B-168953, APR. 10, 1970

B-168953: Apr 10, 1970

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DELAYED PROMOTION PHS OFFICER'S CLAIM FOR ADDITIONAL PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED HAD HE BEEN PROMOTED JULY 1. 1969 IS DENIED. AS PROMOTION IS NEW APPOINTMENT TO POSITION OF HIGHER RANK AND PAY. WHILE CLAIMANT MAY HAVE BEEN ELIGIBLE FOR PROMOTION JULY 1. SUCH RIGHT WAS INCHOATE. ITS VESTING WAS SUBJECT TO FUNDAMENTAL CONDITION OF APPOINTMENT BY APPOINTING POWER. WHICH WAS NOT EXERCISED UNTIL LATER DATE AS EVIDENCED BY PERSONNEL ORDER. GOVERNMENT LIABILITY FOR NEGLIGENT OR ERRONEOUS ACTS PHS OFFICER'S CLAIM FOR ADDITIONAL PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED HAD HE BEEN PROMOTED JULY 1. IS DENIED. AS PROMOTION IS NEW APPOINTMENT TO POSITION OF HIGHER RANK AND PAY.

B-168953, APR. 10, 1970

PUBLIC HEALTH SERVICE--COMMISSIONED PERSONNEL--PROMOTIONS--DELAYED PROMOTION PHS OFFICER'S CLAIM FOR ADDITIONAL PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED HAD HE BEEN PROMOTED JULY 1, INSTEAD OF JULY 14, 1969 IS DENIED, AS PROMOTION IS NEW APPOINTMENT TO POSITION OF HIGHER RANK AND PAY, AND IT MUST BE MADE IN USUAL WAY ACCORDANCE WITH LAW AND REGULATIONS BY APPOINTING POWER. WHILE CLAIMANT MAY HAVE BEEN ELIGIBLE FOR PROMOTION JULY 1, AND THEREFORE HAD RIGHT TO BE PROMOTED, SUCH RIGHT WAS INCHOATE, AND ITS VESTING WAS SUBJECT TO FUNDAMENTAL CONDITION OF APPOINTMENT BY APPOINTING POWER, WHICH WAS NOT EXERCISED UNTIL LATER DATE AS EVIDENCED BY PERSONNEL ORDER. SEE COMP. GEN. DECS. CITED. AGENTS--GOVERNMENT-- GOVERNMENT LIABILITY FOR NEGLIGENT OR ERRONEOUS ACTS PHS OFFICER'S CLAIM FOR ADDITIONAL PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED HAD HE BEEN PROMOTED JULY 1, INSTEAD OF JULY 14, 1969, IS DENIED, AS PROMOTION IS NEW APPOINTMENT TO POSITION OF HIGHER RANK AND PAY, AND MUST BE MADE ACCORDING TO LAW AND REGULATIONS BY APPOINTING POWER. FACT THAT FAILURE TO PROMOTE CLAIMANT AT EARLIER DATE WAS RESULT OF ADMINISTRATIVE OVERSIGHT IS OF NO CONSEQUENCE INSOFAR AS HIS LEGAL RIGHT TO PAY IS CONCERNED, SINCE ABSENT SPECIFIC STATUTORY AUTHORITY, U.S. IS NOT LIABLE FOR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN PERFORMANCE OF THEIR DUTIES. SEE COMP. GEN. DECS. AND CT. CASES CITED.

TO CARL M. HOFFMAN, M.D.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 11, 1969, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED NOVEMBER 17, 1969, WHICH DISALLOWED YOUR CLAIM FOR DIFFERENCE IN BASIC PAY AND ALLOWANCES BETWEEN SENIOR ASSISTANT SURGEON AND SURGEON FOR THE PERIOD FROM JULY 1 THROUGH 13, 1969.

