B-196695, APRIL 14, 1980, 59 COMP.GEN. 384

B-196695, APRIL 14, 1980, 59 COMP.GEN. 384

ENERGY - ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION - EMPLOYEES - AGENCY EXCEPTED FROM COMPETITIVE SERVICES AND GENERAL SCHEDULE - EFFECT - EXTENDED DETAILS EMPLOYEE OF ATOMIC ENERGY COMMISSION (AEC) AND ITS SUCCESSOR, ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION (ERDA), APPEALS DISALLOWANCE OF CLAIM BASED ON TURNER-CALDWELL DECISIONS FOR RETROACTIVE PROMOTION AND BACK PAY. CLAIM IS DENIED AS AEC AND ERDA, THE EMPLOYING AGENCIES, WERE EXCEPTED FROM COMPETITION SERVICE AS WELL AS FROM GENERAL SCHEDULE AND THUS WERE NOT SUBJECT TO THE DETAIL PROVISIONS OF SUBCHAPTER 8, CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL. FOR THIS REASON AND BECAUSE AEC AND ERDA DID NOT HAVE A NONDISCRETIONARY AGENCY POLICY LIMITING DETAILS OR REQUIRING TEMPORARY PROMOTION AFTER A SPECIFIED PERIOD OF DETAIL, THE REMEDY OF RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY IS NOT AVAILABLE.

MATTER OF: JEREMIAS ARCHULETA - RETROACTIVE PROMOTION UNDER TURNER CALDWELL FOR ERDA (AEC) EMPLOYEES, APRIL 14, 1980:

IN A LETTER DATED SEPTEMBER 13, 1979, MR. JEREMIAS ARCHULETA REQUESTED RECONSIDERATION OF CERTIFICATE OF SETTLEMENT NO. Z-2815159, ISSUED JULY 31, 1979, WHICH DENIED HIS CLAIM FOR A RETROACTIVE PROMOTION AND BACK PAY BASED ON OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539(1975) AND 56 ID. 427(1977). WE HAVE CONSIDERED HIS LETTER TO CONSTITUTE AN APPEAL OF THAT ACTION, AND THIS DECISION IS THE RESULT OF THAT APPEAL.

THE RECORD SHOWS THAT MR. ARCHULETA, A GG-6 SECURITY INSPECTOR AT THE ATOMIC ENERGY COMMISSION (AEC) IN LOS ALAMOS, NEW MEXICO, WAS ASSIGNED THE DUTIES OF OPERATIONS SERGEANT, A GG-7 POSITION, ON JULY 19, 1973. THIS ASSIGNMENT CONTINUED UNTIL AUGUST 31, 1975, WHEN MR. ARCHULETA WAS PROMOTED TO A GG-7 POSITION. ON JANUARY 19, 1975, WHILE ASSIGNED TO THE GG-7 POSITION, MR. ARCHULETA BECAME AN EMPLOYEE OF THE ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION (ERDA), A RESULT OF THE ENERGY REORGANIZATION ACT OF 1974, PUBLIC LAW 93-438, 42 U.S.C. 5801 NOTE. FOR THE RECORD WE NOTE THAT SINCE JANUARY 1, 1977, MR. ARCHULETA HAS BEEN AN EMPLOYEE OF THE DEPARTMENT OF ENERGY. HOWEVER, DURING ALL PORTIONS OF THE CLAIM HE WAS EMPLOYED BY EITHER AEC OR ERDA.

THE CLAIMS DIVISION IN ITS ACTION OF JULY 31, 1979, DISALLOWED MR. ARCHULETA'S CLAIM ON THE BASIS THAT HIS AGENCY WAS NOT SUBJECT TO APPLICABLE CIVIL SERVICE COMMISSION (CSC) (NOW OFFICE OF PERSONNEL MANAGEMENT) REGULATIONS. WE UPHOLD THAT DISALLOWANCE FOR THE REASONS STATED BELOW.

