B-170500, OCT. 29, 1970

B-170500: Oct 29, 1970

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HE WAS THEN PAID AT GS-12 SALARY DUE TO THE CERTIFICATION OF HIS NEW POSITION AS ONE CARRYING A GS-12 SALARY. THIS POSITION WAS LATER RECLASSIFIED GS-13. GAO FINDS THAT CLAIMANT'S CLASSIFICATION AND SALARY WERE PROPERLY DETERMINED IN ACCORDANCE WITH REGULATIONS. IT IS WELL ESTABLISHED THAT ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE MADE RETROACTIVELY EFFECTIVE - THEREFORE THE CLAIM MUST BE DISALLOWED. IN OUR JUNE 17 LETTER IT IS STATED THAT: "THE RECORD SHOWS THAT BECAUSE OF HEALTH REASONS YOU TRANSFERRED FEBRUARY 25. WHEN YOUR SALARY WAS CHANGED TO THE GS-12 RATE. YOUR POSITION WAS CERTIFIED TO BE SUPERVISORY CHEMICAL RESEARCH ENGINEER. 1963 RESULTED IN THE RECLASSIFICATION OF YOUR POSITION AS GS 893-13 AND YOUR PROMOTION WAS EFFECTED SEPTEMBER 1.

B-170500, OCT. 29, 1970

RETROACTIVE PAY SUSTAINING PRIOR DECISION DISALLOWING RETROACTIVE PAY CLAIM BY J. S. BERBER, SUPERVISORY CHEMICAL RESEARCH ENGINEER, INCIDENT TO A RECLASSIFICATION OF HIS POSITION FROM GS-12 TO GS-13. WHERE CLAIMANT TRANSFERRED DUTY STATIONS BECAUSE OF HEALTH REASONS, HE RETAINED HIS GS-13 SALARY AS PROVIDED IN PUBLIC LAW 85-737, UNTIL THE TERMINATION OF HIS SAVED PAY; HE WAS THEN PAID AT GS-12 SALARY DUE TO THE CERTIFICATION OF HIS NEW POSITION AS ONE CARRYING A GS-12 SALARY. THIS POSITION WAS LATER RECLASSIFIED GS-13. GAO FINDS THAT CLAIMANT'S CLASSIFICATION AND SALARY WERE PROPERLY DETERMINED IN ACCORDANCE WITH REGULATIONS. FURTHER, IT IS WELL ESTABLISHED THAT ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE MADE RETROACTIVELY EFFECTIVE - THEREFORE THE CLAIM MUST BE DISALLOWED.

TO MR. JOHN STEVEN BERBER:

YOUR LETTER OF JUNE 30, 1970, IN EFFECT ASKS FOR RECONSIDERATION OF OUR CLAIMS SETTLEMENT LETTER OF JUNE 17, 1970, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE PAY.

IN OUR JUNE 17 LETTER IT IS STATED THAT:

"THE RECORD SHOWS THAT BECAUSE OF HEALTH REASONS YOU TRANSFERRED FEBRUARY 25, 1961 FROM GS-13 POSITION AT RENO TO A GS-12 POSITION AT MORGANTOWN AND THAT YOU RETAINED YOUR GS-13 SALARY AS PROVIDED IN PUBLIC LAW 85-737 UNTIL FEBRUARY 25, 1963, WHEN YOUR SALARY WAS CHANGED TO THE GS-12 RATE. FEBRUARY 8, 1963 AND AGAIN ON JULY 12, 1963, AS THE RESULT OF YOUR APPEALS, YOUR POSITION WAS CERTIFIED TO BE SUPERVISORY CHEMICAL RESEARCH ENGINEER, GS-893-12. A REEVALUATION MADE JULY 30, 1963 RESULTED IN THE RECLASSIFICATION OF YOUR POSITION AS GS 893-13 AND YOUR PROMOTION WAS EFFECTED SEPTEMBER 1, 1963. YOU CONTEND THAT YOU ARE ENTITLED TO A PAY ADJUSTMENT AS AN ERROR WAS MADE BY THE CLASSIFIER IN DETERMINING THAT YOUR POSITION WAS GS-12, WHICH CAUSED YOUR SALARY TO BE ADJUSTED TO THAT LEVEL AT THE TERMINATION OF YOUR SAVED PAY. IT IS REPORTED THAT BOTH YOUR CLASSIFICATION AND SALARY WERE PROPERLY DETERMINED IN ACCORDANCE WITH REGULATIONS, BY FIELD OFFICIALS DELEGATED TO CLASSIFY POSITIONS UP THROUGH GRADE GS-13.

