B-140877, DEC. 1, 1959

B-140877: Dec 1, 1959

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YOU WERE COMPENSATED AT GRADE GS-16 WHEREAS FROM NOVEMBER 22. YOU SAY THAT THE GRADE GS-17 AND GRADE GS-18 POSITIONS WERE ESTABLISHED ABOUT JANUARY 1. THE OFFICIAL RECORD SHOWS THAT SO FAR AS THE POSITIONS IN GRADES GS 16 THROUGH 18 ARE CONCERNED THE GRADE ASSIGNED IN EACH CASE IS BASED UPON THE QUALIFICATIONS AND PROFICIENCY OF THE SELECTED EMPLOYEE AND THE SUPERGRADE INDIVIDUALS ARE SUBJECT TO ASSIGNMENT IN ANY CAPACITY WHERE THEY ARE NEEDED AND FOR WHICH THEY POSSESS THE REQUIRED QUALIFICATIONS. THE PERSONS HOLDING SUCH RANK DO NOT DO SO AS THE RESULT OF CURRENT POSITION ASSIGNMENT BUT BECAUSE THEY HAVE BEEN EVALUATED AS BEST QUALIFIED FOR EXERCISING THE MANAGERIAL AND TECHNICAL RESPONSIBILITIES REQUIRED AT THOSE LEVELS.

B-140877, DEC. 1, 1959

TO MR. EARL H. DELONG:

YOUR CLAIM OF JULY 10, 1959, ALLEGES THAT AS AN EMPLOYEE OF THE CENTRAL INTELLIGENCE AGENCY, FOR THE PERIOD NOVEMBER 22, 1953, TO MARCH 4, 1959, YOU WERE COMPENSATED AT GRADE GS-16 WHEREAS FROM NOVEMBER 22, 1953 TO JULY 28, 1957, YOU PERFORMED THE DUTIES AND RESPONSIBILITIES OF A GRADE GS-17 POSITION, DEPUTY CHIEF, PPC STAFF, AND FROM JULY 28, 1957 TO MARCH 4, 1959, ON WHICH DATE YOU VOLUNTARILY RESIGNED, YOU PERFORMED THE DUTIES AND RESPONSIBILITIES OF THE CHIEF, PPC STAFF, A GRADE GS-18 POSITION. YOU ASK THAT YOU BE ALLOWED THE DIFFERENCE IN PAY BETWEEN THE GRADE GS-16 POSITION AND THE GRADES GS-17 AND 18 POSITIONS FOR THE FOREGOING PERIODS INCLUDING COMPOUND INTEREST THEREON ACCRUING ON THE FIRST OF EACH JANUARY AND JULY FROM NOVEMBER 22, 1953 TO JULY 1, 1959.

YOU SAY THAT THE GRADE GS-17 AND GRADE GS-18 POSITIONS WERE ESTABLISHED ABOUT JANUARY 1, 1953, PROPERLY CLASSIFIED AND ALLOCATED, AND THAT THEY CONTINUED TO EXIST DURING THE PERIOD YOU PERFORMED THE DUTIES THEREOF; THAT THE JOURNAL ACTIONS SHOWING "OPERATION'S OFFICER (GENERAL)," COVERING MOST OF THE FOREGOING PERIODS, DID NOT IDENTIFY SPECIFIC ESTABLISHED POSITIONS BUT SIMPLY USED A GENERAL TERM "APPLIED IN CIA TO SCORES OF POSITIONS OF ALL GRADE LEVELS AND KINDS OF RESPONSIBILITY" FOR THE PURPOSE OF SECURITY CONCEALMENT. FURTHER YOU ALLEGE THAT THE CENTRAL INTELLIGENCE AGENCY HAD, BY ITS REGULATIONS, RULES AND ACTIONS ADOPTED THE PRINCIPLES OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071, ET SEQ., FOR THE POSITIONS HERE INVOLVED, AND THAT THE AGENCY DID NOT ABIDE BY THE PROVISIONS OF 5 U.S.C. 38, CONCERNING THE DETAILING OF EMPLOYEES.

