B-186087, JUN 1, 1976

B-186087: Jun 1, 1976

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GAO IS WITHOUT JURISDICTION TO DECIDE QUESTIONS INVOLVING CLASSIFICATION PROCEDURES. IT IS NOT WITHIN THE JURISDICTION OF THIS OFFICE TO DETERMINE WHETHER A POSITION HAS BEEN PROPERLY CLASSIFIED OR DESCRIBED. IN THIS CONNECTION WE POINT OUT THAT IF AN EMPLOYEE BELIEVES HIS POSITION IS NOT PROPERLY CLASSIFIED. MCWHORTER'S POSITION WAS RECLASSIFIED TO GS 11 ON SEPTEMBER 4. HE WAS PROMOTED ON SEPTEMBER 16. MCWHORTER CONTENDS THAT HIS POSITION OF ASSISTANT COMMISSARY SALES STORE MANAGER SHOULD HAVE BEEN RECLASSIFIED TO GRADE GS-11 IN SEPTEMBER 1971. WE HAVE HELD CONSISTENTLY THAT THE CLASSIFICATION OF POSITIONS IN THE GOVERNMENT IS GOVERNED BY THE CLASSIFICATION ACT OF 1949. THE REGULATIONS OF THE COMMISSION ARE CONTAINED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS.

B-186087, JUN 1, 1976

EMPLOYEE CLAIMS RETROACTIVE PROMOTION AND ACCOMPANYING BACK PAY DUE TO ALLEGED WRONGFUL CLASSIFICATION. EMPLOYEE HAS NO ENTITLEMENT UNDER CIVIL SERVICE REGULATIONS AND SUPREME COURT IN UNITED STATES V. TESTAN, 44 U.S.L.W. 4245, MARCH 2, 1976, HELD THAT BACK PAY ACT., 5 U.S.C. SEC. 5596 (1970) DOES NOT APPLY TO WRONGFUL CLASSIFICATIONS. FURTHERMORE, GAO IS WITHOUT JURISDICTION TO DECIDE QUESTIONS INVOLVING CLASSIFICATION PROCEDURES. SEE CASES CITED.

BENJAMIN C. MCWHORTER - CLAIM FOR RETROACTIVE PROMOTION AND BACK PAY:

BY A LETTER DATED JANUARY 31, 1976, MR. BENJAMIN C. MCWHORTER APPEALED CERTIFICATE OF SETTLEMENT NO. Z-2578864, ISSUED JANUARY 6, 1976, BY OUR CLAIMS DIVISION WHICH DISALLOWED MR. MCWHORTER'S CLAIM FOR A RETROACTIVE PROMOTION FROM GRADE GS-9 TO GS-11 AND ACCOMPANYING BACK PAY. MR. MCWHORTER ALSO REQUESTED AN INVESTIGATION OF THE CLASSIFICATION PROCEDURES FOLLOWED BY THE MACDILL AIR FORCE BASE PERSONNEL OFFICE AND COMMISSARY STORE MANAGEMENT.

CONCERNING MR. MCWHORTER'S REQUEST FOR AN INVESTIGATION OF THE CLASSIFICATION PROCEDURES, IT IS NOT WITHIN THE JURISDICTION OF THIS OFFICE TO DETERMINE WHETHER A POSITION HAS BEEN PROPERLY CLASSIFIED OR DESCRIBED. B-173831, SEPTEMBER 27, 1971; B-172808, JUNE 2, 1971. IN THIS CONNECTION WE POINT OUT THAT IF AN EMPLOYEE BELIEVES HIS POSITION IS NOT PROPERLY CLASSIFIED, HE MAY APPEAL HIS CLASSIFICATION AT ANY TIME TO THE UNITED STATES CIVIL SERVICE COMMISSION. 5 C.F.R. SEC. 605.

