B-179896, AUG 20, 1974

B-179896: Aug 20, 1974

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EMPLOYEE WHO CLAIMS TO HAVE BEEN DETAILED TO UNCLASSIFIED DUTIES AFTER MARCH 6. PROVIDES FOR PROSPECTIVE EFFECT ONLY OF SUCH RECLASSIFICATION DECISIONS AND EMPLOYEE IS ENTITLED ONLY TO COMPENSATION OF POSITION TO WHICH APPOINTED. AT WHICH LATER DATE HE WAS PROMOTED TO A GRADE GS 12. THE EMPLOYEE MAINTAINED THAT HE WAS QUALIFIED FOR A GRADE GS-12 AND THAT THE INCREASE IN HIS RESPONSIBILITIES AT THE OUTPATIENT CLINIC WARRANTED THE CLASSIFICATION OF HIS POSITION AT THAT GRADE. HE WAS PROMOTED TO THAT GRADE ON FEBRUARY 17. BERGANTINO'S CLAIM WAS THAT THE VETERANS ADMINISTRATION HAD IMPROPERLY DETAILED HIM FOR A PERIOD IN EXCESS OF THE 120 DAY LIMITATION PRESCRIBED BY 5 U.S.C. 3341 TO A POSITION WITH RESPONSIBILITIES IN EXCESS OF THOSE OF THE POSITION TO WHICH HE HELD AN APPOINTMENT.

B-179896, AUG 20, 1974

EMPLOYEE WHO CLAIMS TO HAVE BEEN DETAILED TO UNCLASSIFIED DUTIES AFTER MARCH 6, 1972, IN EXCESS OF 120 DAYS SPECIFIED IN SUBCHAPTER 1-6, CHAPTER 511 OF THE FEDERAL PERSONNEL MANUAL (FPM) AND WHO SECCESSFULLY HAD POSITION RECLASSIFIED GS-12 EFFECTIVE JANUARY 16, 1973, MAY NOT BE PAID RETROACTIVE COMPENSATION FOR PRIOR PERIOD. SINCE SUBCHAPTER 7, CHAPTER 511, FPM, PROVIDES FOR PROSPECTIVE EFFECT ONLY OF SUCH RECLASSIFICATION DECISIONS AND EMPLOYEE IS ENTITLED ONLY TO COMPENSATION OF POSITION TO WHICH APPOINTED, ALTHOUGH HE MAY PERFORM HIGHER GRADE DUTIES.

LEONARD D. BERGANTINO - RETROACTIVE EFFECT OF CLASSIFICATION APPEAL DECISION:

BY HIS LETTER DATED SEPTEMBER 18, 1973, MR. LEONARD D. BERGANTINO HAS APPEALED THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED SEPTEMBER 5, 1973 OF HIS CLAIM FOR RETROACTIVE PAY FOR THE PERIOD FROM JULY 6, 1972, TO JANUARY 16, 1973.

MR. BERGANTINO'S CLAIM ARISES OUT OF THE CIRCUMSTANCES OF HIS ASSIGNMENT TO THE MENTAL HYGEINE CLINIC, DOWNTOWN OUTPATIENT CLINIC UNIT, AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, SAN DIEGO, CALIFORNIA, FOR THE PERIOD BEGINNING MARCH 6, 1972, AND ENDING FEBRUARY 16, 1973, AT WHICH LATER DATE HE WAS PROMOTED TO A GRADE GS 12. THE RECORD SHOWS THAT ON OCTOBER 12, 1972, THE SAN FRANCISCO REGION OF CIVIL SERVICE COMMISSION RECEIVED MR. BERGANTINO'S APPEAL OF THE CLASSIFICATION APPEAL, THE EMPLOYEE MAINTAINED THAT HE WAS QUALIFIED FOR A GRADE GS-12 AND THAT THE INCREASE IN HIS RESPONSIBILITIES AT THE OUTPATIENT CLINIC WARRANTED THE CLASSIFICATION OF HIS POSITION AT THAT GRADE. THAT APPEAL INCLUDED HIS REQUEST THAT THE CHANGE IN THE CLASSIFICATION OF HIS POSITION BE APPROVED RETROACTIVE TO JUNE 28, 1972, THE DATE OF HIS COMPLETION OF ONE YEAR OF DOCTORAL EXPERIENCE. UPON REEXAMINATION OF HIS POSITION, THE CIVIL SERVICE COMMISSION DETERMINED THAT THE NATURE OF HIS ASSIGNMENT AND THE LEVEL OF HIS RESPONSIBILITY MET THE GRADE GS-12 STANDARDS AND CERTIFIED THE POSITION AS A GRADE GS-12 EFFECTIVE JANUARY 16, 1973. HE WAS PROMOTED TO THAT GRADE ON FEBRUARY 17, 1973.