THE OFFICIAL RECORD SHOWS THAT SO FAR AS THE POSITIONS IN GRADES GS 16 THROUGH 18 ARE CONCERNED THE GRADE ASSIGNED IN EACH CASE IS BASED UPON THE QUALIFICATIONS AND PROFICIENCY OF THE SELECTED EMPLOYEE AND THE SUPERGRADE INDIVIDUALS ARE SUBJECT TO ASSIGNMENT IN ANY CAPACITY WHERE THEY ARE NEEDED AND FOR WHICH THEY POSSESS THE REQUIRED QUALIFICATIONS. AT THE INDIVIDUAL SUPERGRADE LEVELS, THE PERSONS HOLDING SUCH RANK DO NOT DO SO AS THE RESULT OF CURRENT POSITION ASSIGNMENT BUT BECAUSE THEY HAVE BEEN EVALUATED AS BEST QUALIFIED FOR EXERCISING THE MANAGERIAL AND TECHNICAL RESPONSIBILITIES REQUIRED AT THOSE LEVELS. THE AGENCY TREATS THE RESULTS OF POSITIONS ANALYSIS AND EVALUATION AT SUPERGRADE LEVELS AS ADVISORY ONLY. THE REGULATIONS OF THE CENTRAL INTELLIGENCE AGENCY, NO. 20-240, FROM JUNE 29, 1953, HAVE PROVIDED FOR THE REVIEW OF ALL REQUESTS FOR SUPERGRADE PERSONNEL ACTIONS AND THE FURNISHING OF RECOMMENDATIONS THEREON FOR THE CONSIDERATION OF THE DIRECTOR. WE ARE NOT AWARE OF ANY RULE OR REGULATION OF THE AGENCY THAT MANDATORILY REQUIRES APPLICATION OF THE PRINCIPLES OF THE CLASSIFICATION ACT OF 1949 TO SUCH CASES. THE RECORD SHOWS THAT YOU WERE CONSIDERED FOR PROMOTION TO GRADE GS-17 ON APRIL 23, 1957, BUT THAT SUCH PROMOTION WAS NOT APPROVED AND YOU WERE CONTINUED IN GRADE GS-16. IN OTHER WORDS, IT WAS OFFICIALLY DETERMINED THAT YOUR QUALIFICATIONS JUSTIFIED GRADE GS-16, NOT GRADE 17 OR GRADE 18, IRRESPECTIVE OF WHAT WAS VERBALLY TOLD YOU BY YOUR SUPERVISOR. UNDERSTAND THAT ALL EMPLOYEES CONSIDERED FOR SUPERGRADE RANK OR HOLDING SUCH RANK AND CONSIDERED FOR HIGHER SUPERGRADE RANK ARE OR HAVE BEEN ADVISED FULLY THAT ASSIGNMENTS ARE MADE UPON THE FOREGOING BASIS EXCLUSIVELY AND THAT REASSIGNMENTS ARE ALSO MADE THE SAME WAY.

5 U.S.C. 38, READS, IN PERTINENT PART, AS FOLLOWS:

"EACH HEAD OF A DEPARTMENT MAY, FROM TIME TO TIME, ALTER THE DISTRIBUTION AMONG THE VARIOUS BUREAUS AND OFFICES * * * OF THE CLERKS AND OTHER EMPLOYEES ALLOWED BY LAW, EXCEPT SUCH CLERKS OR EMPLOYEES AS MAY BE REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK AS HE MAY FIND IT NECESSARY AND PROPER TO DO, BUT ALL DETAILS HEREUNDER SHALL BE MADE BY WRITTEN ORDER OF THE HEAD * * * AND IN NO CASE BE FOR A PERIOD OF TIME EXCEEDING ONE HUNDRED TWENTY DAYS. DETAILS SO MADE MAY, ON EXPIRATION, BE RENEWED FROM TIME TO TIME BY WRITTEN ORDER OF THE HEAD * * * IN EACH PARTICULAR CASE, FOR PERIODS OF NOT EXCEEDING ONE HUNDRED TWENTY DAYS.'

SECTION 202 (16), CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082, EXCEPTS THE CENTRAL INTELLIGENCE AGENCY FROM THAT ACT. FURTHER, 50 U.S.C. 403J AUTHORIZES THE AGENCY TO EXPEND APPROPRIATIONS FOR PERSONAL SERVICES "NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW.' WE HOLD, THEREFORE, THAT THE AGENCY IS NOT REQUIRED TO FOLLOW 5 U.S.C. 38.

CONSEQUENTLY, SINCE THE RECORD SHOWS YOUR QUALIFICATIONS WERE CONSIDERED UNDER THE REGULATIONS OF THE AGENCY AND DETERMINED TO BE PROPER FOR GRADE GS-16 AND A RECOMMENDATION THEREUNDER FOR GRADE GS-17 WAS DISAPPROVED, AND THAT YOU HAVE RECEIVED COMPENSATION, FOR THE PERIOD INVOLVED, AT GRADE GS- 16, THE ONLY GRADE YOU HELD OFFICIALLY DURING THE PERIOD, WE HAVE NO BASIS, UPON THE PRESENT RECORD, FOR ALLOWING YOUR CLAIM.