B-180056, MAY 28, 1974

B-180056: May 28, 1974

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CIVILIAN EMPLOYEE OF THE ARMY WAS GIVEN NONCOMPETITIVE PROMOTION FOLLOWING THE RECOMMENDATION OF A GRIEVANCE EXAMINER. CLAIM FOR BACK PAY IS DENIED BECAUSE CLASSIFICATION OF PROMOTION IN EITHER OF THE ABOVE CATEGORIES IS A DISCRETIONARY FUNCTION OF THE AGENCY INVOLVED. BACK PAY IS JUSTIFIED ONLY WHERE THERE IS A BREACH OF SOME NONDISCRETIONARY FUNCTION OR DUTY. THAT AS A RESULT OF A DESK SURVEY IN 1969 HIS POSITION WAS ESTABLISHED AT THE GS-12 LEVEL. JACOBS WAS NOT MADE AND THE POSITION WAS REESTABLISHED AT THE GS-11 LEVEL. JACOBS HIS POSITION WAS ESTABLISHED AT THE GS-12 LEVEL AND HE WAS PROMOTED AUGUST 5. JACOBS' CLAIM FOR RETROACTIVE PAY WAS DISALLOWED BECAUSE FAILURE TO PROMOTE IS NOT AN ADMINISTRATIVE ERROR ENTITLING HIM TO BACK PAY.

B-180056, MAY 28, 1974

CIVILIAN EMPLOYEE OF THE ARMY WAS GIVEN NONCOMPETITIVE PROMOTION FOLLOWING THE RECOMMENDATION OF A GRIEVANCE EXAMINER. EMPLOYEE CLAIMED BACK PAY ON THE GROUNDS THAT THE ARMY HAD WRONGLY AND DELIBERATELY CLASSIFIED PRIOR PROMOTION EFFORTS AS "PLANNED MANAGEMENT CHANGES" INSTEAD OF "JOB EVOLUTION," THUS PREVENTING EMPLOYEE'S PROMOTION ON A NONCOMPETITIVE BASIS AT AN EARLIER DATE. CLAIM FOR BACK PAY IS DENIED BECAUSE CLASSIFICATION OF PROMOTION IN EITHER OF THE ABOVE CATEGORIES IS A DISCRETIONARY FUNCTION OF THE AGENCY INVOLVED. BACK PAY IS JUSTIFIED ONLY WHERE THERE IS A BREACH OF SOME NONDISCRETIONARY FUNCTION OR DUTY.

TO MR. LOUIS L. JACOBS:

MR. LOUIS L. JACOBS, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, DIRECTORATE OF PERSONNEL AND COMMUNITY ACTIVITIES (DPCA), EDUCATION BRANCH, FORT POLK, LOUISIANA, HAS APPEALED THE SETTLEMENT ISSUED BY THE TRANSPORTATION AND CLAIMS DIVISION OF THE U.S. GENERAL ACCOUNTING OFFICE, ON SEPTEMBER 14, 1973, WHICH DISALLOWED HIS CLAIM FOR BACK PAY FOR THE PERIOD DECEMBER 18, 1969, TO AUGUST 5, 1973.

THE RECORD INDICATES THAT MR. JACOBS OCCUPIED THE POSITION OF ASSISTANT EDUCATION DIRECTOR, GS-11, AND THAT AS A RESULT OF A DESK SURVEY IN 1969 HIS POSITION WAS ESTABLISHED AT THE GS-12 LEVEL. HOWEVER, THE RECOMMENDED PROMOTION OF MR. JACOBS WAS NOT MADE AND THE POSITION WAS REESTABLISHED AT THE GS-11 LEVEL. AS THE RESULT OF A GRIEVANCE ACTION FILED BY MR. JACOBS HIS POSITION WAS ESTABLISHED AT THE GS-12 LEVEL AND HE WAS PROMOTED AUGUST 5, 1973. MR. JACOBS' CLAIM FOR RETROACTIVE PAY WAS DISALLOWED BECAUSE FAILURE TO PROMOTE IS NOT AN ADMINISTRATIVE ERROR ENTITLING HIM TO BACK PAY. MR. JACOBS REQUESTED REVIEW ON THE GROUND THAT HIS PROMOTION WAS IMPROPERLY DELAYED AND THAT THE UPGRADING OF HIS POSITION WAS DELIBERATELY CLASSIFIED AS A "PLANNED MANAGEMENT ACTION" RATHER THAN "JOB EVOLUTION," THUS PREVENTING HIS NONCOMPETITIVE PROMOTION. IN ORDER TO PROPERLY RESOLVE THE ISSUES INVOLVED, IT IS NECESSARY TO TRACE THE HISTORY OF MR. JACOBS' POSITION FROM ITS INCEPTION.

