B-194891, JAN 24, 1983

B-194891, JAN 24, 1983

DIGEST: A GS-13 EMPLOYEE OF THE ARMY DETAILED TO A GS-14 POSITION WHICH WAS OFFICIALLY DOWNGRADED TO A GS-13 POSITION DURING THE DETAIL, REQUESTS RECONSIDERATION OF DECISION MATTER OF KLEIN, 58 COMP.GEN. 719 (1979), WHICH DENIED HIS ENTITLEMENT TO BACKPAY BASED ON TURNER-CALDWELL DECISIONS, FOR THE PERIOD FOLLOWING THE POSITION DOWNGRADING. BASED ON THE RECENT COURT OF CLAIMS CASE OF WILSON V. UNITED STATES, WHICH DENIED TEMPORARY PROMOTIONS AND BACKPAY FOR OVERLONG DETAILS, THE COMPTROLLER GENERAL HAS DECIDED TO NO LONGER FOLLOW THE TURNER-CALDWELL DECISIONS ON PENDING AND FUTURE CASES. TURNER-CALDWELL III, B-203564, MAY 25, 1982. THEREFORE, THE PREVIOUS TURNER-CALDWELL DECISIONS PROVIDE NO BASIS TO ALLOW THIS EMPLOYEE'S CLAIM.

JACOB KLEIN:

MR. JACOB KLEIN, A GRADE GS-13 EMPLOYEE OF THE DEPARTMENT OF THE ARMY, THROUGH HIS ATTORNEY, HAS REQUESTED RECONSIDERATION OF COMPTROLLER GENERAL DECISION, MATTER OF KLEIN, 58 COMP.GEN. 719 (1979), WHICH SUSTAINED THE DENIAL, IN PART, OF HIS CLAIM FOR A TEMPORARY PROMOTION AND BACKPAY INCIDENT TO AN OVERLONG DETAIL TO A HIGHER GRADE POSITION. THE PART THAT WAS ALLOWED WAS BASED ON OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975) AND 56 COMP.GEN. 427 (1977), WHICH HELD THAT EMPLOYEES WHO WERE DETAILED TO HIGHER GRADE POSITIONS WITHOUT PRIOR APPROVAL OF THE UNITED STATES CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) FOR MORE THAN 120 DAYS WERE ENTITLED TO BACKPAY BEGINNING ON THE 121ST DAY OF THE DETAIL. AT THE TIME MR. KLEIN'S DETAIL BEGAN, THE POSITION TO WHICH HE WAS DETAILED WAS OFFICIALLY CLASSIFIED AT THE GS-14 LEVEL. THE PORTION OF THE PERIOD FOR WHICH ENTITLEMENT TO BACKPAY WAS DENIED WAS FOR THE PERIOD ON OR AFTER THE POSITION TO WHICH HE WAS DETAILED HAD BEEN OFFICIALLY RECLASSIFIED DOWNWARD ON MARCH 3, 1974, TO A GRADE GS-13 LEVEL, WHICH WAS THE GRADE MR. KLEIN HELD AT THE TIME OF THE DETAIL.

THE REQUEST FOR RECONSIDERATION APPEARS TO BE PREMISED ON THE THEORY THAT UNDER THE TURNER-CALDWELL DECISIONS, MR. KLEIN WAS ENTITLED TO THE PAY OF THE POSITION TO WHICH HE WAS DETAILED, SO LONG AS HE CONTINUED ON DETAIL AND THAT THE DETAIL COULD NOT BE CHANGED EVEN THOUGH THE POSITION IS RECLASSIFIED DOWNWARD.

RECENTLY, THE COURT OF CLAIMS CONSIDERED THE CASE OF WILSON V. UNITED STATES, CT.CL. NO. 324-81C, DECIDED OCTOBER 23, 1981, IN WHICH, BASED UPON OUR TURNER-CALDWELL DECISIONS THE PLAINTIFF SOUGHT A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY FOR AN ALLEGED DETAIL TO A HIGHER LEVEL POSITION. THE COURT DENIED THE PLAINTIFF'S CLAIM BY RELYING UPON PRIOR DECISIONS OF THE COURT WHERE IT HAD DENIED RELIEF TO OTHERS FOR OVERLONG DETAILS. SALLA V. UNITED STATES, CT.CL. NO. 623 80C, DECIDED JULY 2, 1981; GOUTOS V. UNITED STATES, 212 CT.CL. 96, 98, 552 F.2D 922, 924 (1976); PETERS V. UNITED STATES, 208 CT.CL. 373, 376 380, 534 F.2D 232, 234-236 (1975). ADDITION, THE COURT IN WILSON SPECIFICALLY DECLINED TO FOLLOW THE TURNER- CALDWELL DECISIONS, STATING THAT NEITHER THE APPLICABLE STATUTE (5 U.S.C. 3341) NOR THE FEDERAL PERSONNEL MANUAL AUTHORIZES A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY IN CASES INVOLVING OVERLONG DETAILS. THE COURT LIKEWISE FOUND NO ENTITLEMENT UNDER THE BACK PAY ACT, 5 U.S.C. 5596.

SUBSEQUENT TO THE RULING IN THE WILSON CASE, WE RECONSIDERED THE POSITION WE HAD TAKEN IN THE 1975 AND 1977 DECISIONS. IN DECISION B-203564, MAY 25, 1982, WE HELD THAT WE WOULD FOLLOW THE WILSON DECISION AND THAT, WHILE WE WOULD NOT DISTURB PRIOR DECISIONS AND SETTLEMENTS BY OUR OFFICE OR OTHER FEDERAL AGENCIES MADE PURSUANT TO THE TURNER CALDWELL DECISIONS, WE WOULD NO LONGER FOLLOW THOSE DECISIONS IN PENDING AND FUTURE CLAIMS. THEREFORE, EVEN IF MR. KLEIN'S CLAIM COULD HAVE BEEN FOUND TO FALL WITHIN THE TYPE OF BACKPAY CLAIMS PREVIOUSLY ALLOWED UNDER THE TURNER-CALDWELL DECISIONS, SINCE THOSE DECISIONS ARE NO LONGER BEING FOLLOWED, THEY FURNISH NO BASIS TO ALLOW HIS CLAIM NOW.

ACCORDINGLY, THE DENIAL OF MR. KLEIN'S CLAIM FOR BACKPAY FOR THE PERIOD ON AND AFTER MARCH 3, 1974, IS SUSTAINED.