B-181877, APR 10, 1975

B-181877, APR 10, 1975

CIVILIAN EMPLOYEE WHO WAS DETAILED TO DUTY IN HIGHER GRADE POSITION MAY ONLY BE PAID SALARY OF LOWER POSITION TO WHICH HE WAS APPOINTED. ALTHOUGH AGENCY DID NOT OBSERVE REGULATIONS REQUIRING REPORTING AND NOTIFICATION OF DETAIL, EMPLOYEE IS NOT ENTITLED TO PAY OF HIGHER POSITION BECAUSE REGULATIONS DO NOT REQUIRE PROMOTION OF DETAILED EMPLOYEE. ALSO, SINCE CIVIL SERVICE COMMISSION REGULATION ADVISING AGENCIES THAT EMPLOYEES WHO PARTICIPATE IN LONGER DETAILS BE TEMPORARILY PROMOTED IS PERMISSIVE AND AGENCY DID NOT PROMOTE EMPLOYEE, THERE IS NO EMPLOYEE RIGHT TO SALARY OF HIGHER GRADE POSITION.

JOHN T. MURPHY - DETAIL TO HIGHER GRADE:

THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR RECONSIDERATION OF SETTLEMENT CERTIFICATE NO. Z-2486328, ISSUED AUGUST 10, 1973, BY OUR TRANSPORTATION AND CLAIMS DIVISION, DISALLOWING A CLAIM BY MR. JOHN T. MURPHY FOR ADDITIONAL COMPENSATION WHICH HE BELIEVES IS DUE INCIDENT TO HIS PERFORMANCE OF DUTIES AT A HIGHER GRADE POSITION THAN THAT WHICH HE NORMALLY HELD.

THE RECORD SHOWS THAT MR. MURPHY IS EMPLOYED BY THE DEPARTMENT OF THE ARMY AT THE WHITE SANDS MISSILE RANGE IN NEW MEXICO AS DEPUTY COMPTROLLER AT THE GS-14 LEVEL. IT APPEARS THAT FOLLOWING THE RETIREMENT OF THE COMPTROLLER OF THE WHITE SANDS MISSILE RANGE, WHOSE POSITION WAS COMPENSATED FOR AT THE GS-15 LEVEL, MR. MURPHY WAS ASSIGNED TO SERVE AS ACTING COMPTROLLER FROM APRIL 11, 1971, TO OCTOBER 23, 1971, PURSUANT TO GENERAL ORDER NO. 23, APRIL 9, 1971, UNTIL A NEW COMPTROLLER WAS APPOINTED. MR. MURPHY CLAIMED THE DIFFERENCE IN PAY BETWEEN THE GS-14 AND THE GS-15 LEVELS FOR THE PERIOD HE WAS ACTING COMPTROLLER.

OUR TRANSPORTATION AND CLAIMS DIVISION DISALLOWED MR. MURPHY'S CLAIM STATING THE GENERAL RULE OF LAW THAT AN EMPLOYEE OF THE FEDERAL GOVERNMENT IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED EVEN THOUGH HE MAY HAVE BEEN ASSIGNED OR DETAILED TO PERFORM DUTIES OF A HIGHER GRADE POSITION. MR. MURPHY APPEALED THE DISALLOWANCE OF HIS CLAIM.

MR. MURPHY POINTS OUT THAT FEDERAL PERSONNEL MANUAL (FPM) CHAPTER 300, SUBCHAPTER 8-4.C, AUGUST 26, 1970, STATES:

"RECORDING DETAILS. (1) DETAILS IN EXCESS OF 30 DAYS WILL BE REPORTED ON STANDARD FORM 52 OR OTHER STANDARD FORM CONSIDERED APPROPRIATE BY THE AGENCY AND MAINTAINED AS A PERMANENT RECORD IN OFFICIAL PERSONNEL FOLDERS."

HE STATES THAT ARMY MISSILE COMMAND REGULATIONS "***ALSO REQUIRE THAT APPOINTING OFFICERS BE RESPONSIBLE FOR ASSURING THAT EMPLOYEES DETAILED FOR MORE THAN 30 DAYS ARE GIVEN FORMAL NOTIFICATION OF THE REASON FOR THE DETAIL, THE NATURE OF THE DUTIES TO BE PERFORMED AND DURATION OF THE DETAIL." MR. MURPHY ALLEGES THAT THE ABOVE PROCEDURES WERE NEVER FOLLOWED. MR. MURPHY CONTENDS FURTHER THAT CERTAIN DECISIONS OF THE COMPTROLLER GENERAL STATE THAT AN EMPLOYEE REQUIRED TO PERFORM DUTY IN A POSITION AT A HIGHER GRADE LEVEL IS ENTITLED TO THE PAY OF THE HIGHER POSITION. FINALLY, MR. MURPHY POINTS OUT THAT CIVIL SERVICE REGULATIONS PROVIDE FOR TEMPORARY PROMOTIONS WHERE THE USE OF A DETAIL WOULD BE INAPPROPRIATE. FPM CH. 335, SUBCHAPTER 4-4A, SEPTEMBER 20, 1968.