FROM INFORMATION WHICH HAS BEEN FURNISHED THIS OFFICE, IT APPEARS THAT ON JUNE 2, 1969, PUBLIC HEALTH SERVICE PERSONNEL ORDER 107 WAS PUBLISHED ANNOUNCING THE ANNUAL PROMOTION LIST FOR PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS. SHORTLY AFTER JULY 1, 1969, IT WAS DISCOVERED THAT YOUR NAME WAS NOT INCLUDED ON THE PROMOTION LIST, DUE TO AN ERROR IN THE COMPUTER FILE WHICH RESULTED IN YOUR NAME BEING INADVERTENTLY OMITTED FROM THE LIST OF COMMISSIONED OFFICERS ELIGIBLE FOR PROMOTION. IT IS REPORTED THAT YOU WERE APPROVED FOR PROMOTION ON JULY 14, 1969, AND BY PARAGRAPH 5 (4) OF PUBLIC HEALTH SERVICE PERSONNEL ORDER 145, DATED JULY 25, 1969, ANNOUNCEMENT WAS MADE OF YOUR PERMANENT PROMOTION TO SENIOR ASSISTANT SURGEON (R), EFFECTIVE JULY 14, 1969, AND YOUR TEMPORARY PROMOTION TO SURGEON (R) (T) (0-4), EFFECTIVE JULY 14, 1969.

YOU CLAIMED THE ADDITIONAL PAY AND ALLOWANCES WHICH YOU WOULD HAVE RECEIVED IF YOU HAD BEEN PROMOTED ON JULY 1, 1969. HOWEVER, OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM IN THE ABSENCE OF SOME PROVISION OF LAW AUTHORIZING YOU PAY AS SURGEON EARLIER THAN JULY 14, 1969.

THE PROMOTIONS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE GOVERNED BY THE PROVISIONS OF SECTION 210 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, 58 STAT. 687, AS AMENDED, 42 U.S.C. 211, AND REGULATIONS ISSUED BY THE PRESIDENT. BY EXECUTIVE ORDER NO. 11140, JANUARY 30, 1964, 29 F.R. 1637, THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, WAS AUTHORIZED AND EMPOWERED, WITHOUT THE APPROVAL, RATIFICATION, OR OTHER ACTION OF THE PRESIDENT, TO PERFORM, AMONG OTHER FUNCTIONS VESTED IN THE PRESIDENT UNDER THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, THE AUTHORITY TO MAKE OR TERMINATE TEMPORARY PROMOTIONS OF COMMISSIONED OFFICERS OF THE REGULAR CORPS AND RESERVE CORPS.

A PROMOTION IS A NEW APPOINTMENT TO A POSITION OF HIGHER RANK AND PAY. IT MUST BE MADE IN THE USUAL WAY IN ACCORDANCE WITH LAW AND REGULATIONS BY THE APPOINTING POWER. WHILE YOU MAY HAVE BEEN ELIGIBLE FOR PROMOTION AS OF JULY 1, 1969, AND THEREFORE HAD A RIGHT TO BE PROMOTED, SUCH RIGHT WAS INCHOATE AND ITS VESTING WAS SUBJECT TO THE FUNDAMENTAL CONDITION OF AN APPOINTMENT BY THE APPOINTING POWER. THAT POWER WAS NOT EXERCISED UNTIL A LATER DATE AS EVIDENCED BY PERSONNEL ORDER 145, DATED JULY 25, 1969, WHICH ANNOUNCED YOUR PROMOTION EFFECTIVE JULY 14, 1969. 26 COMP. GEN. 475 (1947), AND 29 COMP. GEN. 188, 211 (1949).

APPARENTLY YOU HAVE BEEN PAID AS SURGEON (0-4) FROM JULY 14, 1969, THE EFFECTIVE DATE OF YOUR TEMPORARY PROMOTION TO THAT GRADE. WHILE WE WILL NOT QUESTION THE INCREASED PAYMENT BEGINNING ON THAT DATE IN VIEW OF THE OFFICIAL ACTION TAKEN IN THIS MATTER ON JULY 14, 1969, WE KNOW OF NO PROVISION OF LAW AUTHORIZING YOUR RETROACTIVE APPOINTMENT TO A HIGHER GRADE AS OF JULY 1, 1969, REGARDLESS OF YOUR ELIGIBILITY FOR SUCH PROMOTION AT THAT TIME.

THE FACT THAT FAILURE TO PROMOTE YOU AT AN EARLIER DATE WAS THE RESULT OF AN ADMINISTRATIVE OVERSIGHT IS OF NO CONSEQUENCE INSOFAR AS YOUR LEGAL RIGHT TO PAY IS CONCERNED. IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); CARMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 COMP. GEN. 221 (1942); AND 44 COMP. GEN. 337 (1964).

ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 17, 1969, DISALLOWING YOUR CLAIM IS SUSTAINED.