B-180144, SEP 3, 1974

B-180144, SEP 3, 1974

WHERE CIVILIAN EMPLOYEE OF OFFICE OF CORPS OF ENGINEERS, DEPARTMENT OF ARMY, APPEALS CLASSIFICATION AS ENGINEERING EQUIPMENT OPERATOR, WG 5716-04 TO CIVIL SERVICE COMMISSION (CSC) AND POSITION IS RECLASSIFIED BY CSC TO WG-6 LEVEL, WITH EFFECTIVE DATE COMPUTED FROM DATE EMPLOYEE FILED APPLICATION WITH AGENCY, THERE IS NO AUTHORITY TO MAKE SALARY RATE RETROACTIVELY EFFECTIVE BEYOND SUCH DATE SINCE FEDERAL EMPLOYEES ARE ENTITLED ONLY TO SALARIES OF POSITIONS TO WHICH ACTUALLY APPOINTED REGARDLESS OF DUTIES PERFORMED.

RECLASSIFICATION OF POSITION - ENTITLEMENT TO RETROACTIVE SALARY:

THIS IS IN RESPONSE TO A REQUEST BY MR. JAMES H. MARSHBURN, A RETIRED CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY FOR RECONSIDERATION OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IN ALLOWING HIM ADDITIONAL COMPENSATION ONLY FOR THE PERIOD MARCH 28 THROUGH JULY 17, 1971, INCIDENT TO THE RECLASSIFICATION OF THE POSITION OCCUPIED BY HIM TO A HIGHER GRADE.

THE RECORD SHOWS THAT THE CLAIMANT WAS PROMOTED TO WG-5716-4 ON SEPTEMBER 6, 1964. PRIOR TO MARCH 23, 1971, HE MADE AN INFORMAL ORAL COMPLAINT FOR RECLASSIFICATION OF HIS POSITION TO WG-5716-6. ON MARCH 23, 1971, MR. MARSHBURN SUBMITTED A FORMAL WRITTEN COMPLAINT TO HIS BRANCH CHIEF, STATING THAT HE PERFORMED THE SAME DUTIES AS THE ENGINEERING EQUIPMENT OPERATOR LEADER, WL-6, AND THE ENGINEERING EQUIPMENT OPERATOR WG-6. HIS CLAIM WAS DENIED BY THE CORPS OF ENGINEERS, BALTIMORE DISTRICT, AND SUCH DECISION WAS SUSTAINED BY THE OFFICE OF THE CHIEF OF ENGINEERS AND HEADQUARTERS, DEPARTMENT OF THE ARMY. THE EMPLOYEE THEN APPEALED HIS CLASSIFICATION TO THE CIVIL SERVICE COMMISSION (CSC), WHICH BY LETTER DATED AUGUST 31, 1972, ADVISED THE DEPARTMENT OF THE ARMY THAT ON THE BASIS OF ITS EVALUATION OF THE DUTIES AND RESPONSIBILITIES ASSIGNED THE POSITION OCCUPIED BY THE CLAIMANT, SUCH POSITION SHOULD BE CLASSIFIED AS ENGINEERING EQUIPMENT OPERATOR, WG-5716-6. THE CSC FURTHER STATED THAT AN EFFECTIVE DATE FOR RECLASSIFICATION OF THE POSITION WAS TO OCCUR NO LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGAN AFTER THE 60TH DAY FROM THE DATE THE APPLICATION WAS FILED WITH THE AGENCY. THE PROMOTION WAS EFFECTED AT THE BEGINNING OF THE FIRST PAY PERIOD (MARCH 28, 1971) AFTER MARCH 23, 1971, THE LATTER BEING THE DATE THE EMPLOYEE FILED HIS FORMAL WRITTEN COMPLAINT WITH HIS BRANCH CHIEF. IT IS THE CONTENTION OF MR. MARSHBURN THAT THE EFFECTIVE DATE OF HIS PROMOTION TO THE WG-6 LEVEL SHOULD HAVE BEEN SEPTEMBER 6, 1964, THE DATE HE WAS PROMOTED TO THE WG-4 LEVEL.