EXHIBIT 3 TO THE "REPORT OF FINDINGS AND RECOMMENDATIONS IN THE GRIEVANCE OF MR. LOUIS L. JACOBS," IS A MEMORANDUM PREPARED FOR COLONEL TURLEY, THEN HEAD OF DPCA, BY JANICE P. DRODDY, CHIEF POSITION AND PAY MANAGEMENT BRANCH (PPM), DATED JANUARY 25, 1973, WHICH SETS OUT A DETAILED HISTORY OF MR. JACOBS' POSITION. THE POSITIONS OF DIRECTOR, GS-11, AND ASSISTANT DIRECTOR, GS-9, OF THE EDUCATION DIVISION, WERE CREATED IN OCTOBER 1961. IN DECEMBER 1962 THE JOB DESCRIPTIONS WERE REWRITTEN SO THAT THE DIRECTOR WAS RECLASSIFIED AT GS-12 AND THE ASSISTANT DIRECTOR AT GS-11. SEPTEMBER 1965 THE DIRECTOR DETERMINED THAT A FULL ASSISTANT WAS NOT REQUIRED AND THE ASSISTANT DIRECTOR POSITION WAS DOWNGRADED TO EDUCATION ASSISTANT, GS-7. IN DECEMBER 1966 THE POSITION WAS UPGRADED TO GS-9, EDUCATION OFFICER, AND THE INCUMBENT WAS PROMOTED. IN MARCH 1967 THE TITLE OF THE POSITION WAS CHANGED TO EDUCATION SERVICES OFFICER, WITH NO CHANGE IN GRADE. MR. JACOBS WAS APPOINTED TO THE GS-9, EDUCATION SERVICES OFFICER POSITION, ON JUNE 16, 1967. AT THAT TIME THE REPORT STATES THAT THE "NON-SUPERVISORY DUTIES WERE GRADED AT THE GS-7 LEVEL WITH DUTIES AS ASSISTANT EDUCATION DIRECTOR EVALUATED AT THE GS-9 LEVEL." BECAUSE OF AN ENLARGED PROGRAM THE POSITION OF EDUCATION DIRECTOR WAS UPGRADED TO GS-13 ON JUNE 4, 1967. THE ASSISTANT DIRECTOR POSITION ALSO CONTINUED TO GROW IN RESPONSIBILITY, WITH MR. JACOBS BEING PROMOTED TO GS-11 EFFECTIVE JULY 28, 1968.

THE MEMO FOR COLONEL TURLEY NOTES, IN PARAGRAPH 6, THAT:

"AS PART OF THE EVALUATION OF JOB #4800-S, EDUCATION SERVICES OFFICER, GS -1710-11, DATED 23 JULY 68, THE SUPERVISOR'S PERFORMANCE CHECK LIST REFLECTS AUTHORITY FOR RECOMMENDATION FOR 38 DUTIES. ONLY FOUR ITEMS WERE CHECKED TO REFLECT FINAL ACTION, I.E. DAY-TO-DAY WORK PLANS, INTERVIEW APPLICANTS, ORIENT NEW EMPLOYEES, AND SECURE EMERGENCY MEDICAL TREATMENT FOR SUBORDINATES. THE EDUCATION DIRECTOR CERTIFIED TO THE ASSIGNMENT OF DEGREE OF AUTHORITY INDICATED ON 23 JUL 68. THE INCUMBENT, MR. LOUIS L. JACOBS, ALSO SIGNED THE STATEMENT AS FOLLOWS: 'I UNDERSTAND AND AM PERFORMING WITH THE INDICATED DEGREE OF AUTHORITY THE RESPONSIBILITIES FOR EACH DUTY LISTED ABOVE.' THE EVALUATION STATEMENT REFLECTS CRITERIA FOR DETERMINING THE GRADE OF THIS POSITION IN ACCORDANCE WITH THE GS-1710-1712 STANDARD AND DOES NOT CONTAIN DATA PERTINENT TO THE SUPERVISORY GRADE EVALUATION GUIDE OR OTHER EVALUATION CRITERIA REFLECTING PROVISIONS FOR FULL ASSISTANT POSITIONS."