IN CONSIDERING HIS CLAIM FOR RETROACTIVE COMPENSATION, OUR TRANSPORTATION AND CLAIMS DIVISION UNDERSTOOD THAT THE BASIS OF MR. BERGANTINO'S CLAIM WAS THAT THE VETERANS ADMINISTRATION HAD IMPROPERLY DETAILED HIM FOR A PERIOD IN EXCESS OF THE 120 DAY LIMITATION PRESCRIBED BY 5 U.S.C. 3341 TO A POSITION WITH RESPONSIBILITIES IN EXCESS OF THOSE OF THE POSITION TO WHICH HE HELD AN APPOINTMENT. IN ADDRESSING THAT CONTENTION, THAT DIVISION HELD:

"IT HAS LONG BEEN THE RULE OF THIS OFFICE AND OF THE COURTS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED EVEN THOUGH HE MAY BE ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION, 41 COMP. GEN. 497; GANSE V. UNITED STATES, 180 CT. CL. 183 (1967); PRICE V. UNITED STATES, 112 CT. CL. 198 (1948); AND ACASES CITED THEREIN. WE FIND NO PROVISION OF LAW WHICH AUTHORIZES THE RETROACTIVE PROMOTION OF AN EMPLOYEE BASED UPON THE FAILURE OF HIS EMPLOYING AGENCY TO PROMOTE HIM TO A POSITION TO WHICH HE MAY BE DETAILED CONTRARY TO ADMINISTRATIVE REGULATIONS. FURTHER, THE STATUTORY AUTHORITY TO DETAIL EMPLOYEES FOR LIMITED PERIODS AS CONTAINED IN 5 U.S.C. 3341 HAS NOT BEEN VIEWED AS AUTHORIZING RETROACTIVE PAY FOR EMPLOYEES WHO HAVE HAD DETAILS EXTENDED BEYOND THE TIME LIMIT IMPOSED THEREBY.

"VIEW OF THE ABOVE, AND SINCE THE RECORDS ESTABLISH THAT YOUR POSITION WAS CLASSIFIED AS GS-11 UNITL JANUARY 16, 1973, WHEN IT WAS RECLASSIFIED BY THE CIVIL SERVICE COMMISSION AS GS-12, AND THAT YOU WERE TIMELY PROMOTED TO THAT GRADE EFFECTIVE FEBRUARY 17, 1973, IT APPEARS THAT NO ADMINISTRATIVE ERROR HAS BEEN COMMITTED. THEREFORE, YOUR CLAIM FOR RETROACTIVE ADJUSTMENT OF COMPENSATION FOR THE PERIOD JULY 6, 1972, THROUGH FEBRUARY 16, 1973, MAY NOT BE ALLOWED."

MR. BERGANTINO NOW EXPLAINS THAT OUR TRANSPORTATION AND CLAIMS DIVISION HAS MISCONSTRUED THE BASIS OF HIS CLAIM. IN CLARIFYING THE ISSUE FOR THE PURPOSE OF HIS APPEAL, MR. BERGANTINO STATES:

"THE ISSUE IS THAT I NEVER HAD A POSITION DESCRIPTION. THE ADMINISTRATIVE RULES STATE THAT A POSITION IS SUPPOSED TO BE CLASSIFIED WITHIN 120 DAY LIMIT. THE VA MADE AN ERROR IN REFUSING TO CLASSIFY MY POSITION AND REFUSING TO GIVE ME ANY POSITION DESCRIPTION. NO POSITION DESCRIPTION EXISTED AT THE VA OUTPATIENT CLINIC BECAUSE I WAS ASSIGNED TO A JOB THAT DIDN'T EXIST.

"THEREFORE, MY CLAIM IS THAT MY PAY SHOULD BE MADE RETROACTIVE IN ACCORD WITH THE 120 DAY LIMIT (MARCH 6, TO JULY 6, 1972) AS OF JULY 6, 1972. THE CIVIL SERVICE COMMISSION CLASSIFIED THE POSITION A GS-12, BUT THE ISSUE WAS NOT HAVING ANY POSITION DESCRIPTION UNTIL THAT IME (JANUARY 16, 1973)."