SECTION 532.702(B)(11) OF TITLE 5, CODE OF FEDERAL REGULATIONS, PROMULGATED UNDER THE AUTHORITY OF 5 U.S.C. 5115 (1970) IN EFFECT AT THE TIME OF THE RECLASSIFICATION, PROVIDED:

"(11) THE EFFECTIVE DATE OF A CHANGE IN THE CLASSIFICATION OF A POSITION SHALL BE SPECIFIED IN THE AGENCY DECISION AND, UNLESS OTHERWISE REQUIRED BY THIS SUBPART, MAY NOT BE EARLIER THAN THE DATE OF THE DECISION BUT IN NO CASE MAY IT BE LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 60TH DAY FROM THE DATE THE APPLICATION WAS FILED. HOWEVER, WHEN THE AGENCY DECISION WILL RESULT IN A DOWNGRADING OR OTHER CLASSIFICATION ACTION THAT WILL REDUCE THE PAY OF THE INCUMBENT OF THE POSITION, THE EFFECTIVE DATE MAY NOT BE EARLIER THAN THE TIME REQUIRED TO EFFECT THE DECISION IN ACCORDANCE WITH PROCEDURES REQUIRED BY APPLICABLE LAW AND REGULATION."

SECTION 532.703(D) STATES AS FOLLOWS:

"(D) THE COMMISSION SHALL NOTIFY THE EMPLOYEE AND THE AGENCY IN WRITING OF ITS DECISION."

THE ABOVE REGULATION PROVIDED THAT WHEN A POSITION IS RECLASSIFIED THE EFFECTIVE DATE OF THE CHANGE OF THE CLASSIFICATION MAY NOT BE EARLIER THAN THE DATE OF THE DECISION NOR LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 60TH DAY FROM THE DATE THE APPLICATION WAS FILED.

IN THE INSTANT CASE, SINCE MR. MARSHBURN WAS NOT APPOINTED (PROMOTED) TO THE WG-6 LEVEL UNTIL MARCH 28, 1971, HE DID NOT BECOME ENTITLED TO THE HIGHER SALARY FOR ANY PERIOD PRIOR THERETO, NOTWITHSTANDING THE FACT THAT HE MAY HAVE PERFORMED THE DUTIES OF AND WAS OTHERWISE QUALIFIED FOR THE WG -6 POSITION IN THE INTERIM. IT HAS LONG BEEN THE RULE OF THIS OFFICE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. 40 COMP. GEN. 207 (1960); 39 ID. 583 (1960).

IT IS ALSO AN ESTABLISHED RULE THAT EMPLOYEES OF THE FEDERAL GOVERNMENT ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE ACTUALLY APPOINTED REGARDLESS OF THE DUTIES THEY PERFORM. WHEN AN EMPLOYEE PERFORMS DUTIES AT A GRADE LEVEL HIGHER THAN THAT IN WHICH HIS POSITION IS CLASSIFIED AND IS SUCCESSFUL IN OBTAINING RECLASSIFICATION OF HIS POSITION AND PROMOTION, NO ENTITLEMENT EXISTS FOR COMPENSATION AT THE HIGH GRADE LEVEL PRIOR TO THE DATE THE NECESSARY ADMINISTRATIVE ACTIONS ARE TAKEN TO EFFECT THE PROMOTION. DIANISH V. UNITED STATES, 183 CT. CL. 702 (1968); COLEMAN V. UNITED STATES, 100 CT. CL. 41 (1943); 52 COMP. GEN. 631 (1973); AND B-170500, OCTOBER 29, 1970.

FOR THE FOREGOING REASONS WE MUST SUSTAIN THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN ALLOWING ADDITIONAL COMPENSATION ONLY FOR THE PERIOD MARCH 28 THROUGH JULY 17, 1971.