B-209468, JAN 24, 1983

B-209468: Jan 24, 1983

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SINCE THE EMPLOYEE'S CLAIM WAS PENDING AT THE TIME OF OUR DECISION. IT WAS APPROPRIATELY DENIED IN ACCORDANCE WITH TURNER-CALDWELL III. BURRIS - RETROACTIVE PROMOTION AND BACKPAY INCIDENT TO OVERLONG DETAIL: THIS DECISION IS IN RESPONSE TO A REQUEST BY MR. BURRIS CONTENDS THAT HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY BECAUSE OF AN OVERLONG DETAIL TO A GRADE GS-14 POSITION. BURRIS MAINTAINS THAT HIS CASE SHOULD NOT BE TREATED AS A "PENDING" CLAIM SINCE HIS DETAIL WAS PERFORMED IN 1978 AND 1979 AND HIS CLAIM WAS RECEIVED IN OUR OFFICE IN AUGUST 1981. BURRIS' CLAIM WAS FILED WITH OUR CLAIMS GROUP ON AUGUST 27. THE WILSON HOLDING WAS IN DIRECT OPPOSITION TO OUR TURNER-CALDWELL CASES.

B-209468, JAN 24, 1983

DIGEST: FORMER DEPARTMENT OF THE NAVY EMPLOYEE APPEALS DENIAL OF HIS CLAIM FOR A RETROACTIVE PROMOTION AND BACKPAY INCIDENT TO OVERLONG DETAIL. SEE TURNER -CALDWELL III, B-203564, MAY 25, 1982, 61 COMP.GEN. . OUR RULING IN TURNER -CALDWELL III TO NO LONGER GRANT TEMPORARY PROMOTIONS FOR OVERLONG DETAILS APPLIES TO ALL PENDING AND FUTURE CLAIMS. SINCE THE EMPLOYEE'S CLAIM WAS PENDING AT THE TIME OF OUR DECISION, IT WAS APPROPRIATELY DENIED IN ACCORDANCE WITH TURNER-CALDWELL III.

THOMAS W. BURRIS - RETROACTIVE PROMOTION AND BACKPAY INCIDENT TO OVERLONG DETAIL:

THIS DECISION IS IN RESPONSE TO A REQUEST BY MR. THOMAS W. BURRIS, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE NAVY, TO RECONSIDER HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY. OUR CLAIMS GROUP DISALLOWED MR. BURRIS' CLAIM BY SETTLEMENT CERTIFICATE Z-2831788, DATED AUGUST 12, 1982. WE SUSTAIN OUR CLAIMS GROUP'S DENIAL OF THE CLAIM.

MR. THOMAS W. BURRIS CONTENDS THAT HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY BECAUSE OF AN OVERLONG DETAIL TO A GRADE GS-14 POSITION. OUR CLAIMS GROUP DISALLOWED MR. BURRIS' CLAIM ON THE BASIS OF TURNER-CALDWELL III, B-203564, MAY 25, 1982, 61 COMP.GEN. , WHICH, FOLLOWING THE COURT OF CLAIMS DECISION IN A. LEON WILSON V. UNITED STATES, CT.CL. NO. 324-81C, ORDER, OCTOBER 23, 1981, DENIED TEMPORARY PROMOTIONS FOR OVERLONG DETAILS WITH RESPECT TO PENDING AND FUTURE CLAIMS RECEIVED BY OUR OFFICE. MR. BURRIS MAINTAINS THAT HIS CASE SHOULD NOT BE TREATED AS A "PENDING" CLAIM SINCE HIS DETAIL WAS PERFORMED IN 1978 AND 1979 AND HIS CLAIM WAS RECEIVED IN OUR OFFICE IN AUGUST 1981.

MR. BURRIS' CLAIM WAS FILED WITH OUR CLAIMS GROUP ON AUGUST 27, 1981. SHORTLY THEREAFTER THE COURT OF CLAIMS RULED IN WILSON V. UNITED STATES THAT NEITHER THE APPLICABLE STATUTE (5 U.S.C. SEC. 3341) NOR THE FEDERAL PERSONNEL MANUAL AUTHORIZED A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY IN CASES INVOLVING OVERLONG DETAILS. WILSON, CITED ABOVE.

THE WILSON HOLDING WAS IN DIRECT OPPOSITION TO OUR TURNER-CALDWELL CASES, 55 COMP.GEN. 539 (1975), SUSTAINED IN 56 COMP.GEN. 427 (1977). UNDER TURNER-CALDWELL WE HAD HELD THAT EMPLOYEES DETAILED TO HIGHER GRADE POSITIONS FOR MORE THAN 120 DAYS, WITHOUT PRIOR APPROVAL BY THE UNITED STATES CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT), WERE ENTITLED TO TEMPORARY PROMOTIONS AND BACKPAY BEGINNING ON THE 121ST DAY OF THE DETAIL. DUE TO THE CONFLICT BETWEEN THE WILSON CASE AND OUR TURNER- CALDWELL DECISIONS, OUR OFFICE FOUND IT NECESSARY TO RECONSIDER OUR POLICY IN CASES INVOLVING OVERLONG DETAILS TO HIGHER GRADE POSITIONS. AS A RESULT, ALL CLAIMS PREMISED ON TURNER CALDWELL III WERE SUSPENDED UNTIL THE PROCESS OF

AFTER A THOROUGH REVIEW, WE CONCLUDED THAT THE COURT OF CLAIMS DECISION IN WILSON WAS A REASONABLE INTERPRETATION OF LAW. THEREFORE, WE RULED THAT WE WOULD ABIDE BY THE WILSON HOLDING AND WOULD NO LONGER FOLLOW OUR PRIOR TURNER-CALDWELL DECISIONS WITH RESPECT TO PENDING OR FUTURE CASES. TURNER-CALDWELL III, CITED ABOVE. SPECIFICALLY WE STATED:

"*** CLAIMS WHICH AROSE OR WERE FILED PRIOR TO THE WILSON DECISION AND WHICH HAVE NOT BEEN DECIDED MUST BE DENIED ***."

MR. BURRIS' CLAIM WAS FILED PRIOR TO THE DECISION IN WILSON V. UNITED STATES, CITED ABOVE. NO ACTION WAS TAKEN ON HIS CLAIM UNTIL AFTER OUR OFFICE HAD ASSESSED THE IMPACT OF THE COURT OF CLAIMS DECISION ON OUR TURNER-CALDWELL CASES. THUS, MR. BURRIS' CLAIM WAS PENDING WHEN TURNER- CALDWELL III WAS ISSUED AND, THEREFORE, WAS APPROPRIATELY DECIDED UNDER THAT RULING.

ACCORDINGLY, MR. BURRIS' CLAIM IS DENIED.