B-160259, OCT. 31, 1966
Highlights
DANTZSCHER: THIS IS IN REPLY TO YOUR UNDATED LETTER RECEIVED IN OUR OFFICE ON OCTOBER 10. WHILE YOU WERE AN EMPLOYEE OF THE MARITIME ADMINISTRATION. THE RECORD INDICATES THAT YOU WERE PROMOTED TO GS-9. IT IS YOUR POSITION THAT YOU WERE ENTITLED TO COMPENSATION AT GRADE GS-9. IT IS YOUR VIEW THAT SECTION 5.09 OF MARITIME ADMINISTRATION ORDER NO. 202 770 REQUIRED A DECISION 23 WORKING DAYS AFTER MARCH 31. THAT YOUR PROMOTION SHOULD HAVE BEEN MADE RETROACTIVE TO COINCIDE WITH THAT DATE. THE ABOVE LANGUAGE OF SECTION 5.09 INDICATES THAT THE TIME STANDARDS SET FORTH THEREIN ARE THE DESIRED ONES BUT IT DOES NOT APPEAR THAT THEY ARE MANDATORY IN NATURE OR HAVE A RETROACTIVE EFFECT UPON ACTIONS EXCEEDING SUCH TIME LIMITATIONS.
B-160259, OCT. 31, 1966
TO MR. BARRY C. DANTZSCHER:
THIS IS IN REPLY TO YOUR UNDATED LETTER RECEIVED IN OUR OFFICE ON OCTOBER 10, 1966, APPEALING FROM OUR OFFICE SETTLEMENT Z-2328783, SEPTEMBER 7, 1966, DENYING YOUR CLAIM FOR THE DIFFERENCE IN COMPENSATION BETWEEN GRADE GS-9, STEP 1, AND GRADE GS-7, STEP 2, BETWEEN MAY 3, 1966, AND JULY 17, 1966, WHILE YOU WERE AN EMPLOYEE OF THE MARITIME ADMINISTRATION.
THE RECORD INDICATES THAT YOU WERE PROMOTED TO GS-9, STEP 1, EFFECTIVE JULY 17, 1966, PURSUANT TO THE ASSISTANT SECRETARY OF COMMERCE'S LETTER OF JULY 14, 1966. IT IS YOUR POSITION THAT YOU WERE ENTITLED TO COMPENSATION AT GRADE GS-9, STEP 1 RATE, FROM MAY 3, 1966. THIS DATE MARKED THE END OF A PERIOD OF 23 WORKING DAYS FROM MARCH 31, 1966, THE DATE ON WHICH YOU FILED A GRIEVANCE COMPLAINING OF A DENIAL BY THE MARITIME ADMINISTRATION OF THE RECLASSIFICATION OF YOUR POSITION AS SUBSIDY OPERATIONS EXAMINER FROM GS-7 TO GS-9. IT IS YOUR VIEW THAT SECTION 5.09 OF MARITIME ADMINISTRATION ORDER NO. 202 770 REQUIRED A DECISION 23 WORKING DAYS AFTER MARCH 31, 1966, AND THAT YOUR PROMOTION SHOULD HAVE BEEN MADE RETROACTIVE TO COINCIDE WITH THAT DATE, MAY 3, 1966.
INITIALLY IT SHOULD BE NOTED THAT SECTION 5.09 OF THE ORDER IN QUESTION (202-53, DATED FEBRUARY 5, 1963) UNDER THE HEADING "TIME STANDARDS" PROVIDES IN PERTINENT PART "INSOFAR AS PRACTICABLE, THE FOLLOWING TIME STANDARDS SHALL BE OBSERVED IN REVIEWING EMPLOYEE GRIEVANCE * * *.' THE ABOVE LANGUAGE OF SECTION 5.09 INDICATES THAT THE TIME STANDARDS SET FORTH THEREIN ARE THE DESIRED ONES BUT IT DOES NOT APPEAR THAT THEY ARE MANDATORY IN NATURE OR HAVE A RETROACTIVE EFFECT UPON ACTIONS EXCEEDING SUCH TIME LIMITATIONS.
AGENCIES HAVE BEEN DELEGATED AUTHORITY BY THE CIVIL SERVICE COMMISSION TO PROMOTE EMPLOYEES. FPM 335.1-6. THE EFFECTIVE DATE OF SUCH PROMOTIONS IS GENERALLY DETERMINED BY THE AGENCY. FPM 335.1-10. HOWEVER, IT LONG HAS BEEN THE RULE OF OUR OFFICE THAT A DEMOTION OR PROMOTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO DECREASE OR INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. 40 COMP. GEN. 207; 39 ID. 583; 32 ID. 315, 316.
ONE OF THE REASONS FOR THE RULE IS TO PROTECT THE INTERESTS OF THE EMPLOYEE AS WELL AS THOSE OF THE UNITED STATES. THUS, IT MAY BE SAID THAT TO PERMIT A PROMOTION OR A DEMOTION TO BECOME EFFECTIVE RETROACTIVELY WOULD BE TO MAKE THE DATE THEREOF AN UNCERTAIN POINT IN TIME HAVING NO FINALITY AND NO UNIFORMITY. SUCH A PRACTICE WOULD BE DISRUPTIVE OF ORDERLY ADMINISTRATIVE PROCEDURE AND LEAD TO NUMEROUS IRREGULARITIES.
IN YOUR CASE THE AGENCY WOULD NOT HAVE BEEN AUTHORIZED TO MAKE YOUR PROMOTION RETROACTIVELY EFFECTIVE EVEN IF IT HAD ATTEMPTED TO DO SO. SINCE IT PROPERLY SET AN EFFECTIVE DATE SUBSEQUENT TO ITS ADMINISTRATIVE ACTION NO EARLIER ENTITLEMENT TO COMPENSATION AT THE GS 9 LEVEL HAS ARISEN ON YOUR PART.
ACCORDINGLY, OUR PRIOR ACTION DENYING YOUR CLAIM IS AND MUST BE SUSTAINED.