B-173976, APR 4, 1973, 52 COMP GEN 631

B-173976, APR 4, 1973, 52 COMP GEN 631

COMPENSATION - PROMOTIONS - DELAYED - FREEZE ON PROMOTIONS WHERE THE FEDERAL AVIATION ADMINISTRATION ELECTED, IN THE EXERCISE OF ITS EXECUTIVE FUNCTION TO APPOINT PERSONS TO THE CIVILIAN GOVERNMENT SERVICE, NOT TO PROMOTE DEVELOPMENT AIR TRAFFIC CONTROLLERS WHO HAD SATISFIED THE CRITERIA FOR PROMOTION UNTIL CLARIFICATION OF THE PRESIDENTIAL ORDER OF DECEMBER 11, 1972, PLACING A FREEZE ON PROMOTIONS, THE EMPLOYEES DID NOT BECOME ENTITLED TO HIGHER SALARIES PRIOR TO THE DATE OF THE AGENCY'S PROMOTIONAL ACTION, NOTWITHSTANDING THE CONTROLLERS PERFORMED THE DUTIES AND OTHERWISE QUALIFIED FOR THE PROMOTIONS, OR THAT AN EMPLOYMENT AGREEMENT MAY HAVE BEEN EXECUTED, SINCE UNDER EXECUTIVE ORDER 11491, THE RIGHT OF PROMOTION IS RETAINED BY THE MANAGEMENT OFFICIALS OF AN AGENCY. FURTHERMORE, THE FAILURE TO PROMOTE IS NOT THE "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" CONTEMPLATED BY 5 U.S.C. 5596 TO ENTITLE THE EMPLOYEES TO BACK PAY.

TO THE REGIONAL VICE PRESIDENT, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, APRIL 4, 1973:

THIS REFERS TO YOUR LETTER OF FEBRUARY 6, 1973, REQUESTING A DECISION CONCERNING WHETHER AIR TRAFFIC CONTROLLER DEVELOPMENTAL PROMOTIONS DELAYED BY THE FEDERAL AVIATION ADMINISTRATION AS A RESULT OF THE PRESIDENT'S DECEMBER 11, 1972 FREEZE ON HIRINGS AND PROMOTIONS IN THE EXECUTIVE BRANCH, SHOULD BE MADE RETROACTIVELY EFFECTIVE TO DATES WHEN THE CONTROLLERS SATISFIED PROMOTION CRITERIA DURING THE FREEZE PERIOD.

YOUR CONTENTION AS WE UNDERSTAND IT IS THAT AN EMPLOYMENT AGREEMENT BETWEEN THE AGENCY AND ITS CONTROLLER EMPLOYEES REQUIRED THE AGENCY TO PROMOTE SUCH EMPLOYEES WHENEVER THEY SATISFIED CERTAIN ESTABLISHED CRITERIA RELATIVE TO PERFORMANCE, TRAINING, TIME IN GRADE, ETC. UPON IMPOSITION OF THE FREEZE, THE AGENCY WAS UNCERTAIN WHETHER SUCH PROMOTIONS WERE PERMISSIBLE UNDER TERMS OF THE PRESIDENT'S ORDER AND SOUGHT ADVICE FROM THE CIVIL SERVICE COMMISSION. YOU STATE THE CIVIL SERVICE COMMISSION RULED ON JANUARY 2, 1973, THAT AN IMPLICIT COMMITMENT EXISTED ON THE PART OF BOTH THE AGENCY AND THE EMPLOYEES THAT WHEN THE EMPLOYEES SATISFIED THE CRITERIA THEY COULD NOT BE DENIED PROMOTIONS. YOU COMPLAIN THAT THE AGENCY HAS NOT MADE DELAYED PROMOTIONS RETROACTIVELY EFFECTIVE TO DATES ON WHICH THE EMPLOYEES SATISFIED THE CRITERIA AND SEEK A DECISION ON THIS MATTER.

THE FEDERAL AVIATION ADMINISTRATION HAS INFORMALLY ADVISED THIS OFFICE THAT YOUR ORGANIZATION DOES NOT HAVE AN AGREEMENT COVERING PROMOTION OF DEVELOPMENTAL CONTROLLERS. MOREOVER, WE NOTE THAT SECTION 12 OF EXECUTIVE ORDER 11491, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, REQUIRES ALL AGREEMENTS BETWEEN AN AGENCY AND A LABOR ORGANIZATION TO INCLUDE A BASIC PROVISION RETAINING THE RIGHT OF PROMOTION IN MANAGEMENT OFFICIALS OF THE AGENCY, IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS. COMP. GEN. 850(1971). APPARENTLY, YOU ARE RELYING ON AGENCY POLICY TO ADVANCE DEVELOPMENTAL CONTROLLERS WHEN CERTAIN SPECIFIED DEVELOPMENT CRITERIA HAS BEEN SATISFIED.