FOLLOWING THE 1969 ANNUAL POSITION SURVEY, MR. JACOBS' JOB DESCRIPTION WAS REWRITTEN AS A FULL ASSISTANT TO THE EDUCATION DIRECTOR AND WAS CLASSIFIED AT THE GS-12 LEVEL. WHEN THIS WAS DONE IN JANUARY 1970 THE CHANGE WAS CHARACTERIZED AS A "PLANNED MANAGEMENT CHANGE." ON FEBRUARY 24, 1970, THE JOB DESCRIPTION WAS REVISED TO SHOW A DUAL FUNCTION, AS CHIEF, EDUCATION PROGRAM BRANCH, AND AS ASSISTANT TO THE EDUCATION DIRECTOR. ON MARCH 11, 1970, THE PAPERWORK WAS RELEASED FOR RECRUITMENT AND PLACEMENT ACTION, WITH THE INTENT TO PROMOTE MR. JACOBS. HOWEVER, SINCE THE UPGRADING WAS A "PLANNED MANAGEMENT CHANGE," THE JOB HAD TO BE FILLED ON A COMPETITIVE BASIS. THERE WERE SEVERAL NAMES ON THE "STOPPER LIST," OTHER EMPLOYEES APPARENTLY WOULD HAVE TAKEN PRECEDENCE OVER MR. JACOBS, AND RECRUITMENT ACTION WAS STOPPED. IN A LETTER DATED JUNE 5, 1970, THE EDUCATION DIRECTOR, DONALD O. THOMPSON, REQUESTED THAT MR. JACOBS' POSITION BE REDUCED TO GS-11. THE MAJOR REASON FOR THE REQUEST WAS STATED AS FOLLOWS:

"DUE TO BUDGETARY LIMITATIONS ARMY WIDE RESULTING IN PERSONNEL TURBULENCE THIS UPGRADING WILL RESULT IN AN ADVERSE SITUATION IN THE CASE OF MR. JACOBS AND COULD VERY WELL RESULT IN LOSS OF HIS POSITION."

IT IS STATED IN MR. THOMPSON'S LETTER THAT MR. JACOBS CONCURRED WITH THE REQUEST THAT THE POSITION BE RETURNED TO THE GS-11 LEVEL. ON JULY 1, 1970, THE REQUEST THAT THE POSITION BE UPGRADED WAS RETURNED TO MR. THOMPSON WITHOUT ACTION.

IN DISCUSSING THE REASONS FOR CHARACTERIZING THE UPGRADING AS A "PLANNED MANAGEMENT CHANGE," THE JANUARY 25, 1973, MEMORANDUM FOR COLONEL TURLEY GAVE THE FOLLOWING REASONS, AMONG OTHERS:

