B-180561, AUG 8, 1974

B-180561: Aug 8, 1974

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EMPLOYEE IS NOT ENTITLED TO ADDITIONAL PAY FOR PERIOD FROM APRIL 11. ON THE BASIS OF ERRONEOUS REPRESENTATIONS MADE DURING INTERVIEW THAT SALARY OF POSITION TO WHICH HE WAS APPOINTED WAS $3. WHEN IN FACT THE SALARY WAS $3. UNTIL IT WAS RAISED TO $3. HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER LAW AND ERRONEOUS REPRESENTATIONS BY GOVERNMENT OFFICIALS CANNOT INCREASE THAT ENTITLEMENT. MCCOY - CLAIM FOR ADDITIONAL PAY: THIS ACTION IS UPON THE REQUEST OF MR. MCCOY EXPLAINS THAT WHEN HE WAS INTERVIEWED FOR THE POSITION OF MESSENGER. HE WAS ADVISED THAT THE PER ANNUM SALARY FOR THAT POSITION WAS $3. THE SALARY FOR THAT POSITION WAS $3. THE SALARY RATE FOR THAT POSITION WAS RAISED TO $3.

B-180561, AUG 8, 1974

EMPLOYEE IS NOT ENTITLED TO ADDITIONAL PAY FOR PERIOD FROM APRIL 11, 1966 TO JULY 3, 1966, ON THE BASIS OF ERRONEOUS REPRESENTATIONS MADE DURING INTERVIEW THAT SALARY OF POSITION TO WHICH HE WAS APPOINTED WAS $3,925, WHEN IN FACT THE SALARY WAS $3,814 ON THE APRIL 11, 1966 DATE OF APPOINTMENT, UNTIL IT WAS RAISED TO $3,925, ON JULY 3, 1966. WHERE EMPLOYEE HAS RECEIVED SALARY OF POSITION TO WHICH APPOINTED, HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER LAW AND ERRONEOUS REPRESENTATIONS BY GOVERNMENT OFFICIALS CANNOT INCREASE THAT ENTITLEMENT.

CLIFTON E. MCCOY - CLAIM FOR ADDITIONAL PAY:

THIS ACTION IS UPON THE REQUEST OF MR. CLIFTON E. MCCOY FOR RECONSIDERATION OF THAT PORTION OF THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION, BY ITS SETTLEMENT CERTIFICATE DATED OCTOBER 26, 1973, IN DISALLOWING HIS CLAIM FOR ADDITIONAL COMPENSATION FOR THE PERIOD FROM APRIL 11, 1966, THROUGH JULY 3, 1966.

MR. MCCOY EXPLAINS THAT WHEN HE WAS INTERVIEWED FOR THE POSITION OF MESSENGER, GRADE GS-2, STEP 1, AT THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, HE WAS ADVISED THAT THE PER ANNUM SALARY FOR THAT POSITION WAS $3,925. IN FACT AT THE DATE OF HIS APPOINTMENT TO THAT POSITION ON APRIL 11, 1966, THE SALARY FOR THAT POSITION WAS $3,814 PER ANNUM. ON JULY 3, 1966, THE SALARY RATE FOR THAT POSITION WAS RAISED TO $3,925.

THE EMPLOYEE NOW CLAIMS THE DIFFERENCE BETWEEN THE $3,925 SALARY AND THE LESSER PER ANNUM SALARY OF $3,814 FOR THE PERIOD BETWEEN APRIL 11, 1966, AND JULY 3, 1966, DURING WHICH HE RECEIVED THE LOWER RATE OF PAY. EXPLAINING THE BASIS FOR HIS CLAIM, MR. MCCOY STATES:

