROVIDED THAT NOMINEES FOR EXCEPTED POSITIONS MUST MEET THE EXPERIENCE AND TRAINING STANDARDS PRESCRIBED BY THE CIVIL SERVICE COMMISSION FOR THE PARTICULAR POSITION TO BE FILLED, WE FIND NO BASIS FOR CHALLENGING THE RIGHT OF THE RESPONSIBLE INSTALLATION OFFICER TO SEEK AN ADVISORY OPINION BY REQUIRING A STANDARD FORM 57, GRADED BY THE BOARD OF UNITED STATES CIVIL SERVICE EXAMINERS, TO AID HIM IN DETERMINING YOUR QUALIFICATIONS. THE FACT THAT THE BOARD'S RATING OF ,INELIGIBLE" SUBSEQUENTLY WAS RATED "ELIGIBLE" BY THE CIVIL SERVICE COMMISSION UPON YOUR REQUEST FOR REVIEW WOULD HAVE NO BEARING ON YOUR CLAIM SINCE YOUR RESIGNATION HAD IN THE MEANTIME BEEN TENDERED AND ACCEPTED AND THE CIVIL SERVICE COMMISSION, AS POINTED OUT BY YOU, WAS WITHOUT JURISDICTION TO MODIFY THE DETERMINATION OF THE INSTALLATION OFFICER. IN THE LIGHT OF WHAT HAS BEEN SAID THE RESOLUTION OF YOUR QUESTION CONCERNING THE APPLICABILITY OF ANNOUNCEMENT NO. 345 TO YOUR POSITION IN THE CARIBBEAN COMMAND WOULD APPEAR TO BE UNNECESSARY SINCE IT WOULD NOT BE CONTROLLING AS TO YOUR RIGHT TO GRADE GS-9 COMPENSATION DURING THE PERIOD INVOLVED. THE OTHER POINTS RAISED BY YOUR LETTER APPEAR TO BE ADEQUATELY ANSWERED BY THE ABOVE-QUOTED REPORT.

ON THE BASIS OF THE FACTS OF RECORD AS OUTLINED ABOVE, THE DISALLOWANCE OF YOUR CLAIM BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF MAY 9, 1955, WAS CORRECT AND UPON REVIEW IT MUST BE AND IS SUSTAINED.

IN RESPONSE TO THE QUESTION CONTAINED IN THE LAST PARAGRAPH OF YOUR LETTER YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO PROCEDURE PRESCRIBED FOR APPEALING FROM SUCH DECISIONS. HOWEVER, YOUR ATTENTION IS CALLED TO THE PROVISIONS OF 28 U.S.C. 1436; ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.

YOUR CLAIM CONCERNING TRAVEL EXPENSES INCURRED INCIDENT TO YOUR TRANSPORTATION FROM THE CANAL ZONE TO THE UNITED STATES IS RECEIVING CONSIDERATION AND YOU WILL BE INFORMED OF THE ACTION TAKEN THEREON AT AN EARLY DATE.