B-203629.OM, JUN 16, 1982

B-203629.OM, JUN 16, 1982

SUBJECT: CLASSIFICATION APPEAL AND CLAIM FOR BACKPAY MR. JOHN TIMOTHY DAVIDSON - B-203629-O.M. DIGEST: CLAIM FOR BACKPAY FOR PERIOD OF ALLEGED CONSTRUCTIVE DETAIL TO HIGHER- GRADE POSITION MAY NOT BE ALLOWED SINCE IN TURNER-CALDWELL III B-203564, MAY 25, 1981, THIS OFFICE HELD THAT WE WILL FOLLOW THE COURT OF CLAIMS DECISION IN WILSON AND WOULD DENY ALL PENDING AND FUTURE CLAIMS UNDER OUR TURNER-CALDWELL LINE OF DECISIONS.

DIRECTOR OF PERSONNEL - FELIX R. BRANDON II:

ATTACHED IS YOUR MEMORANDUM OF JUNE 18, 1981, CONCERNING WHETHER MR. JOHN TIMOTHY DAVIDSON, A FORMER GENERAL ACCOUNTING OFFICE (GAO) EVALUATOR, IS ENTITLED TO BACKPAY FOR THE PERIOD FROM JULY 17, 1978. MR. DAVIDSON'S CLAIM IS BASED ON HIS CONTENTION THAT HIS POSITION WAS ERRONEOUSLY CLASSIFIED DURING THE PERIOD IN QUESTION AND THAT HE WAS CONSTRUCTIVELY DETAILED TO A HIGHER GRADE POSITION AS OF JULY 17, 1978. AS DISCUSSED BELOW, THE RECORD BEFORE US DOES NOT ESTABLISH THAT MR. DAVIDSON IS ENTITLED TO BACKPAY.

THE RECORD SHOWS THAT MR. DAVIDSON WAS EMPLOYED IN THE SAN FRANCISCO REGIONAL OFFICE AS A MANAGEMENT ANALYST, GRADE GS-13, WHICH POSITION WAS SUBSEQUENTLY REDESIGNATED AS GAO EVALUATOR, GRADE GS-13. IN HIS CLAIM DATED APRIL 22, 1981, MR. DAVIDSON STATED THAT HIS DUTIES AND RESPONSIBILITIES WERE AT THE GS-14 LEVEL AND HE REQUESTED THAT HIS POSITION BE IMMEDIATELY RECLASSIFIED TO THAT OF GAO EVALUATOR, GS-347 14. IN ADDITION, MR. DAVIDSON REQUESTED A PROMOTION RETROACTIVE TO 120 DAYS FROM JULY 17, 1978, ON THE BASIS OF HIS CONTENTION THAT HE HAD BEEN CONSTRUCTIVELY DETAILED TO A GRADE GS-14 POSITION.

IN RESPONSE TO A CLASSIFICATION APPEAL FILED BY MR. DAVIDSON, MR. OLIVER W. LEWIS, A GAO POSITION CLASSIFICATION SPECIALIST, PERFORMED A CLASSIFICATION EVALUATION OF MR. DAVIDSON'S POSITION. BASED ON THE FACTOR LEVEL DESCRIPTIONS OF MR. DAVIDSON'S DUTIES AND RESPONSIBILITIES AND APPLYING THE GS-13/14 CLASSIFICATION BENCHMARKS FOR THE GAO EVALUATOR SERIES CLASSIFICATION STANDARD, MR. LEWIS DETERMINED THAT MR. DAVIDSON'S DUTIES WERE PROPERLY FOR CLASSIFICATION AT THE GRADE GS-14 LEVEL. THE CLASSIFICATION SPECIALIST CONCLUDED THAT THE PROPER CLASSIFICATION FOR MR. DAVIDSON'S POSITION FOR THE PERIOD FROM JULY 17, 1978, TO SEPTEMBER 6, 1980, IS GAO MANAGEMENT AUDITOR, GS-343-14 AND FROM SEPTEMBER 7, 1980, TO THE DATE OF THE FINDINGS, GAO EVALUATOR, GS 347-14.

THE CLASSIFICATION SPECIALIST NOTED THAT JOB ASSIGNMENT CRITERIA WERE ESTABLISHED AND IMPLEMENTED IN THE FIELD OFFICES DIVISION (FOD) DURING THE SUMMER OF 1979 AND THAT 3 OF THE JOB CODES PERFORMED BY MR. DAVIDSON, 105054, 105113, AND 105108 WERE EVALUATED UNDER SUCH CRITERIA AT THE GRADE GS-14 LEVEL. THE PERIOD DURING WHICH THESE JOBS WERE PERFORMED BY MR. DAVIDSON AND HIS ROLE ARE AS FOLLOWS:

- 105054, JULY 17, 1978, TO MARCH 21, 1980 - TEAM LEADER;

- 105108, MAY 18, 1980 THROUGH AT LEAST THE EVALUATION DATE - ORIGINALLY TEAM LEADER, THEN PERFORMING INDIVIDUALLY; AND

- 105113, JUNE 1, 1980, THROUGH AT LEAST THE DATE OF THE EVALUATION - EVALUATOR-IN-CHARGE.