"A NUMBER OF FACTORS ENTERED INTO THE DECISION TO PROCESS THIS UPGRADE AS PLANNED MANAGEMENT CHANGE. ONE FACTOR WAS THE COMPTROLLER, MANAGEMENT ANALYSIS STUDY THAT RESULTED IN THE RESTRUCTURING OF THE ORGANIZATION INTO TWO BRANCHES, I.E. EDUCATION PROGRAMS BRANCH AND ADMINISTRATIVE BRANCH. UPON ESTABLISHMENT OF SUBJECT POSITION AS CHIEF, EDUCATION PROGRAMS AND IN DUAL CAPACITY AS ASSISTANT EDUCATION OFFICER, THIS REFLECTS A PLANNED MANAGEMENT CHANGE. ANOTHER FACTOR THAT ENTERED INTO THE DECISION WAS THE HISTORY OF THE POSITION AS NOTED IN PARAGRAPH 3 WHEREIN THE EDUCATION DIRECTOR MADE THE DETERMINATION THAT A FULL ASSISTANT WAS NOT NEEDED AND ABOLISHED THE POSITION. IN VIEW OF THE ADVERSE ACTION CAUSED BY THIS PLANNED MANAGEMENT CHANGE, IT FOLLOWS THROUGH THAT RE-ESTABLISHING THE FULL ASSISTANT WAS ALSO A PLANNED MANAGEMENT CHANGE. ***"

TWO OTHER POINTS ARE MADE IN JUSTIFYING THE CHARACTERIZATION OF THE UPGRADING AS A "PLANNED MANAGEMENT CHANGE," BUT THEY ARE DISPUTED BY MR. JACOBS AND, IN ANY EVENT, THEY ARE NOT RELEVANT TO A DECISION IN THIS MATTER.

IN A LETTER DATED SEPTEMBER 1, 1971, FROM MR. JACOBS TO COMMANDER, UNITED STATES ARMY TRAINING CENTER (USATC), INFANTRY AND FORT POLK, THRU "CHANNELS," MR. JACOBS REQUESTED THAT THE FAILURE TO PROMOTE HIM TO GS-12 BE INVESTIGATED. IN ADDITION, HE STATED THAT:

"I AM NOT BEING CRITICAL NOR DO I FEEL ANY PERSONAL DISCRIMINATION, RATHER I FEEL THAT I AM JUST A VICTIM OF CIRCUMSTANCE."

MR. JACOBS LATER WITHDREW THIS LETTER. HOWEVER, IT IS IMPORTANT TO NOTE THAT HE SPECIFICALLY STATED THAT HE HAD NOT SUFFERED FROM ANY DISCRIMINATION.

THE RECORD IS IN CONFLICT OVER WHAT OCCURRED NEXT. ACCORDING TO MR. JACOBS' AFFIDAVIT, AN ATTEMPT TO UPGRADE HIS POSITION TO GS-12 WAS MADE IN AUGUST 1971 BUT THE ATTEMPT FAILED BECAUSE OF AN ARMY-WIDE POLICY OF STOPPING ALL GRADE INCREASES AT THAT TIME. ACCORDING TO EXHIBIT 6 TO THE GRIEVANCE HEARING REPORT, WHICH IS A MEMORANDUM FROM COLONEL TURLEY DATED FEBRUARY 9, 1973, THE ABOVE EVENT OCCURRED IN JULY 1972. IN EITHER CASE MR. JACOBS' POSITION REMAINED AT THE GS-11 LEVEL. IN THE FALL OF 1972 EFFORTS TO RAISE THE POSITION TO GS-12 WERE AGAIN INITIATED. IN THIS CONNECTION THE JANUARY 25, 1973 MEMORANDUM TO COLONEL TURLEY, IN PARAGRAPH 13, DESCRIBES WHAT HAPPENED NEXT:

"ALTHOUGH POSITION AND PAY HAD MADE A TENTATIVE DECISION TO PROCESS THE UPGRADE AS A RECONSTITUTED POSITION BASED ON THE LENGTH OF TIME INCUMBENT HAS SERVED AS AN ASSISTANT, THERE WERE DOUBTS AS TO THE LEGALITY OF PROMOTION AS AN EXCEPTION TO THE MERIT PROMOTION PLAN. THIS QUESTION WAS POSED TO FIFTH U.S. ARMY ON 13 DEC 72 AND THE DECISION GIVEN BY FIFTH ARMY IS THAT THE POSITION IS DEFINITELY THE RESULT OF A PLANNED MANAGEMENT ACTION WHERE DUTIES WERE RESTRUCTURED AS A DEPUTY POSITION. IT WAS ALSO POINTED OUT THAT DEPUTY POSITIONS ARE THE EXCEPTION RATHER THAN THE RULE AND REQUIRE APPROVAL BY COMPTROLLER AND MANPOWER. APPROVAL WAS RECEIVED BY THOSE OFFICES TO ESTABLISH A DEPUTY POSITION. IT WAS FURTHER POINTED OUT BY FIFTH ARMY THAT MANAGEMENT MADE THE DECISION TO ESTABLISH A FULL ASSISTANT POSITION; THEN MADE THE DECISION TO WITHDRAW THIS REQUEST; THEN FAILED TO LIMIT INCUMBENT'S RESPONSIBILITY RESULTING IN A MISASSIGNMENT. IT WOULD BE A VIOLATION TO CORRECT MIS-ASSIGNMENT BY ESTABLISHING A DEPUTY POSITION AND PROMOTING INCUMBENT AS A RECONSTITUTED POSITION."