OUR TRANSPORTATION AND CLAIMS DIVISION PROPERLY STATED THE LAW THAT AN EMPLOYEE OF THE FEDERAL GOVERNMENT IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED EVEN THOUGH HE MAY HAVE BEEN ASSIGNED OR DETAILED TO PERFORM DUTIES OF A HIGHER GRADE POSITION. 41 COMP. GEN. 497, 499 (1962); GANSE V. UNITED STATES, 180 CT. CL. 183 (1967). FURTHERMORE, AS A GENERAL RULE A PERSONNEL ACTION MAY NOT BE EFFECTED RETROACTIVELY SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. 40 COMP. GEN. 207 (1960). EXCEPTIONS TO THIS RULE HAVE BEEN MADE WHERE THROUGH ADMINISTRATIVE OR CLERICAL ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, WHERE AN ADMINISTRATIVE ERROR HAS DEPRIVED THE EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION, OR WHERE NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES HAVE NOT BEEN CARRIED OUT. 52 COMP. GEN. 920 (1973). IN ALL THESE INSTANCES, THE AGENCY ACTION WOULD CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AND RETROACTIVE CORRECTION OF THE AGENCY ACTION WOULD BE AUTHORIZED UNDER THE BACK PAY ACT, 5 U.S.C. SEC. 5596. THERE WAS NO SUCH UNJUSTIFIED OR UNWARRANTED ACTION IN THIS CASE. THE ARMY CLEARLY INTENDED THAT MR. MURPHY BE DETAILED, NOT APPOINTED, TO THE HIGHER POSITION. IT IS TRUE THAT THE AGENCY DID NOT COMPLY WITH THE REGULATIONS REFERRED TO BY MR. MURPHY WHICH REQUIRE THAT DETAILS LONGER THAN 30 DAYS BE REPORTED, AND WHICH REQUIRE THAT THE EMPLOYEE BE INFORMED AS TO THE REASONS FOR HIS DETAIL AND THE NATURE OF THE DUTIES TO BE PERFORMED BY HIM. HOWEVER, THE AGENCY'S NONPERFORMANCE OF THESE NOTIFICATION REQUIREMENTS DOES NOT BEAR ON MR. MURPHY'S ENTITLEMENT TO COMPENSATION SINCE EVEN IF THEY HAD BEEN FULFILLED, HE WOULD STILL NOT HAVE BEEN APPOINTED TO THE POSITION. MR. MURPHY'S CASE IS TO BE DISTINGUISHED FROM THE SITUATION IN WHICH THE AGENCY IS BOUND BY A MANDATORY REQUIREMENT THAT AN EMPLOYEE BE PROMOTED WITHIN A CERTAIN TIME PERIOD BUT DUE TO THE FAILURE OF THE AGENCY TO TAKE THE NECESSARY PERSONNEL ACTION THE EMPLOYEE IS NOT PROMOTED. B-180311, OCTOBER 4, 1974, 54 COMP. GEN. ; B-181173, NOVEMBER 13, 1974. IN THE LATTER SITUATION THE EMPLOYEE IS ENTITLED TO HAVE HIS PAY RECORDS ADJUSTED TO REFLECT THE PROMOTION AT THE TIME IT SHOULD HAVE OCCURRED. IN MR. MURPHY'S CASE, HOWEVER, WE ARE UNAWARE OF ANY REGULATION, STATUTE, OR COLLECTIVE BARGAINING AGREEMENT GRANTING HIM THE RIGHT TO BE PROMOTED OR REQUIRING HIM TO BE PROMOTED WITHIN A CERTAIN TIME AFTER SERVING IN THE HIGHER POSITION FOR A SPECIFIED PERIOD.

IN THIS CONNECTION, EVEN THOUGH FPM CHAPTER 335, SUBCHAPTER 4-4A, SEPTEMBER 10, 1968, ADVISES THAT A TEMPORARY PROMOTION IS GENERALLY APPROPRIATE WHERE A DETAIL IS PROLONGED, THERE ARE NO MANDATORY PROVISIONS CONTAINED THEREIN DIRECTING THAT AN AGENCY MUST PROMOTE THE EMPLOYEE UNDER SUCH CIRCUMSTANCES. 52 COMP. GEN. 920, SUPRA. ACCORDINGLY, SINCE THE AGENCY HAD THE DISCRETION TO TEMPORARILY PROMOTE MR. MURPHY OR NOT TO DO SO, WE FIND THAT MR. MURPHY IS NOT ENTITLED TO THE PAY OF THE HIGHER POSITION TO WHICH HE WAS ASSIGNED AS THE AGENCY DID NOT IN FACT PROMOTE HIM.

IN VIEW OF THE ABOVE THE DISALLOWANCE OF MR. MURPHY'S CLAIM IS SUSTAINED.