MR. BERGANTINO EXPRESSES THE FURTHER BELIEF THAT HIS ASSIGNMENT BEGINNING MARCH 6, 1972, TO THE OUTPATIENT CLINIC WAS ILLEGAL FOR THE REASON THAT HE WAS FORMALLY ASSIGNED TO THE VETERANS ADMINISTRATION HOSPITAL, SAN DIEGO, WHEREAS PRIOR TO JULY 1, 1972, THE OUTPATIENT CLINC WAS AFFILIATED WITH THE VETERANS ADMINISTRATION HOSPITAL, LOS ANGELES. IN REGARD TO MR. BERGANTINO'S CONTENTION THAT HIS ASSIGNMENT AS AN EMPLOYEE OF THE VA HOSPITAL, SAN DIEGO, TO AN AFFITLIATE UNIT OF THE VA HOSPITAL, LOS ANGELES WAS IMPROPER, WE POINT OUT THAT SECTION 3341 OF TITLE 5 OF THE U.S. CODE SPECIFICALLY PROVIDES FOR DETAILING EXECUTIVE DEPARTMENT EMPLOYEES AMONG THE DEPARTMENT'S BUREAUS AND OFFICES. WHILE SUBSECTION 3341(B) DOES IMPOSE A 120 DAY LIMIT ON DETAILS AND REQUIRES THAT THEY BE MADE UNDER WRITTEN ORDER, WE HAVE HELD THAT THE FAILURE OF AGENCIES TO COMPLY WITH THOSE LIMITATIONS IS NOT A BASIS FOR PAYMENT OF BACK PAY, B-165730, JANUARY 17, 1969, B 178488, JUNE 21, 1973.

TURNING NOW TO MR. BERGANTINO'S CONTENTION THAT HIS POSITION SHOULD HAVE BEEN RECLASSIFIED ON JULY 6, 1972, WE NOTE THAT SUBCHAPTER 1-6 OF CHAPTER 511 OF THE FEDERAL PERSONNEL MANUAL (FPM) PROVIDES FOR CLASSIFICATION ACTION TO BE TAKEN IN REGARD TO DETAILED POSITIONS AS FOLLOWS:

"B. DETAILS TO DUTIES OR POSITIONS THAT HAVE NOT BEEN CLASSIFIED. EXTENDED DETAILS OF EMPLOYEES TO DUTIES OR POSITIONS THAT HAVE NOT BEEN CLASSIFIED CONFLICT WITH THE PRINCIPLES OF POSITION CLASSIFICATION. VIEW OF THIS, DETAILS MUST BE KEPT TO THE SHORTEST PRACTICAL TIME. UNDER NO CIRCUMSTANCES MAY THEY EXTEND BEYOND 120 DAYS COMMISSION. ***"

THE APPROPRIATE CHANNEL TO REDRESS AN AGENCY'S FAILURE TO COMPLY WITH THE ABOVE REQUIREMENT AND THAT WHICH MR. BERGANTINO PROPERLY PURSUED IS A CLASSIFICATION APPEAL UNDER THE PROCEDURES SET FORTH AT SUBCHAPTER 1-6 OF CHAPTER 511 OF THE FPM. AS TO THE EFFECTIVE DATES FOR DECISIONS UPON CLASSIFICATION APPEALS, SUBCHAPTER 7 OF CHAPTER 511 OF THE FPM PROVIDES:

"7-2. GENERAL RULE FOR EFFECTIVE DATES FOR APPEAL DECISIONS

"THE GENERAL RULE IS THAT A CHANGE BROUGHT ABOUT BY AN APPEAL DECISION TAKES EFFECT NO EARLIER THAN THE DATE OF THE APPEAL DECISION AND NO LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD FOLLOWING THE DATE OF DECISION UNLESS A LATER DATE IS SPECIFIED IN THE DECISION.

"7-3. RETROACTIVE EFFECTIVE DATES FOR APPEAL DECISIONS

"A. CONDITIONS. A CLASSIFICATION CHANGE RESULTING FROM AN APPEAL DECISION IS RETROACTIVE TO THE DATE OF THE ADVERSE ACTION WHEN ALL OF THE FOLLOWING CONDITIONS ARE MET:

"(1) THE APPEAL DECISION REVERSES, IN WHOLE OR IN PART, A CLASSIFICATION ACTION THAT LED TO A LOSS IN GRADE OR PAY;

"(2) THE APPEAL DECISION IS BASED ON DUTIES AND RESPONSIBILITIES EXISTING AT THE TIME OF THE ADVERSE CLASSIFICATION ACTION RATHER THAN ON ANY ASSIGNED LATER; AND

"(3) THE INITIAL APPEAL, WHETHER TO AN AGENCY OR TO THE COMMISSION, AND ANY SUBSEQUENT APPEALS ARE FILED ON A TIMELY BASIS AS DEFINED IN SUBCHAPTER 6 OF THIS CHARPTER."

UNLESS THE CIRCUMSTANCES OF AN EMPLOYEE'S CLASSIFICATION APPEAL MEET THE CONDITIONS SET FORTH AT SUBCHAPTER 7-3, QUOTED ABOVE, THERE IS NO AUTHORITY BY WHICH THE CIVIL SERVICE COMMISSION OR THIS OFFICE MAY GIVE RETROACTIVE EFFECT TO AN APPEAL DETERMINATION.