THE COMMAND FOLLOWED THE ADVICE GIVEN BY FIFTH ARMY AND THE UPGRADING OF MR. JACOBS' POSITION WAS BEGUN AS A "PLANNED MANAGEMENT CHANGE," WITH RECRUITMENT TO BE ON A COMPETITIVE BASIS.

ON MARCH 16, 1973, MR. JACOBS FILED A GRIEVANCE WITH THE COMMANDER, USATC, INFANTRY AND FORT POLK. HE REQUESTED:

"A. THAT THE RECORDS AT FORT POLK, FIFTH U.S. ARMY, UNITED STATES CONTINENTAL ARMY COMMAND, AND DEPARTMENT OF THE ARMY BE CORRECTED TO ACCURATELY REFLECT THE DUTIES I HAVE BEEN PERFORMING AND THE CORRECT GRADE LEVEL OF THE DUTIES PERFORMED.

"B. THAT I RECEIVE PROPER REDRESS TO WHICH I MIGHT BE ENTITLED UNDER LAW, REGULATION, AND SOUND MANAGEMENT PRACTICES."

THE GRIEVANCE EXAMINER'S REPORT, DATED JULY 17, 1973, REACHED THE CONCLUSION AND MADE THE RECOMMENDATION SET OUT BELOW:

"III CONCLUSION

"THE POSITION OF DEPUTY EDUCATION DIRECTOR AT THE GS-12 LEVEL WAS THE RESULT OF JOB EVOLUTION AND NOT ANY OVERT PLANNED ACTION ON THE PART OF MANAGEMENT.

"IV RECOMMENDATION

"IT IS MY RECOMMENDATION THAT THE GRIEVANT BE PROMOTED NON COMPETITIVELY TO THE POSITION OF EDUCATION SERVICES OFFICER, GS-1710 12, JOB NO. 5786- S."

THIS RECOMMENDATION WAS ACCEPTED BY THE COMMAND, AND MR. JACOBS WAS PROMOTED TO GS-12 EFFECTIVE AUGUST 5, 1973.

THE GENERAL RULE IS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS ACTUALLY APPOINTED REGARDLESS OF THE DUTIES HE PERFORMS. WHEN AN EMPLOYEE PERFORMS DUTIES AT A GRADE LEVEL HIGHER THAN THE ONE HE HOLDS, HE IS NOT ENTITLED TO THE SALARY OF THE HIGHER LEVEL UNLESS AND UNTIL HE IS SUCCESSFUL IN OBTAINING RECLASSIFICATION OF HIS POSITION AND PROMOTION TO THE HIGHER LEVEL. DIANISH ET AL. V. UNITED STATES, 183 C. CLS. 702 (1968); COLEMAN V. UNITED STATES, 100 C. CLS. 41 (1943); 52 COMP. GEN. 631 (1973). AN EXCEPTION TO THIS RULE IS CREATED BY 5 U.S.C. 5596, WHICH PROVIDES, IN PERTINENT PART:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