WE HAVE BEEN INFORMALLY ADVISED THAT THE REFERRED TO CRITERIA ARE THE "CRITERIA FOR EVALUATING REQUIREMENTS FOR JOB ASSIGNMENTS - GS-13, 14 & 15", JUNE 1979 (CRITERIA) POPULARLY KNOWN AS THE "HANLON CRITERIA", AND THAT THESE CRITERIA WERE ADOPTED BY FOD SOMETIME IN JUNE OR JULY OF 1979. THE CRITERIA ARE A MANAGEMENT TOOL INTENDED TO MAXIMIZE THE USE OF AVAILABLE STAFF BY MATCHING THE GRADE LEVEL REQUIREMENTS OF THE ASSIGNMENT WITH THE GRADE LEVEL OF THE PERSONNEL.

GENERALLY, AN EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE HAS BEEN APPOINTED REGARDLESS OF THE DUTIES HE MAY PERFORM. SEE COLEMAN V. UNITED STATES, 100 CT.CL. 41 (1943), DIANISH V. UNITED STATES, 183 CT.CL. 702 (1968), AND PATRICK L. PETERS, B-189663, NOVEMBER 23, 1977. AN EMPLOYEE WHO IS PERFORMING DUTIES OF A GRADE LEVEL HIGHER THAN THAT OF THE POSITION TO WHICH HE IS APPOINTED IS NOT ENTITLED TO THE SALARY OF A HIGHER LEVEL POSITION UNLESS AND UNTIL THE POSITION IS CLASSIFIED TO THE HIGHER GRADE AND HE IS PROMOTED TO IT. 55 COMP.GEN. 515 (1975).

PRIOR TO THE ESTABLISHMENT OF THE GAO PERSONNEL MANAGEMENT SYSTEM, EFFECTIVE OCTOBER 1, 1980, ESTABLISHED UNDER THE GENERAL ACCOUNTING OFFICE PERSONNEL ACT OF 1980, THE CLASSIFICATION OF POSITIONS IN GAO UNDER THE GENERAL SCHEDULE WAS GOVERNED BY 5 U.S.C. SECS. 5101-5115. SECTION 5115 EMPOWERS THE OFFICE OF PERSONNEL MANAGEMENT (OPM) TO PRESCRIBE REGULATIONS REGARDING THE CLASSIFICATION OF POSITIONS. THE ONLY PROVISION IN OPM'S REGULATIONS FOR A RETROACTIVE EFFECTIVE DATE FOR CLASSIFICATION IS WHEN THERE IS A TIMELY APPEAL WHICH RESULTS IN THE REVERSAL, IN WHOLE OR IN PART, OF A DOWNGRADING OR OTHER CLASSIFICATION ACTION WHICH HAD RESULTED IN THE REDUCTION OF PAY. SEE 5 C.F.R. 511.703. IN ADDITION, GAO ORDER 2511.1, APRIL 20, 1981, "POSITION CLASSIFICATION," CHAPTER 5, PARAGRAPH 2, PROVIDES THAT THE EFFECTIVE DATE OF A CLASSIFICATION APPEAL DECISION IS NO EARLIER THAN THE DATE OF THE APPEAL DECISION AND NO LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD FOLLOWING THE DATE OF DECISION UNLESS THE DECISION SPECIFIES A LATER DATE. IN ADDITION, CHAPTER 5, PARAGRAPH 3, OF THE ORDER PROVIDES THAT ONE OF THE NECESSARY CONDITIONS FOR A RETROACTIVE PERSONNEL ACTION IS THAT THE APPEAL DECISION HAS REVERSED, IN WHOLE OR IN PART, A PERSONNEL ACTION THAT LED TO A LOSS IN GRADE OR PAY.

IN UNITED STATES V. TESTAN ET AL., 424 U.S. 392 (1976), THE UNITED STATES SUPREME COURT HELD THAT THERE IS NO SUBSTANTIVE RIGHT TO BACKPAY FOR PERIODS OF WRONGFUL CLASSIFICATION WHERE THE PERTINENT CLASSIFICATION STATUTES, 5 U.S.C. SECS. 5105-5115, DID NOT EXPRESSLY MAKE THE UNITED STATES LIABLE FOR PAY LOST THROUGH AN IMPROPER CLASSIFICATION. NEITHER DOES THE GAO PERSONNEL ACT OF 1980 CONTAIN ANY EXPRESS PROVISION MAKING THE UNITED STATES LIABLE FOR PAY LOST DURING A PERIOD OF IMPROPER CLASSIFICATION. IN ADDITION, THE COURT HELD IN TESTAN THAT THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1976), DOES NOT AFFORD A REMEDY FOR PERIODS OF ERRONEOUS CLASSIFICATION. THUS, MR. DAVIDSON WOULD NOT BE ENTITLED TO BACKPAY DURING THE PERIOD THAT HIS POSITION MAY HAVE BEEN ERRONEOUSLY CLASSIFIED.

