B-106791, AUG. 13, 1968

B-106791, AUG. 13, 1968

TO MR. HERBERT A. BORNHOFT:

THIS REFERS TO YOUR LETTER OF APRIL 22, 1968, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR SALARY AND ALLOWANCES ALLEGED TO BE DUE AS A RESULT OF THE TERMINATION OF YOUR APPOINTMENT WITH THE INTERNATIONAL COOPERATION ADMINISTRATION ON NOVEMBER 3, 1961.

THE PERTINENT FACTS OF YOUR CASE WERE SET FORTH IN OUR SETTLEMENT OF APRIL 2, 1964, AND IN OUR DECISION OF MAY 26, 1964, B-106791, AND, THEREFORE, NEED NOT BE REPEATED HERE.

PRIMARILY, YOUR CLAIM IS FOUNDED UPON BREACH OF CONTRACT. IN YOUR LETTER OF APRIL 22 YOU AGAIN ALLEGE THAT THE INTERNATIONAL COOPERATION ADMINISTRATION (NOW THE AGENCY FOR INTERNATIONAL DEVELOPMENT) VIOLATED THE TERMS OF YOUR EMPLOYMENT AGREEMENT BY REDUCING THE SPECIFIED DURATION OF YOUR THIRD TOUR OF DUTY OVERSEAS.

IN OUR DECISION OF MAY 26, 1964, WE THOROUGHLY EXPLAINED THE LEGAL EFFECT OF YOUR EXCEPTED SERVICE APPOINTMENT WITH ICA. WE POINTED OUT THAT SUCH APPOINTMENT COULD HAVE BEEN TERMINATED AT ANY TIME FOR A NUMBER OF LAWFUL REASONS. IN THAT REGARD SEE CHOLLAR V UNITED STATES, 130 CT. CL. 338 AND HIGGINS V UNITED STATES, 133 CT. CL. 960.

ALSO, THE STATEMENT WHICH YOU APPARENTLY SIGNED AGREEING TO REMAIN OVERSEAS FOR A PERIOD OF 24 MONTHS DID NOT CONSTITUTE A CONTRACT ON THE PART OF THE GOVERNMENT TO EMPLOY AND/OR COMPENSATE YOU FOR THE ENTIRE 24- MONTH PERIOD. SUCH AGREEMENT WAS ONLY A STATEMENT OF THE GOVERNMENT'S LIABILITY WITH RESPECT TO YOUR TRAVEL AND TRANSPORTATION EXPENSES. IT IS WELL-ESTABLISHED THAT SUCH AGREEMENTS DO NOT AFFORD GROUNDS FOR A SUIT ON A CONTRACT. SEE DENNING V UNITED STATES, 132 CT. CL. 369, AND CASES CITED THEREIN.

PRIOR TO YOUR APPOINTMENT WITH ICA, EFFECTIVE FEBRUARY 27, 1956, YOU OCCUPIED THE POSITION OF BUDGET ANALYST, GRADE GS-11, STEP 4, $7,035 PER ANNUM WITH THE DEPARTMENT OF THE AIR FORCE. ON MARCH 18, 1962, FOLLOWING THE TERMINATION OF YOUR EMPLOYMENT WITH AID, YOU WERE REINSTATED WITH THE DEPARTMENT OF THE AIR FORCE TO THE POSITION OF BUDGET ANALYST, GRADE GS- 12, STEP 6, $10,255 PER ANNUM. YOUR BASIC SALARY RATE WITH AID IMMEDIATELY PRIOR TO YOUR SEPARATION WAS $12,890 PER ANNUM (FSR 3, STEP 2). YOU CONTEND THAT THE DEPARTMENT OF THE AIR FORCE VIOLATED YOUR REEMPLOYMENT RIGHTS BY NOT PLACING YOU IN A GS GRADE AND SALARY STEP THAT CORRESPONDED TO THE SALARY RATE YOU HAD BEEN RECEIVING WITH AID.

THE RECORD SHOWS THAT YOUR APPOINTMENT TO ICA ON FEBRUARY 27, 1956, WAS MADE UNDER THE AUTHORITY OF SECTION 527 (C) (2) OF THE MUTUAL SECURITY ACT OF 1954, 68 STAT. 857, WHICH PROVIDES AS FOLLOWS:

"/C) FOR THE PURPOSE OF PERFORMING FUNCTIONS UNDER THIS ACT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, THE DIRECTOR MAY---

"/2) UTILIZE SUCH AUTHORITY, INCLUDING AUTHORITY TO APPOINT AND ASSIGN PERSONNEL FOR THE DURATION OF OPERATIONS UNDER THIS ACT, CONTAINED IN THE FOREIGN SERVICE ACT OF 1946, AS AMENDED (22 U.S.C. 801), AS THE PRESIDENT DEEMS NECESSARY TO CARRY OUT FUNCTIONS UNDER THIS ACT. SUCH PROVISIONS OF THE FOREIGN SERVICE ACT AS THE PRESIDENT DEEMS APPROPRIATE SHALL APPLY TO PERSONNEL APPOINTED OR ASSIGNED UNDER THIS PARAGRAPH, INCLUDING, IN ALL CASES, THE PROVISIONS OF SECTIONS 443 AND 528 OF THAT ACT.'