IN DEFINING WHAT CONSTITUTES AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION," WE HAVE HELD THAT THESE TERMS WOULD INCLUDE A CLERICAL OR ADMINISTRATIVE ERROR THAT PREVENTED A PERSONNEL ACTION FROM OCCURRING AS INTENDED, OR THE DEPRIVATION OF AN EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION, OR THE FAILURE TO CARRY OUT NONDISCRETIONARY REGULATIONS OR POLICIES. SEE B-175372, APRIL 13, 1972, AND B-179207, NOVEMBER 21, 1973. THE KEY IN EACH OF THE ABOVE INSTANCES IS THE FAILURE TO COMPLY WITH OR FAILURE TO CARRY OUT SOME MANDATORY REGULATION OR POLICY. THEREFORE, UNLESS THE AGENCY'S ACTIONS FIT WITHIN THE GENERAL DEFINITION OF "ADMINISTRATIVE ERROR" GIVEN PREVIOUSLY, THERE IS NO BASIS FOR THE RECOVERY OF BACK PAY.

IT IS WELL SETTLED THAT THE POWER TO APPOINT AND TO PROMOTE CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT IS AN EXECUTIVE FUNCTION AND LIES WITHIN THE DISCRETION OF THE HEAD OF THE EMPLOYING AGENCY. TIERNEY V. UNITED STATES, 168 C. CLS. 77 (1964); NORDSTROM V. UNITED STATES, 177 C. CLS. 818 (1966). THEREFORE, UNTIL MR. JACOBS' POSITION WAS CLASSIFIED UPWARD AND HE WAS PROMOTED, HE WAS NOT ENTITLED TO THE PAY OF THE HIGHER RATED POSITION. SEE DIANISH CITED ABOVE. REGARDING THE QUESTION AS TO WHETHER MR. JACOBS WAS ENTITLED TO A PROMOTION WITHOUT COMPETITION, THE FEDERAL PERSONNEL MANUAL, CHAPTER 335, SUBCHAPTER 4 2(D), STATES THAT:

"AN AGENCY MAY MAKE A CAREER PROMOTION OF AN EMPLOYEE WHOSE POSITION IS RECONSTITUTED IN A HIGHER GRADE BECAUSE OF THE ACCRETION OF ADDITIONAL DUTIES AND RESPONSIBILITIES IF THE ACCRETION WAS NOT THE RESULT OF PLANNED MANAGEMENT ACTION."

THE HISTORY OF MR. JACOBS' POSITION DEMONSTRATES THAT ITS GRADE HAS BEEN MOVED BOTH UP AND DOWN SO MANY TIMES THAT IT IS NOT DIFFICULT TO SEE WHY THE COMMAND AND FIFTH ARMY DECIDED THAT THE LATEST UPGRADE SHOULD BE CLASSIFIED AS A "PLANNED MANAGEMENT CHANGE." WITHOUT A COMPLETE HISTORY OF THE EDUCATION PROGRAM CLEARLY SHOWING PARALLEL CHANGES IN THE SIZE, CONTENT, AND/OR COMPLEXITY OF THE PROGRAM, IT IS DIFFICULT TO SEE HOW THEY COULD DO OTHERWISE. HOWEVER, THERE IS NOTHING IN THE RECORD TO SHOW THAT THE VARIOUS CHANGES IN THE POSITION WERE MADE IN SUCH A MANNER TO DEPRIVE MR. JACOBS OF ENTITLEMENT TO PROMOTION WITHOUT COMPETITION OR THAT SUCH CHANGES WERE ANYTHING OTHER THAN DISCRETIONARY IN NATURE. THE FACT THAT MR. JACOBS' NONCOMPETITIVE PROMOTION WAS MADE BECAUSE OF THE RECOMMENDATION OF THE GRIEVANCE EXAMINER IS NOT SUFFICIENT IN AND OF ITSELF TO JUSTIFY THE PAYMENT OF BACK PAY. SEE DIANISH CITED ABOVE.

WE CAN FIND NO INSTANCE IN THE RECORD WHERE THE AGENCY FAILED TO PERFORM A NONDISCRETIONARY FUNCTION OR FAILED TO COMPLY WITH A STATUTE OR MANDATORY REGULATION. THEREFORE, THE SETTLEMENT BY THE TRANSPORTATION AND CLAIMS DIVISION IS AFFIRMED.