AS STATED ABOVE, MR. DAVIDSON HAS ALSO CLAIMED BACKPAY ON THE BASIS THAT HE WAS CONSTRUCTIVELY DETAILED TO A HIGHER GRADE POSITION FROM JULY 17, 1978. A DETAIL IS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A DIFFERENT POSITION WITHIN THE SAME AGENCY FOR A BRIEF SPECIFIED PERIOD, WITH THE EMPLOYEE RETURNING TO REGULAR DUTIES AT THE END OF THE PERIOD. SEE FEDERAL PERSONNEL MANUAL (FPM) BULLETIN 300-40, PARAGRAPH 4, MAY 25, 1977. WE HELD THAT EMPLOYEES WHO ARE DETAILED TO HIGHER GRADE POSITIONS FOR MORE THAN 120 DAYS WITHOUT CIVIL SERVICE COMMISSION APPROVAL (NOW OPM) ARE ENTITLED TO RETROACTIVE TEMPORARY PROMOTIONS WITH BACKPAY FOR THE PERIOD BEGINNING WITH THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. SEE RECONSIDERATION OF TURNER CALDWELL, 56 COMP.GEN. 427 (1977). HOWEVER, IN VIEW OF THE COURT OF CLAIMS DECISION IN A. LEON WILSON V. UNITED STATES, CT.CL. NO. 324-81C, ORDER, OCTOBER 23, 1981, WHICH DENIED A TEMPORARY PROMOTION FOR AN OVERLONG DETAIL WE RECENTLY RECONSIDERED OUR TURNER-CALDWELL LINE OF CASES. IN WILSON THE COURT ADDRESSED OUR TURNER-CALDWELL DECISIONS BUT DECLINED TO FOLLOW THEM STATING THAT NEITHER THE APPLICABLE STATUTE (5 U.S.C. SEC. 3341) NOR THE FEDERAL PERSONNEL MANUAL AUTHORIZES A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY IN CASES INVOLVING OVERLONG DETAILS. LIKEWISE, THE COURT FOUND NO ENTITLEMENT UNDER THE BACK PAY ACT, 5 U.S.C. SEC. 5596. IN OUR TURNER- CALDWELL III, B-203564, MAY 25, 1982, WE DECIDED FOR THE REASONS SET FORTH THEREIN THAT THE WILSON DECISION IS A REASONABLE INTERPRETATION OF THE STATUTE AND REGULATIONS GOVERNING DETAILS, FOLLOWS A CLEAR LINE OF PRECEDENT BY THE COURT, AND IS CONSISTENT WITH THE VIEWS ADOPTED BY THE DEPARTMENT OF JUSTICE AND THE OFFICE OF PERSONNEL MANAGEMENT. ACCORDINGLY, WE DECIDED TO FOLLOW THE WILSON DECISION AND DENY ALL PENDING AND FUTURE CLAIMS BASED ON OUR TURNER-CALDWELL LINE OF DECISIONS. THUS, MR. DAVIDSON WOULD NOT BE ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY UNDER TURNER CALDWELL FOR A DETAIL TO A HIGHER-GRADE POSITION.

AS A RESULT OF THE GAO PERSONNEL ACT OF 1980, PUBLIC LAW 96-191, FEBRUARY 15, 1980, 94 STAT. 27, DETAILS OF GAO EMPLOYEES WOULD NOT BE A MATTER WITHIN THE JURISIDICTION OF THE OFFICE OF PERSONNEL MANAGEMENT. THUS, THE REGULATION UPON WHICH OUR TURNER-CALDWELL DECISIONS WERE BASED WOULD NOT BE APPLICABLE TO GAO AS OF OCTOBER 1, 1980. UNDER THE GAO PERSONNEL MANAGEMENT SYSTEM DISCRETION TO DETAIL AN EMPLOYEE TO A HIGHER-GRADE POSITION LASTS NO LONGER THAN 120 DAYS UNLESS PROPER ADMINISTRATIVE PROCEDURES FOR EXTENDING THE DETAIL ARE FOLLOWED. SEE GAO ORDER NO. 23001, OCTOBER 1, 1980, "EMPLOYMENT (GENERAL)" CHAPTER 4, PARAGRAPH 3C AND PARAGRAPH 7A(3) OF CHAPTER 1, GAO ORDER 2335.6, JANUARY 14, 1981 (FORMERLY GAO ORDER NO. 0825.1, MAY 19, 1977) "COMPETITIVE SELECTION PROGRAM." HOWEVER, THERE IS NO PROVISION IN THE GAO PERSONNEL REGULATIONS WHICH REQUIRES A TEMPORARY PROMOTION WITH BACKPAY FOR AN IMPROPERLY EXTENDED DETAIL. THUS, MR. DAVIDSON WOULD NOT BE ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY UNDER THE GAO PERSONNEL MANAGEMENT SYSTEM FOR THE PERIOD BEGINNING OCTOBER 1, 1980. TURNER-CALDWELL III AND WILSON.

IN ACCORDANCE WITH THE ABOVE, MR. DAVIDSON'S CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY MAY NOT BE ALLOWED.