HOWEVER, IT IS AN ESTABLISHED PRINCIPLE OF LAW THAT THE POWER OF APPOINTMENT TO THE CIVILIAN GOVERNMENT SERVICE IS AN EXECUTIVE FUNCTION AND LIES WITHIN THE DISCRETION OF THE HEAD OF THE EMPLOYING AGENCY. TIERNEY V. UNITED STATES, 168 CT. CL. 77(1964); NORDSTROM V. UNITED STATES, 177 CT. CL. 818(1966). FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. THUS WHERE EMPLOYEES OF AN AGENCY BELIEVED THEMSELVES ENTITLED TO PROMOTION TO A HIGHER GRADE OR TO HAVE THE POSITIONS THEY OCCUPIED RECLASSIFIED TO A HIGHER GRADE, AND WERE ULTIMATELY SUCCESSFUL IN SO PERSUADING THE CIVIL SERVICE COMMISSION, THEIR ENTITLEMENT TO THE PAY OF THE HIGHER GRADE DID NOT COMMENCE UNTIL THEY WERE ACTUALLY PROMOTED TO THAT GRADE IN ACCORDANCE WITH THE MANDATE OF THE CIVIL SERVICE COMMISSION, NOT HAVING OCCUPIED THE HIGHER GRADE POSITION UNTIL THAT TIME. FURTHERMORE, THE GENERAL RULE IS THAT WHEN A POSITION IS RECLASSIFIED TO A HIGHER GRADE AS A RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION, THERE IS NO AUTHORITY TO MAKE THE HIGHER SALARY RATE RETROACTIVELY EFFECTIVE. DIANISH ET AL. V. UNITED STATES, 183 CT. CL. 702(1968).

IN THE INSTANT CASE, THE FEDERAL AVIATION ADMINISTRATION ELECTED NOT TO EXERCISE ITS DISCRETION TO PROMOTE CERTAIN DEVELOPMENTAL CONTROLLERS UNTIL IT OBTAINED CLARIFICATION OF THE PRESIDENTIAL ORDER PLACING A FREEZE ON PROMOTIONS. SINCE THE APPOINTMENTS (PROMOTIONS) WERE NOT MADE UNTIL A LATER DATE, THE EMPLOYEES DID NOT BECOME ENTITLED TO THE HIGHER SALARIES FOR ANY PERIOD PRIOR THERETO, NOTWITHSTANDING THE FACT THEY MAY HAVE PERFORMED THE DUTIES OF, AND HAVE BEEN OTHERWISE QUALIFIED FOR, THESE POSITIONS IN THE INTERIM. IT HAS LONG BEEN THE RULE OF OUR 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).

IN RESPONSE TO YOUR REQUEST, WE HAVE ALSO EXAMINED THE POSSIBLE APPLICATION OF 5 U.S.C. 5596, COVERING BACK PAY DUE TO UNJUSTIFIED PERSONNEL ACTION, WHICH READS IN PERTINENT PART AS FOLLOWS:

AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION.

(C) THE CIVIL SERVICE COMMISSION SHALL PRESCRIBE REGULATIONS TO CARRY OUT THIS SECTION.***

REGULATIONS IMPLEMENTING THIS STATUTE HAVE BEEN PROMULGATED BY THE CIVIL SERVICE COMMISSION IN 5 CFR 550.803 AND PROVIDE IN PART AS FOLLOWS:

(D) TO BE UNJUSTIFIED OR UNWARRANTED, A PERSONNEL ACTION MUST BE DETERMINED TO BE IMPROPER OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS AFTER CONSIDERATION OF THE EQUITABLE, LEGAL, AND PROCEDURAL ELEMENTS INVOLVED IN THE PERSONNEL ACTION.

(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON (INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER.

OUR OFFICE HAS HAD OCCASION TO CONSTRUE THE LANGUAGE OF THE ABOVE QUOTED STATUTE AND REGULATIONS AND HAS CONSISTENTLY HELD THAT A FAILURE TO PROMOTE AS A RESULT OF DISCRIMINATION OR OTHER UNJUSTIFIED CAUSE IS NOT SUCH AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" AS TO ENTITLE THE EMPLOYEES ADVERSELY AFFECTED THEREBY TO BACK PAY. SEE B-173388, JULY 26, 1971; B-173255, JULY 14, 1971, AND B-165571(1), JULY 18, 1969, COPIES ENCLOSED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD WE ARE OF THE OPINION THAT THE FEDERAL AVIATION ADMINISTRATION ACTED PROPERLY IN NOT MAKING DELAYED PROMOTIONS OF DEVELOPMENTAL CONTROLLERS RETROACTIVELY EFFECTIVE.