B-163676, JUN. 4, 1968

B-163676, JUN. 4, 1968

TO MISS BEATRICE SILK:

YOUR LETTER OF APRIL 15, 1968, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR BACK PAY AS A RESULT OF YOUR DEMOTION BY THE SMALL BUSINESS ADMINISTRATION.

IN OUR DECISION OF APRIL 2, 1968, B-163676, WHICH SUSTAINED OUR CLAIMS DIVISION DISALLOWANCE OF YOUR CLAIM, YOU WERE ADVISED AS FOLLOWS:

"CONTRARY TO YOUR BELIEF, THE DECISION OF THE BOARD OF APPEALS AND REVIEW (NOVEMBER 19, 1965) DOES CONSTITUTE THE FINAL ACTION OF THE COMMISSION IN YOUR CASE, AS IS EVIDENCED BY THE REGULATIONS QUOTED ABOVE. THAT DECISION IS BINDING AND CONCLUSIVE UPON OUR OFFICE. SINCE THE BOARD OF APPEALS AND REVIEW DID NOT SUSTAIN YOUR RESTORATION TO GRADE GS-7 BUT, ON THE CONTRARY, FOUND THAT YOUR DEMOTION WAS WARRANTED UNDER THE CIRCUMSTANCES, THERE EXISTS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR BACK PAY.'

YOU INSIST THAT THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW HAD NO AUTHORITY TO CONSIDER THE APPEAL OF YOUR AGENCY FROM THE INITIAL DECISION OF THE COMMISSION'S BOSTON REGIONAL OFFICE. IN THAT REGARD YOU CONTEND THAT PART 772 OF THE COMMISSION'S REGULATIONS HAS NO APPLICABILITY TO YOUR CASE SINCE THE BOSTON REGIONAL OFFICE RULED IS YOUR FAVOR.

YOUR DEMOTION, WHICH WAS INITIATED BY OUR AGENCY, WAS PROCESSED UNDER PART 752, SUBPART B, OF THE COMMISSION'S REGULATIONS (BOOK III, FPM SUPPLEMENT 990-1). SECTION 772.301 (A) OF PART 772, CONCERNING APPEALS TO THE COMMISSION, PROVIDES AS FOLLOWS:

"SEC. 772.301 COVERAGE. (A) AGENCY INITIATED ACTIONS. EXCEPT AS OTHERWISE PROVIDED, THIS SUBPART APPLIES TO APPEALS TO THE COMMISSION UNDER SUBPART H OF PART 315 OF THIS CHAPTER, SUBPART B OF PART 330 OF THIS CHAPTER, SUBPART I OF PART 351 OF THIS CHAPTER, SUBPART E OF PART 531 OF THIS CHAPTER, AND SUBPARTS B AND C OF PART 752 OF THIS CHAPTER.'

IT IS CLEAR FROM THE ABOVE THAT THE REGULATIONS CONTAINED IN PART 772 ARE APPLICABLE TO ADVERSE ACTIONS COVERED BY SUBPART B OF PART 752 AND, THUS, ARE APPLICABLE TO YOUR CASE.

THE DECISION OF THE BOSTON REGIONAL OFFICE CONSTITUTED THE "DECISION ON INITIAL APPEAL" UNDER PART 772 OF THE REGULATIONS. IN THAT REGARD, SECTION 772.306 (A) PROVIDES IN PART AS FOLLOWS:

"THE OFFICE OF THE COMMISSION HAVING INITIAL JURISDICTION OF THE APPEAL, AFTER MAKING SUCH INVESTIGATION AS IT CONSIDERS NECESSARY, SHALL ISSUE A WRITTEN DECISION AND SEND COPIES THEREOF TO THE APPELLANT, HIS REPRESENTATIVE, AND THE AGENCY. THE DECISION ON EACH APPEAL COVERED BY THIS PART SHALL CONTAIN FINDINGS, RECOMMENDATIONS FOR ANY CORRECTIVE ACTION REQUIRED, AND NOTIFICATION OF THE RIGHT OF EITHER PARTY TO APPEAL TO THE BOARD OF APPEALS AND REVIEW. * * * EXCEPT AS PROVIDED IN PARAGRAPH (B), THE AGENCY SHALL REPORT, WITHIN SEVEN CALENDAR DAYS AFTER RECEIPT OF THE DECISION, THAT IT HAS CARRIED THE DECISION INTO EFFECT OR THAT IT IS APPEALING THE DECISION TO THE BOARD.'

IN ACCORDANCE WITH THAT REGULATION THE DECISION OF THE BOSTON REGIONAL OFFICE CONTAINED THE FOLLOWING STATEMENT IN PART VII THEREOF:

"THIS DECISION BECOMES THE FINAL DECISION OF THE CIVIL SERVICE COMMISSION UNLESS FURTHER APPEALED BY EITHER THE APPELLANT OR THE EMPLOYING AGENCY TO THE BOARD OF APPEALS AND REVIEW, U.S. CIVIL SERVICE COMMISSION, WASHINGTON, D.C. 20415, WITHIN SEVEN (7) CALENDAR DAYS AFTER RECEIPT OF THIS DECISION.'

YOUR AGENCY HAD THE RIGHT TO AND DID APPEAL THE DECISION OF THE REGIONAL OFFICE TO THE BOARD OF APPEALS AND REVIEW AND, THUS, WAS NOT REQUIRED TO TAKE THE CORRECTIVE ACTION RECOMMENDED IN THAT DECISION.

WE SUGGEST THAT YOU CAREFULLY EXAMINE THE REGULATIONS DISCUSSED HEREINABOVE. UPON SO DOING WE ARE CERTAIN THAT YOU WILL BE SATISFIED THAT THE ACTIONS TAKEN BY YOUR AGENCY AND THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION WERE IN ACCORDANCE WITH THE LAW.