THE CASE OF DIANISH V. UNITED STATES, 183 CT. CL. 702 (1968), SIMILARLY INVOLVED AN EMPLOYEE WHOSE CLASSIFICATION APPEAL WAS FAVORABLY DETERMINED BY THE CIVIL SERVICE COMMISSION AND WHO HAD INITIALLY APPEALED TO THIS OFFICE FOR RETROACTIVE PAY ON THE BASIS OF THAT RECLASSIFICATION DETERMINATION FOR THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE CLASSIFICATION ACTION. IN DENYING THE EMPLOYEE'S CLAIM, WE STATED IN B- 140785, OCTOBER 19, 1959, AS FOLLOWS:

"THERE IS NOTHING IN THE FILE TO SHOW THAT THE POSITION YOU HELD WAS DOWNGRADED ILLEGALLY OR OTHERWISE. YOUR CASE INVOLVES THE INITIAL ADMINISTRATIVE CLASSIFICATON OF THE POSITION. AS INDICATED IN OUR SETTLEMENT OF JULY 16, 1959, THE MATTER OF DETERMINING THE PROPER ALLOCATION OF POSITION IN THE DEPARTMENTAL SERVICE IS VESTED IN THE ADMINISTRATIVE OFFICE CONCERNED, SUBJECT TO REVIEW BY THE CIVIL SERVICE COMMISSION. SEE SECTION 502 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 754 (5 U.S.C. SEC. 1102). THAT SECTION SPECIFICALLY SAYS THAT THE CLASSIFICATION ACTIONS OF THE DEPARTMENT 'SHALL BE THE BASIS FOR THE PAYMENT OF COMPENSATION AND FOR PERSONNEL TRANSACTIONS UNTIL CHANGED BY CERTIFICATE OF THE COMMISSION.' THEREFORE, THE GENERAL RULE IS THAT WHEN A POSITION HAS BEEN RECLASSIFIED TO A HIGHER GRADE AS THE RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION, THERE IS NO AUTHORITY TO MAKE THE SALARY RATE RETROACTIVELY EFFECTIVE. THE EFFECTIVE DATE OF THE SALARY CHANGE IS GOVERNED BY CHAPTER P2-20 OF THE FEDERAL PERSONNEL MANUAL REFERRED TO IN OUR SETTLEMENT OF JULY 16, 1959, AND AND CHAPTER P2-23, 5 CFR 36.1(C). AS INDICATED ABOVE, HOWEVER, THE RETROACTIVE PROVISION THEREIN COVERING DOWNGRADING ACTIONS WHEN AN APPEAL IS TAKEN WITHIN THE PRESCRIBED PERIOD IS NOT APPLICABLE TO YOUR CASE. THE POSITION IN QUESTION WAS AT NO TIME CLASSIFIED BY PROPER AUTHORITY IN GRADE GS-13 PRIOR TO THE COMMISSION'S ACTION ON YOUR APPEAL. THERE IS NO EVICENCE OF RECORD THAT THE CLASSIFICATON ACTION ORIGINALLY TAKEN IN YOUR CASE WAS OTHER THAN A BONA FIDE ACTION TAKEN UNDER THE AUTHORITY CONFERRED UPON YOUR AGENCY. MOREOVER, ONE WHO HOLDS A FEDERAL POSITION IS ENTITLED TO NO MORE THAT THE SALARY PRESCRIBED FOR THE POSITION OR OFFICE TO WHICH HE WAS APPOINTED REGARDLESS OF WHETHER HE PERFORMS THE DUTIES OF AN OFFICE OF HIGHER GRADE. SEE GEORGE L. COLEMAN V. UNITED SATES, 100 CT. CL. 41, AND CASES THERE CITED."

THE COURT OF CLAIMS IN THAT CASE AFFIRMED THE HOLDING BY THIS OFFICE THAT THERE WAS NO AUTHORITY TO GIVE RETROACTIVE EFFECT TO THE SALARY RATE AS DETERMINED UPON THE CLASSIFICATION APPEAL AND DENIED PLAINTIFF'S CLAIM.

IN LINE WITH THE FOREGOING ANALYSIS AND WITH THE HOLDING OF THE COURT OF CLAIMS IN THE DIANISH CASE, WE FIND NO BASIS TO AWARD MR. BERGANTINO COMPENSATION BASED ON THE RECLASSIFICATION OF HIS POSITION AS A GS-12 FOR ANY PERIOD OF THE TIME PRIOR TO THE EFFECTIVE DATE OF THE CLASSIFICATION ACTION.