"IT HAS BEEN HELD THAT UNDER SECTION 502 OF THE CLASSIFICATION ACT OF 1949, PROVIDING FOR ADMINISTRATIVE ALLOCATION AND REALLOCATION OF POSITIONS IN THE DEPARTMENTAL SERVICE WITHOUT PRIOR APPROVAL BY THE CIVIL SERVICE COMMISSION AND FOR THE PAYMENT OF COMPENSATION BASED ON SUCH ACTION, THE EFFECTIVE DATE OF SALARY CHANGES RESULTING FROM SUCH ACTIONS IN BOTH DEPARTMENTAL AND FIELD SERVICES IS THE DATE ACTION IS TAKEN BY THE PROPER ADMINISTRATIVE OFFICER FINALLY TO ALLOCATE OR REALLOCATE THE POSITION, OR SUCH LATER DATE WITHIN A REASONABLE PERIOD OF TIME AS MAY BE ADMINISTRATIVELY FIXED. THE PRINCIPLE IS WELL ESTABLISHED THAT ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE MADE RETROACTIVELY EFFECTIVE.

"YOUR PROMOTION FROM GS-12 TO GS-13 EFFECTIVE SEPTEMBER 1, 1963, APPROXIMATELY ONE MONTH AFTER ADMINISTRATIVE ACTION WAS TAKEN TO UPGRADE YOUR POSITION ON JULY 30, 1963, OCCURRED WITHIN A REASONABLE PERIOD OF TIME AS REQUIRED BY EXISTING REGULATIONS. THEREFORE, YOUR CLAIM FOR RETROACTIVE ADJUSTMENT OF SALARY MAY NOT BE ALLOWED.

"IN CONNECTION WITH YOUR CONTENTION THAT AN ERROR WAS MADE BY THE CLASSIFIER IN THE EVALUATION OF YOUR POSITION, IT IS WELL SETTLED THAT, IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES."

YOUR LETTER OF JUNE 30 DOES NOT SET FORTH ANY NEW DATA TO SUPPORT MODIFICATION OF THE DISALLOWANCE OF YOUR CLAIM. WHETHER AN ERROR IN POSITION CLASSIFICATION WAS MADE IS NOT DETERMINATIVE OF YOUR CLAIM. THE ERROR WHICH YOU ASSERT - IF IN FACT MADE - WAS ONE OF JUDGMENT IN POSITION EVALUATION. NEITHER THE FACTS OF RECORD BEFORE US NOR OUR JURISDICTION PROVIDES A BASIS FOR REDETERMINATION OF A POSITION CLASSIFICATION DECISION. THAT AUTHORITY RESTS WITH THE ADMINISTRATIVE AGENCY AND THE CIVIL SERVICE COMMISSION. SEE 37 COMP. GEN. 492 AT 494 (1958), COPY ENCLOSED.

AS NOTED ABOVE IN THE SECOND AND THIRD QUOTED PARAGRAPHS, YOUR PROMOTION FROM GS-12 TO 13 WAS EFFECTED TIMELY WITHIN THE APPLICABLE REGULATIONS. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE ACTION AS STATED IN OUR LETTER OF JUNE 17, 1970.