"*** THE ADJUSTMENT OF MY SALARY WAS NOT HANDLED PROPERLY ALSO. I CAME TO THE APRIL 11, 1966 JOB WITH SIX MONTHS OF PRIOR GOVERNMENT EXPERIENCE. THIS WAS WITH THE BELIEF THAT THE JOB WOULD ACTUALLY PAY PER ANNUM EXACTLY WHAT THE OFFICIAL ANNOUNCEMENT STATED THAT IT WOULD PAY. HOWEVER, NOW I AM TOLD THAT THIS IS NOT THE CASE. THE OFFICIAL WHO HIRED ME AT THAT TIME, APRIL 11, 1966, SHOULD HAVE EXPLAINED THIS TO ME AND LET ME DECIDE WHETHER TO ACCEPT THE JOB AT THE LOWER SALARY, $3814, OR WAIT UNTIL THE OFFICIAL ANNOUNCED SALARY WENT INTO EFFECT, $3925, ON JULY JULY 3, 1966.

"THEY, THE LOCAL STATION OFFICIALS COULD HAVE WITHHELD THE RESULTS OF THE INTERVIEW UNTIL THEY WERE READY TO SEND ME THE NOTIFICATION WHEN TO REPORT. THEY COULD HAVE ALSO INFORMED ME BACK ON THE DATE WHEN THEY SENT ME THE NOTIFICATION OF ACCEPTANCE THAT SHOULD I DECIDE TO ACCEPT THE JOB THAT I WOULD HAVE BEEN GIVEN A RETROACTIVE CHECK ON JULY 3, 1966 WHICH WOULD HAVE COVERED THE PERIOD BACK TO APRIL 11, 1966, SINCE THEY WERE DUTY BOUND TO PAY WHAT THE ANNOUNCEMENT CALLED FOR AND NOT THE LESSER SALARY. *** THEREFORE SIR, I WAS SHORT CHANGED TWO MONTHS AND TWENTY TWO DAYS OF $3925 PER ANNUM PAY ***."

WE HAVE REVIEWED THE FILE AND FIND NO INDICATION THAT THE POSITION TO WHICH THE EMPLOYEE WAS APPOINTED WAS IMPROPERLY PLACED AT A GRADE GS-2, STEP 1, OR THAT THE SALARY OF $3,814 WAS IMPROPERLY ASCRIBED TO THAT POSITION AT THE DATE OF HIS APPOINTMENT. WE DO FIND, AS INDICATED BY THE CLAIMANT, THAT THE ANNOUNCEMENT NO. PH-124-1 TO WHICH CLAIMANT RESPONDED DID INDICATE THAT THE SALARY FOR THE POSITION WAS $3,925 AND IS DEVOID OF ANY LANGUAGE MAKING IT CLEAR THAT THAT SALRY WOULD NOT BE EFFECTIVE UNTIL JULY.

HOWEVER, MR. MCCOY'S ASSERTION THAT HE IS ENTITLED TO THE HIGHER SALARY AS OF THE DATE OF HIS APPOINTMENT IN VIEW OF HIS HAVING RELIED ON THE REPRESENTATIONS IN THE ANNOUNCEMENT IS WITHOUT FOUNDATION IN LAW. IN THE CASE OF LEONARD J. GANSE V. UNITED STATES, 376 F 2D 900 (CT. CL. 1967), THE COURT OF CLAIMS ADDRESSED A SITUATION NOT UNSIMILAR TO THIS IN WHICH REPRESENTATIONS HAD BEEN MADE TO A PROSPECTIVE EMPLOYEE THAT THE POSITION FOR WHICH HE WAS BEING INTERVIEWED WAS CLASSIFIED AS A GRADE GS-16, BUT HIS ACTUAL APPOINTMENT WAS TO A GRADE GS-15 POSITION. THE PLAINTIFF IN THAT CASE BROUGHT SUIT ON ESSENTIALLY THE SAME BASIS SET FORTH BY THE CLAIMANT FOR THE DIFFERENCE IN PAY BETWEEN A GRADE GS-16 AND A GRADE GS-15 SALARY. THERE THE COURT DISCUSSED THE LEGAL IMPORT OF THE REPRESENTATIONS MADE TO THE PLAINTIFF AS FOLLOWS:

"PLAINTIFF CLAIMS HE IS ENTITLED TO PAY AT THE RATE OF A GRADE 16 POSITION DURING THE ENTIRE PERIOD OF HIS TENURE IN HIS POSITION, BECAUSE OF THE REPRESENTATIONS MADE TO HIM BY INDIVIDUALS IN THE CIVILIAN PERSONNEL DIVISION OF THE ARMY, WHO HAD INTERVIEWED HIM PRIOR TO HIS APPOINTMENT (TO THE EFFECT THAT THE POSITION WHICH HE WAS ABOUT TO ACCEPT AND TO WHICH HE WAS ABOUT TO BE APPOINTED, WOULD IN TIME BE ELEVATED TO GRADE 16). THE NATURE OF THE REPRESENTATIONS, NOT BEING MATERIAL TO A DETERMINATION OF THE LEGAL ISSUE HERE, WILL NOT BE ELABORATED, EXCEPT TO SAY THAT THEY INVOLVED MATTERS OF A POLITICAL NATURE. IN SUPPORT OF HIS POSITION ON THIS ISSUE, THE PLAINTIFF CITES A NUMBER OF CONTRACT CASES, ALL OF WHICH ARE INAPPOSITE. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF POSITIONS TO WHICH THEY ARE APPOINTED, REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. PRICE V. UNITED STATES, 112 CT. CL. 198, 200 80 F. SUPP. 542, 543 (1948) AND CASES CITED. THE PLAINTIFF WAS APPOINTED TO, SERVED IN AND WAS PAID FOR SERVICES OF A POSITION IN GRADE 15. WHERE THE PLAINTIFF HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED, HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER THE LAW. PRICE, SUPRA."

AS INDICATED ABOVE, WHERE AN EMPLOYEE HAS RECEIVED THE SALARY OF THE POSITION TO WHICH HE HAS BEEN APPOINTED, HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED BY LAW.

WHILE WE CONCUR IN THE CLAIMANT'S FEELING THAT THE STATEMENT OF SALARY CONTAINED IN THE ANNOUNCEMENT WAS MISLEADING AND THAT RECRUITMENT OFFICIALS SHOULD HAVE MADE IT CLEAR THAT THE SALARY OF $3,925 WOULD NOT BECOME EFFECTIVE UNTIL THE FIRST DAY OF THE FIRST PAY PERIOD ON OR AFTER JULY 1, 1966, THAT FACT DOES NOT PROVIDE A BASIS FOR RETROACTIVE PAYMENT OF SALARY IN THIS INSTANCE. A GOVERNMENT AGENT CANNOT, BY NEGLIGENTLY MISREPRESENTING THE EXTENT OF THE GOVERNMENT'S OBLIGATION, INCREASE THAT OBLIGATION BEYOND THAT ESTABLISHED BY STATUTE OR REGULATIONS. THE WELL ESTABLISHED RULE OF LAW IN THIS REGARD IS THAT ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK OF HAVING ASCERTAINED THAT THE AGENT WITH WHOM HE DEALS AND WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS WITHIN THE LIMITS OF HIS AUTHORITY, INASMUCH AS THE GOVERNMENT CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. HART V. UNITED STATES, 95 U.S. 316 (1877); PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279 (1902); UTAH POWER AND LIGHT CO. V. UNITED STATES, 243 U.S. 389 (1917); SUTTON, TRUSTEE OF ESTATE OF HILLSBORO DREDGING COMPANY, BANKRUPT V. UNITED STATES, 256 U.S. 575 (1921); WILBER NATIONAL BANK OF ONEONTA, ADMINISTRATOR V. UNITED STATES, 294 U.S. 120 (1935); FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947).

INASMUCH AS THE SALARY FOR THE POSITION WHICH MR. MCCOY HELD WAS PROPERLY ESTABLISHED IN ACCORDANCE WITH THE UNITED STATES CIVIL SERVICE COMMISSION'S SALARY TABLE NO. 44, DATED JANUARY 1966, HIS CLAIM FOR AMOUNTS IN ADDITION TO THAT IS DENIED.