B-185795, FEB 24, 1976

B-185795: Feb 24, 1976

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FOR THE PERIOD HE WAS IMPROPERLY DETAILED TO A HIGHER GRADE POSITION. WAS OFFICIALLY DETAILED TO SERVE AS ACTING CHIEF. WHICH IS A GS-15 POSITION. SERVED IN THIS HIGHER GRADE POSITION UNTIL HIS DETAIL WAS OFFICIALLY TERMINATED ON JANUARY 7. HE WAS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO GRADE GS-15 BEGINNING ON OCTOBER 6. THE DAY HIS DETAIL WAS TERMINATED. IS THE APPROPRIATE STATUTORY AUTHORITY FOR COMPENSATING AN EMPLOYEE FOR PAY. ALLOWANCES OR DIFFERENTIALS HE WOULD HAVE RECEIVED. TO THE EFFECT THAT AN AGENCY'S DISCRETIONARY AUTHORITY TO RETAIN AN EMPLOYEE ON DETAIL TO A HIGHER GRADE POSITION CONTINUES NO LONGER THAN 120 DAYS AND THAT THE AGENCY MUST EITHER HAVE OBTAINED PRIOR APPROVAL OF THE COMMISSION FOR AN EXTENSION OF THE DETAIL OR TEMPORARILY PROMOTE THE DETAILED EMPLOYEE AT THE END OF THE SPECIFIED TIME PERIOD.

B-185795, FEB 24, 1976

FEDERAL AVIATION ADMINISTRATION DETAILED GRADE GS-14 EMPLOYEE TO GRADE GS -15 POSITION FOR APPROXIMATELY 7 MONTHS AND FAILED TO OBTAIN APPROVAL OF THE CIVIL SERVICE COMMISSION FOR DETAIL EXTENSION. EMPLOYEE BECAME ENTITLED TO TEMPORARY PROMOTION AND ADDITIONAL PAY ON 121ST DAY OF DETAIL PURSUANT TO RULE IN B-183086, DECEMBER 5, 1975, 55 COMP.GEN. , THAT ENTITLES EMPLOYEES DETAILED TO HIGHER GRADE TO TEMPORARY PROMOTION AFTER SERVING 120 DAYS, WHERE AGENCY FAILS TO OBTAIN APPROVAL OF DETAIL EXTENSION. THEREFORE, UNDER BACK PAY ACT, 5 U.S.C. SEC. 5596, EMPLOYEE MAY BE GIVEN RETROACTIVE TEMPORARY PROMOTION AND BACK PAY.

MELVIN L. RUTT - RETROACTIVE TEMPORARY PROMOTION FOR EXTENDED DETAIL TO HIGHER GRADE:

THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION DATED JANUARY 20, 1976, FROM MR. JOHN W. FRANK, AN AUTHORIZED CERTIFYING OFFICER, FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION, AS TO WHETHER MR. MELVIN L. RUTT, A GS-14 MANAGEMENT ANALYST, EMPLOYED IN THE OFFICE OF MANAGEMENT SYSTEMS, FAA, MAY BE AWARDED A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY, FOR THE PERIOD HE WAS IMPROPERLY DETAILED TO A HIGHER GRADE POSITION.

EFFECTIVE JUNE 8, 1973, MR. RUTT, WHILE SERVING IN A GS-14 POSITION, WAS OFFICIALLY DETAILED TO SERVE AS ACTING CHIEF, ORGANIZATIONAL ANALYSIS BRANCH, OFFICE OF MANAGEMENT SYSTEMS, FAA, WHICH IS A GS-15 POSITION. SERVED IN THIS HIGHER GRADE POSITION UNTIL HIS DETAIL WAS OFFICIALLY TERMINATED ON JANUARY 7, 1974.