THE RECORD SHOWS THAT MR. MCWHORTER'S POSITION WAS RECLASSIFIED TO GS 11 ON SEPTEMBER 4, 1973, AND HE WAS PROMOTED ON SEPTEMBER 16, 1973. MR. MCWHORTER CONTENDS THAT HIS POSITION OF ASSISTANT COMMISSARY SALES STORE MANAGER SHOULD HAVE BEEN RECLASSIFIED TO GRADE GS-11 IN SEPTEMBER 1971. THEREFORE, HE REQUESTS RETROACTIVE PROMOTION AND PAYMENT OF SALARY DIFFERENTIAL BETWEEN GRADES GS-9 AND GS-11 FROM SEPTEMBER 1971 TO SEPTEMBER 16, 1973.

WE HAVE HELD CONSISTENTLY THAT THE CLASSIFICATION OF POSITIONS IN THE GOVERNMENT IS GOVERNED BY THE CLASSIFICATION ACT OF 1949, AS AMENDED, NOW CODIFIED AS 5 U.S.C. SECS. 5105-5115. SECTION 5115 EMPOWERS THE CIVIL SERVICE COMMISSION TO PRESCRIBE REGULATIONS REGARDING THE CLASSIFICATION OF POSITIONS. THE REGULATIONS OF THE COMMISSION ARE CONTAINED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. SECTION 511.701, TITLE 5 C.F.R., PROVIDES THAT THE EFFECTIVE DATE OF A CLASSIFICATION ACTION TAKEN BY AN AGENCY IS THE DATE THE ACTION IS APPROVED IN THE AGENCY OR A SUBSEQUENT DATE SPECIFICALLY STATED. SECTION 511.702 PROVIDES THAT THE EFFECTIVE DATE OF A CLASSIFICATION ACTION UPON APPEAL, SUBJECT TO THE PROVISIONS OF 511.703, IS NO EARLIER THAN THE DATE OF THE DECISION ON THE APPEAL AND NOT LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD FOLLOWING THE DATE OF THE DECISION, EXCEPT THAT A SUBSEQUENT DATE MAY BE SPECIFICALLY PROVIDED IN A DECISION BY THE COMMISSION, SECTION 511.703 PROVIDES THAT IN CERTAIN CASES WHERE THERE IS A DOWNGRADING OR OTHER CLASSIFICATION ACTION THAT RESULTED IN A REDUCTION OF PAY, THE EFFECTIVE DATE OF A CLASSIFICATION ACTION RESULTING FROM AN APPEAL DECISION REVERSING IN WHOLE OR PART SUCH ACTION SHALL BE RETROACTIVE TO THE DATE OF THE ADVERSE ACTION. WE HAVE HELD, THEREFORE, THAT THE RECLASSIFICATION OF A POSITION WITH A CONCOMITANT PAY INCREASE MAY NOT BE MADE RETROACTIVELY OTHER THAN AS PROVIDED IN 5 C.F.R. SEC. 511.703. 55 COMP.GEN. 515 (1975).

THE UNITED STATES SUPREME COURT HELD IN UNITED STATES V. TESTAN, 44 U.S.L.W. 4245, MARCH 2, 1976, THAT NEITHER THE CLASSIFICATION ACT NOR THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1970), CREATES A SUBSTANTIVE RIGHT TO BACK PAY BASED ON A WRONGFUL CLASSIFICATION ACTION. IN LIGHT OF THE TESTAN CASE AND SINCE MR. MCWHORTER'S CASE DOES NOT QUALIFY FOR RETROACTIVE PROMOTION AND BACK PAY UNDER THE CIVIL SERVICE REGULATIONS, THERE IS NO AUTHORITY UNDER WHICH HIS CLAIM FOR BACK PAY DUE TO WRONGFUL CLASSIFICATION MAY BE GRANTED. ACCORDINGLY, THE CERTIFICATE OF SETTLEMENT, ISSUED JANUARY 6, 1976, DENYING MR. MCWHORTER'S CLAIM FOR A RETROACTIVE PROMOTION AND BACK PAY IS SUSTAINED.