B-207866, JUL 27, 1982

B-207866, JUL 27, 1982

DIGEST: EMPLOYEE'S CLAIM OF ENTITLEMENT TO A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY UNDER OUR TURNER-CALDWELL DECISIONS DUE TO SEVERAL ALLEGEDLY OVERLONG DETAILS MUST BE DENIED SINCE WE HAVE RECENTLY RULED THAT WE WILL FOLLOW THE DECISION OF THE COURT OF CLAIMS IN WILSON V. UNITED STATES CT.CL. NO. 324-81C, ORDER, OCTOBER 23, 1981, HOLDING THAT EMPLOYEES HAVE NO ENTITLEMENT UNDER STATUTE OR THE FEDERAL PERSONNEL MANUAL TO TEMPORARY PROMOTIONS FOR OVERLONG DETAILS.

MARVIN BUSS - CLAIM FOR TEMPORARY PROMOTION INCIDENT TO OVERLONG DETAIL:

THIS DECISION IS IN RESPONSE TO AN INQUIRY FROM REPRESENTATIVE PAT ROBERTS ON BEHALF OF HIS CONSTITUENT, MR. MARVIN BUSS. MR. BUSS, AN EMPLOYEE AT THE U. S. ARMY AVAIATION RESEARCH AND DEVELOPMENT COMMAND IN ST. LOUIS, CLAIMS ENTITLEMENT TO A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY DUE TO SEVERAL ALLEGEDLY OVERLONG DETAILS TO THE POSITION OF CHIEF, AIRCRAFT SYSTEMS BRANCH, TECHNICAL MANAGEMENT DIVISION, OFFICE OF THE PROGRAM MANAGER, ADVANCED ATTACK HELICOPTER. MR. BUSS BASES HIS CLAIM ON OUR DECISIONS IN TURNER-CALDWELL, 55 COMP.GEN. 539 (1975) AND 56 COMP.GEN. 427 (1972). SINCE WE HAVE RECENTLY DECIDED TO FOLLOW THE DECISION BY THE COURT OF CLAIMS IN WILSON V. UNITED STATES, CT.CL. NO. 324 -81C, ORDER, OCTOBER 23, 1981, WHICH REACHES THE OPPOSITE RESULT FROM OUR TURNER-CALDWELL DECISIONS, WE HOLD THAT MR. BUSS' CLAIM MUST BE DENIED. TURNER-CALDWELL III, B-203564, MAY 25, 1982, 61 COMP.GEN. (1982).

OUR TURNER-CALDWELL DECISIONS HELD THAT EMPLOYEES WHO WERE DETAILED TO HIGHER GRADED POSITIONS MORE THAN 120 DAYS WITHOUT PRIOR CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT (OPM)) APPROVAL WERE ENTITLED TO TEMPORARY PROMOTIONS BEGINNING ON THE 121ST DAY. WE NOTE THAT, UNDER FEDERAL PERSONNEL MANUAL BULLETIN 300-48, EFFECTIVE FEBRUARY 15, 1979, OPM DELEGATED AUTHORITY TO AGENCIES TO DETAIL EMPLOYEES UP TO 240 DAYS, INSTEAD OF 120 DAYS, WITHOUT PRIOR OPM APPROVAL. IN WILSON V. UNITED STATES, ABOVE, THE COURT OF CLAIMS HELD THAT NEITHER THE APPLICABLE STATUTE (5 U.S.C. SEC. 3341), NOR THE FEDERAL PERSONNEL MANUAL AUTHORIZES A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY IN CASES INVOLVING OVERLONG DETAILS. IN TURNER CALDWELL III, SUPRA., WE REVIEWED THE WILSON DECISION AND DECIDED TO FOLLOW IT WITH RESPECT TO ALL PENDING AND FUTURE CLAIMS.

EVEN IF WE HAD DECIDED NOT TO FOLLOW WILSON IT DOES NOT APPEAR THAT MR. BUSS WOULD BE ENTITLED TO RELIEF UNDER OUR DECISIONS. ALTHOUGH MR. BUSS DISCUSSES SEVERAL DETAILS NO SINGLE DETAIL APPEARS TO HAVE LASTED THE NUMBER OF DAYS NECESSARY FOR THE GRANTING OF A TEMPORARY PROMOTION AT THE TIME THAT DETAIL OCCURRED. WE HAVE HELD THAT EACH PERIOD OF DETAIL IS A SEPARATE DETAIL, AND THAT SEPARATE DETAILS MAY NOT BE AGGREGATED FOR THE PURPOSE OF DETERMINING WHETHER A DETAIL EXCEEDED THE PERMISSIBLE LENGTH, AND DETERMINING THE DATE OF ENTITLEMENT TO A RETROACTIVE PROMOTION. KATIE B. KEYS, B-201946, JUNE 16, 1981.

IN ADDITION, WE WOULD LIKE TO POINT OUT THAT ALTHOUGH MR. BUSS SUBMITTED AN AGENCY REGULATION, AVRADCOM REG. 690-6, CONCERNING TEMPORARY PROMOTIONS IN CASES OF OVERLONG DETAILS, THAT REGULATION PROVIDES NO BASIS FOR ALLOWING HIS CLAIM. WE HAVE HELD THAT WHERE AN AGENCY, EITHER BY ITS OWN REGULATION, OR BY THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT, ESTABLISHES A SPECIFIED PERIOD AFTER WHICH IT BECOMES MANDATORY TO PROMOTE AN EMPLOYEE DETAILED TO HIGHER GRADED POSITION, THAT REGULATION OR PROVISION MAY PROVIDE THE BASIS FOR BACKPAY. SEE ALBERT C. BEACHLEY AND ROBERT S. DAVIS, B-200000, MAY 25, 1982; ALBERT W. LURZ, B-200005, JUNE 18, 1982. THE REGULATION HERE, AVRADCOM REG. 690-6 IS NOT SUCH A REGULATION. IT SETS FORTH NO NONDISCRETIONARY AGENCY POLICY WITH REGARD TO TEMPORARY PROMOTIONS FOR DETAILS, RATHER, IT MERELY OUTLINES THE HOLDINGS OF OUR TURNER-CALDWELL DECISIONS.