AT THE TIME OF YOUR APPOINTMENT ON FEBRUARY 27, 1956, SECTION 528 OF THE FOREIGN SERVICE ACT OF 1946 (22 U.S.C. 928) REFERRED TO ABOVE PROVIDED AS FOLLOWS:

"UPON THE TERMINATION OF THE ASSIGNMENT OF A RESERVE OFFICER ASSIGNED FROM ANY GOVERNMENT AGENCY, SUCH PERSON SHALL BE ENTITLED TO RINSTATEMENT IN THE GOVERNMENT AGENCY BY WHICH HE IS REGULARLY EMPLOYED IN THE SAME POSITION HE OCCUPIED AT THE TIME OF ASSIGNMENT, OR IN A CORRESPONDING OR HIGHER POSITION. UPON REINSTATEMENT HE SHALL RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENTS HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD HE REMAINED IN THE POSITION IN WHICH HE IS REGULARLY EMPLOYED UNDER SUBSECTION (D) OF SECTION 667 OF TITLE 5, OR ANY CORRESPONDING PROVISION OF LAW APPLICABLE TO THE POSITION IN WHICH HE IS SERVING. A CERTIFICATE OF THE SECRETARY THAT SUCH PERSON HAS MET THE STANDARDS REQUIRED FOR THE EFFICIENT CONDUCT OF THE WORK OF THE FOREIGN SERVICE SHALL SATISFY ANY REQUIREMENTS AS TO THE HOLDING OF MINIMUM RATINGS AS A PREREQUISITE TO THE RECEIPT OF SUCH SALARY ADVANCEMENTS.'

UNDER THE TERMS OF THAT STATUTE YOU WERE ENTITLED TO BE REINSTATED IN THE DEPARTMENT OF THE AIR FORCE IN THE SAME POSITION WHICH YOU HAD OCCUPIED IN FEBRUARY 1956 WHEN YOU WERE ASSIGNED TO ICA OR TO A CORRESPONDING OR HIGHER POSITION. ALSO, YOU WERE ENTITLED TO RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENT AND THE STATUTORY PAY INCREASES TO WHICH YOU WOULD HAVE BEEN ENTITLED HAD YOU REMAINED IN THE GS-11 POSITION WITH THE DEPARTMENT OF THE AIR FORCE. SEE PROSTERMAN V UNITED STATES, 144 CT. CL. 692.

HAD YOU REMAINED IN THE GS-11 POSITION DURING THE TIME YOU ACTUALLY SERVED WITH ICA AND AID IT APPEARS THAT YOU WOULD HAVE BEEN IN THE FIRST LONGEVITY STEP (X) OF GRADE GS-11 ($9,120 PER ANNUM) AT THE TIME OF YOUR RETURN IN MARCH 1962. THEREFORE, UPON YOUR REINSTATEMENT TO THE HIGHER GRADE GS-12 POSITION IN MARCH 1962, THE DEPARTMENT OF THE AIR FORCE WAS REQUIRED TO FIX YOUR SALARY AT A RATE NOT LOWER THAN $9,380 PER ANNUM, TAKING INTO CONSIDERATION THE PROVISIONS OF SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, WHICH WAS IN EFFECT AT THE TIME, 5 U.S.C. 1132 (B), 1958 EDITION. CF. 40 COMP. GEN. 600. SINCE YOUR ADMINISTRATIVE OFFICE ACTUALLY ESTABLISHED YOUR SALARY AT STEP 6 OF GRADE GS-12, WHICH AT THAT TIME WAS $10,255 PER ANNUM, IT IS CLEAR THAT YOUR REEMPLOYMENT RIGHTS WERE NOT VIOLATED.

YOU ALSO CONTEND THAT AS A RESULT OF THE ALLEGED BREACH OF CONTRACT BY THE GOVERNMENT YOU ARE ENTITLED TO BACK PAY FOR THE PERIOD JANUARY 1, 1962, THROUGH MARCH 31, 1968, UNDER THE BACK PAY ACT OF 1966.

SECTION 3 OF THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, 5 U.S.C.5596, AUTHORIZES BACK PAY, LEAVE BENEFITS, ETC., FOR EMPLOYEES WHO, UPON ADMINISTRATIVE DETERMINATION OR TIMELY APPEAL, ARE FOUND TO HAVE UNDERGONE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS WHICH HAVE RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF SUCH EMPLOYEES.

IN THE ABSENCE OF A FINDING BY PROPER AUTHORITY THAT AN EMPLOYEE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, OUR OFFICE HAS NO LEGAL BASIS TO ENTERTAIN A CLAIM FOR BACK PAY UNDER THE CITED STATUTE. SUCH A FINDING CANNOT BE MADE BY THIS OFFICE. RATHER, SUCH MATTER IS FOR THE CONSIDERATION OF THE EMPLOYING ACTIVITY CONCERNED OR THE UNITED STATES CIVIL SERVICE COMMISSION.

IN VIEW OF THE ABOVE WE TRUST THAT YOU WILL UNDERSTAND THAT UPON THE PRESENT RECORD OUR OFFICE IS WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM FOR BACK PAY.