MR. RUTT FILED A CLAIM WITH HIS AGENCY ALLEGING THAT IN ACCORDANCE WITH THE HOLDING OF OUR DECISION B-183086, DECEMBER 5, 1975, 55 COMP.GEN. , HE WAS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO GRADE GS-15 BEGINNING ON OCTOBER 6, 1973, THE 121ST DAY OF HIS DETAIL UNTIL JANUARY 7, 1974, THE DAY HIS DETAIL WAS TERMINATED, INASMUCH AS HIS AGENCY HAD FAILED TO SEEK OR OBTAIN AN EXTENSION OF HIS DETAIL FROM THE CIVIL SERVICE COMMISSION PRIOR TO HIS HAVING SERVED 120 DAYS IN SUCH HIGHER GRADE POSITION. ALSO CLAIMED BACK PAY FOR THE DIFFERENCE IN COMPENSATION BETWEEN GRADES GS -14 AND GS-15 DURING THE PERIOD OF THE RETROACTIVE PROMOTION.

THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596 (1970), IS THE APPROPRIATE STATUTORY AUTHORITY FOR COMPENSATING AN EMPLOYEE FOR PAY, ALLOWANCES OR DIFFERENTIALS HE WOULD HAVE RECEIVED, BUT FOR A VIOLATION OF A MANDATORY PROVISION OF A STATUTE OR REGULATION. 54 COMP.GEN. 760 (1975), 54 ID. 1028 (1975). OUR HOLDING IN B-183086, SUPRA, CONCURRED IN A CIVIL SERVICE COMMISSION INTERPRETATION OF COMMISSION REGULATIONS GOVERNING DETAILS TO HIGHER GRADE POSITIONS CONTAINED IN CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL (1969 ED.) TO THE EFFECT THAT AN AGENCY'S DISCRETIONARY AUTHORITY TO RETAIN AN EMPLOYEE ON DETAIL TO A HIGHER GRADE POSITION CONTINUES NO LONGER THAN 120 DAYS AND THAT THE AGENCY MUST EITHER HAVE OBTAINED PRIOR APPROVAL OF THE COMMISSION FOR AN EXTENSION OF THE DETAIL OR TEMPORARILY PROMOTE THE DETAILED EMPLOYEE AT THE END OF THE SPECIFIED TIME PERIOD. BASED ON THIS INTERPRETATION, WE HELD IN B-183086, SUPRA, THAT WHERE AN AGENCY FAILS TO SEEK PRIOR APPROVAL OF THE COMMISSION TO EXTEND AN EMPLOYEE'S DETAIL PERIOD IN A HIGHER GRADE POSITION PAST 120 DAYS, THE AGENCY HAS A MANDATORY DUTY TO AWARD THE EMPLOYEE A TEMPORARY PROMOTION IF HE CONTINUES TO PERFORM THE HIGHER GRADE POSITION.

IN THE INSTANT CASE, THE AGENCY ASSUMES THAT IT FAILED TO SEEK APPROVAL FOR AN EXTENSION OF MR. RUTT'S DETAIL SINCE A SEARCH OF ITS FILES FAILED TO UNCOVER ANY EVIDENCE TO THAT EFFECT. THUS, THE AGENCY CONCEDES THAT UNDER THE AFOREMENTIONED RULE, MR. RUTT BECAME ENTITLED TO A TEMPORARY PROMOTION TO GS-15 ON OCTOBER 6, 1973, WHICH ENTITLEMENT CONTINUED THROUGH JANUARY 7, 1974, WHEN THE DETAIL WAS TERMINATED. ON OCTOBER 6, 1973, MR. RUTT HAD OVER 1 YEAR IN GRADE AS A GS-14 AND THUS SATISFIED THE TIME-IN- GRADE REQUIREMENT. ON THE BASIS OF THIS RECORD, THE AGENCY CONCEDES THAT MR. RUTT UNDERWENT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH RESULTED IN A REDUCTION OF HIS PAY IN THE AMOUNT OF $504.88.

IN VIEW OF THE FOREGOING, WE HOLD THAT UNDER THE AUTHORITY OF THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596, AND IMPLEMENTING REGULATIONS, THE AGENCY MAY AWARD MR. RUTT A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE STATED PERIOD.