B-181043, SEP 18, 1974

B-181043: Sep 18, 1974

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THE VERBAL DETAIL OF AN EMPLOYEE TO THE DUTIES OF A HIGHER GRADE POSITION PROVIDES NO BASIS FOR RETROACTIVE PROMOTION NOTWITHSTANDING THAT DURING THE DETAIL PERIOD MANAGEMENT CANCELED THE RECOMMENDATION FOR THE EMPLOYEE'S PROMOTION TOGETHER WITH THE FACT THAT THE EMPLOYEE WAS AMONG THE BEST QUALIFIED ON A SUBSEQUENT PROMOTION REGISTER FOR THE POSITION WHICH A VOLUNTARY APPLICANT WAS SELECTED TO FILL. WAS VERBALLY DETAILED TO ACT IN THE POSITION OF SUPERVISORY FOOD TECHNICIAN. THE POSITION VACANCY WAS ANNOUNCED IN JUNE 1971. STEINHOFF APPLIED AND WAS RECOMMENDED FOR SELECTION FOR THE POSITION VACANCY IN OCTOBER 1971. THE PROMOTION ACTION WAS INITIATED IN NOVEMBER 1971 BUT SUBSEQUENTLY CANCELED BECAUSE OF A MANAGEMENT DETERMINATION THAT THE WORK AREA WAS NOT FUNCTIONING AS ORGANIZED.

B-181043, SEP 18, 1974

THE VERBAL DETAIL OF AN EMPLOYEE TO THE DUTIES OF A HIGHER GRADE POSITION PROVIDES NO BASIS FOR RETROACTIVE PROMOTION NOTWITHSTANDING THAT DURING THE DETAIL PERIOD MANAGEMENT CANCELED THE RECOMMENDATION FOR THE EMPLOYEE'S PROMOTION TOGETHER WITH THE FACT THAT THE EMPLOYEE WAS AMONG THE BEST QUALIFIED ON A SUBSEQUENT PROMOTION REGISTER FOR THE POSITION WHICH A VOLUNTARY APPLICANT WAS SELECTED TO FILL, IN VIEW OF THE LONG- STANDING RULE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION.

ADMINISTRATIVE ERROR - RETROACTIVE PROMOTION:

THE DEPARTMENT OF AGRICULTURE REQUESTS A DECISION AS TO WHETHER DR. H. E. STEINHOFF MAY BE PROMOTED RETROACTIVELY AS AN EMPLOYEE OF THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE.

THE PERTINENT FACTS AS REPORTED BY THE AGENCY SHOW THAT DR. STEINHOFF, SUPERVISORY FOOD TECHNICIAN, GS-1382-13, WAS VERBALLY DETAILED TO ACT IN THE POSITION OF SUPERVISORY FOOD TECHNICIAN, GS-1382 14, ON MAY 31, 1971. THE POSITION VACANCY WAS ANNOUNCED IN JUNE 1971. DR. STEINHOFF APPLIED AND WAS RECOMMENDED FOR SELECTION FOR THE POSITION VACANCY IN OCTOBER 1971. THE PROMOTION ACTION WAS INITIATED IN NOVEMBER 1971 BUT SUBSEQUENTLY CANCELED BECAUSE OF A MANAGEMENT DETERMINATION THAT THE WORK AREA WAS NOT FUNCTIONING AS ORGANIZED, AND HENCE, THE PROMOTION ACTION WAS NOT EFFECTED. THERE IS NO INDICATION THAT THE DETERMINATION TO CANCEL THE PROMOTION RECOMMENDATION WAS NOT WITHIN MANAGEMENT AUTHORITY.

AFTER A REORGANIZATION OF THE APPLICABLE STAFF IN AUGUST 1972, ANOTHER PROMOTION REGISTER WAS REQUESTED AND ON SEPTEMBER 18, 1972, THE POSITION OF FOOD TECHNOLOGIST, GS-14, WAS ANNOUNCED. DR. STEINHOFF'S NAME WAS ON THE REGISTER OF BEST QUALIFIED CANDIDATES, AND HE PERFORMED THE SUBJECT DUTIES UNTIL DECEMBER 25, 1972, DUTIES UNTIL DECEMBER 25, 1972; HOWEVER, A VOLUNTARY APPLICANT WAS SELECTED TO FILL THE POSITION. DR. STEINHOFF HAS FILED A FORMAL GRIEVANCE WITH THE AGENCY ON THE MATTER AND AS PART OF THAT PROCEDURE THE AGENCY DIRECTOR OF PERSONNEL ASKS THE FOLLOWING QUESTIONS:

"*** DID THE DETAIL TO A HIGHER LEVEL POSITION BY THE SUPERVISOR, WITHOUT A CORRESPONDING REQUEST FOR PERSONNEL ACTION, CONSTITUTE ADMINISTRATIVE ERROR SO AS TO FORM A BASIS FOR EXCEPTION TO THE GENERAL RULE THAT A PERSONNEL ACTION MAY NOT BE EFFECTED RETROACTIVELY SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION? MAY DR. STEINHOFF RECEIVE A RETROACTIVE TEMPORARY PROMOTION WITH PAY OR MAY HE RECEIVE A RETROACTIVE TEMPORARY PROMOTION WITH PAY OR MAY HE RECEIVE PAY ONLY?"

IN DECISION B-179207, NOVEMBER 21, 1973, IT WAS STATED IN PERTINENT PART:

"FEDERAL EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES ACTUALLY PERFORMED. THUS WHERE EMPLOYEES OF AN AGENCY BELIEVED THEMSELVES ENTITLED TO PROMOTION TO A HIGHER GRADE AND WERE ULTIMATELY SUCCESSFUL IN SO PERSUADING THE CIVIL SERVICE COMMISSION, THEIR ENTITLEMENT TO THE PAY OF THE HIGHER GRADE DID NOT COMMENCE UNTIL THEY WERE ACTUALLY PROMOTED TO THAT GRADE IN ACCORDANCE WITH THE DETERMINATION OF THE COMMISSION, THERE BEING NO AUTHORITY TO MAKE SUCH PROMOTIONS RETROACTIVELY EFFECTIVE DIANISH ET AL. V. UNITED STATES, 183 C. CLS. 702 (1968).

"SIMILARLY WE HAVE HELD CONSISTENTLY THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED. THIS IS SO EVEN THOUGH THE EMPLOYEE MAY BE OFFICIALLY OR UNOFFICIALLY ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION. ARE UNAWARE OF ANY 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 REGULATIONS. NOR HAS THE AUTHORITY PROVIDING FOR DETAILS WITHIN THE EXECUTIVE OR MILITARY DEPARTMENTS - 5 U.S.C. 3341 - BEEN VIEWED AS AUTHORIZING RETROACTIVE PAY FOR EMPLOYEES WHO HAVE BEEN DETAILED CONTRARY TO THIS OROVISION OR THE REGULATIONS PROMULGATED THEREUNDER. B-165730, JANUARY 17, 1969, AND B-130200, JANUARY 18, 1957. *** ADDITIONALLY WE POINT OUT THAT THE ESTABLISHMENT OF POSITIONS, THE GRADING THEREOF, AND APPOINTMENT OF INDIVIDUALS THERETO, RESTS WITH THE ADMINISTRATIVE AGENCY AND THE CIVIL SERVICE COMMISSION. SEE TIERNEY V. UNITED STATES, 168 C. CLS. 77 (1964); NORDSTROM V. UNITED STATES, 177 C. CLS. 818 (1966)9

"WITH RESPECT TO ADMINISTRATIVE ERROR WE HAVE CONSTRUED IT TO CONSIST OF THE FAILURE OF AN AGENCY TO CARRY OUT WRITTEN ADMINISTRATIVE POLICY OF A NONDISCRETIONARY NATURE OR TO COMPLY WITH ADMINISTRATIVE REGULATIONS HAVING MANDATORY EFFECT. WE HAVE HELD THAT IN THE ABSENCE OF SUCH ERROR, WHEN WHEN AN EMPLOYEE IS PROMOTED, THERE IS NO AUTHORITY TO MAKE SUCH PROMOTION RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. 31 COMP. GEN. 15 (1951); 34 ID. 380 (!955); 39 ID. 550 (1960); 40 ID. 207 (1960); 52 ID. 631 ***."

ON THE RECORD BEFORE US WE FIND NO ADMINISTRATIVE ERROR PERMITTING RETROACTIVE PROMOTION. THE QUESTIONS POSED ABOVE ARE ANSWERED ACCORDINGLY.