OUR TURNER-CALDWELL DECISIONS HELD THAT EMPLOYEES DETAILED TO HIGHER GRADE POSITIONS FOR MORE THAN 120 DAYS WITHOUT CIVIL SERVICE COMMISSION APPROVAL ARE ENTITLED TO RETROACTIVE TEMPORARY PROMOTIONS AND BACK PAY FOR THE PERIOD BEGINNING WITH THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. THOSE DECISIONS WERE BASED ON AN INTERPRETATION BY THE COMMISSION'S BOARD OF APPEALS AND REVIEW (NOW APPEALS REVIEW BOARD) TO THE EFFECT THAT UNDER THE PROVISIONS OF SUBCHAPTER 8, CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL AN AGENCY HAD NO DISCRETION TO CONTINUE TO DETAIL BEYOND 120 DAYS WITHOUT CSC APPROVAL. ABSENT SUCH APPROVAL, THE AGENCY HAD A MANDATORY DUTY TO AWARD THE EMPLOYEE A TEMPORARY PROMOTION IF HE CONTINUED TO PERFORM THE DUTIES OF THE HIGHER GRADE POSITION.

MR. ARCHULETA AS AN EMPLOYEE OF THE AEC AND ERDA WAS NOT SUBJECT TO THE APPLICABLE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL. THE AEC AND ITS SUCCESSOR, ERDA, ELECTED TO EXCEPT THEIR EMPLOYEES FROM THE COMPETITIVE SERVICE AS WELL AS FROM THE GENERAL SCHEDULE UNDER THE AUTHORITY OF SECTION 161(D) OF THE ATOMIC ENERGY ACT, AS AMENDED, 42 U.S.C. 2201(D), AND SECTION 106(A) OF THE ENERGY REORGANIZATION ACT OF 1974, PUBLIC LAW 93 -438, 42 U.S.C. 5816(A). SINCE SUBCHAPTER 8, CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL, APPLIES ONLY TO DETAILS BETWEEN POSITIONS IN THE EXCEPTED SERVICE THAT ARE UNDER THE GENERAL SCHEDULE, THE REMEDY FOR EXTENDED DETAILS SPECIFIED IN TURNER-CALDWELL IS UNAVAILABLE IN MR. ARCHULETA'S CASE. SEE MATTER OF ISRAEL WARSHAW, B-194484, SEPTEMBER 21, 1979.

THE AEC AND ERDA ISSUED THEIR OWN REGULATIONS GOVERNING DETAILS. AS SET FORTH AT PARAGRAPH B2B OF ERDA (AEC) APPENDIX 4108, PART VI, THOSE REGULATIONS PROVIDE:

SINCE THE USE OF A DETAIL MAY CONTRAVENE SOUND COMPENSATION PRACTICES AND MERIT SYSTEM PRINCIPLES, DETAILS SHOULD NORMALLY BE FOR PERIODS OF LESS THAN THREE MONTHS.

UNLIKE THE DETAIL PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, THIS REGULATION DOES NOT LIMIT THE AEC'S OR ERDA'S DISCRETION TO CONTINUE A DETAIL BEYOND 3 MONTHS, NOR DO THE RELATED PROVISIONS OF PARAGRAPH A4 OF THAT APPENDIX REQUIRE THE AGENCY TO TEMPORARILY PROMOTE AN EMPLOYEE DETAILED TO A HIGHER-GRADE POSITION FOR LONGER THAN ANY SPECIFIED PERIOD OF TIME. COMPARE MATTER OF JOSE LUJAN, 59 COMP.GEN. 200(1980).

ACCORDINGLY, SINCE MR. ARCHULETA WAS NOT SUBJECT TO THE APPLICABLE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL OR TO ANY SIMILAR NONDISCRETIONARY AGENCY POLICY, WE AFFIRM THE ACTION OF OUR CLAIMS DIVISION DISALLOWING MR. ARCHULETA'S CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY.