B-211143-OM, MAY 16, 1983

B-211143-OM, MAY 16, 1983

SUBJECT: PETER MCMENAMIN - CLAIM FOR RETROACTIVE TEMPORARY PROMOTION AND BACKPAY - B-211143-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

THIS IS IN RESPONSE TO A MEMORANDUM FROM THE CHIEF, PAYMENT BRANCH, DATED MARCH 11, 1983, REQUESTING ADVICE ON THE CLAIM OF MR. PETER D. MCMENAMIN, AN EMPLOYEE OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS), FOR A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY. THE ISSUE FOR REVIEW IS WHETHER HHS ACTED CORRECTLY IN APPLYING THE RULE WE ANNOUNCED IN TURNER- CALDWELL III, B-203564, MAY 25, 1982, 61 COMP.GEN. 408, TO THE CLAIM OF MR. MCMENAMIN FOR A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY FOR THE TIME HE SPENT ON DETAIL TO A HIGHER LEVEL POSITION DURING 1979, 1980, AND 1981. AS DISCUSSED BELOW, WE BELIEVE THAT HHS INCORRECTLY APPLIED OUR DECISION IN TURNER-CALDWELL III TO MR. MCMENAMIN'S CLAIM.

MR. MCMENAMIN WAS A GRADE GS-13 ECONOMIST, EMPLOYED BY THE HEALTH CARE FINANCING ADMINISTRATION (HCFA) OF HHS WHEN HE WAS TEMPORARILY DETAILED TO THE GRADE GS-15 POSITION OF ACTING BRANCH CHIEF OF THE NON INSTITUTIONAL STUDIES BRANCH OF HCFA ON JANUARY 17, 1979. DURING MR. MCMENAMIN'S TENURE AS ACTING BRANCH CHIEF, HE WAS PAID AT THE GRADE GS 13 LEVEL, BUT THE BRANCH CHIEF POSITION WAS CLASSIFIED AS A GRADE GS-15 POSITION FROM THE TIME MR. MCMENAMIN BEGAN ACTING IN THAT CAPACITY UNTIL THE POSITION WAS RECLASSIFIED TO GRADE GS-14 ON OCTOBER 10, 1980. MR. MCMENAMIN WAS PERMANENTLY ASSIGNED TO THE GRADE GS-14 POSITION ON JANUARY 25, 1980.

ON JULY 2, 1981, MR. MCMENAMIN FILED A CLAIM WITH HHS FOR RETROACTIVE PROMOTION AND BACKPAY FOR THE PERIOD DURING WHICH HE WAS TEMPORARILY ASSIGNED TO A POSITION AT THE GRADES GS-14 AND GS-15 LEVELS. BY A MEMORANDUM DATED OCTOBER 7, 1981, THE DIRECTOR, DIVISION OF HUMAN RESOURCES OF HHS, APPROVED MR. MCMENAMIN'S CLAIM IN PART, DENYING ONLY THOSE PARTS OF THE CLAIM WHICH WERE PRIOR TO HIS ELIGIBILITY FOR PROMOTION BASED ON HIS TIME-IN-GRADE. THE OCTOBER 7, 1981 MEMORANDUM READ, IN PART, AS FOLLOWS:

"THIS IS IN RESPONSE TO YOUR JULY 2, 1981 CLAIM FOR RETROACTIVE TEMPORARY PROMOTION AND BACKPAY. ***

"WHILE WE ARE NOT APPROVING YOUR CLAIM AS SUBMITTED, I AM PLEASED TO ADVISE YOU THAT YOUR CLAIM IS APPROVED IN PART AS OUTLINED BELOW. ***

"WE HAVE TAKEN STEPS TO PROCESS THE TEMPORARY PROMOTIONS OUTLINED ABOVE. ATTACHED YOU WILL FIND COPIES OF PERSONNEL ACTIONS EFFECTING YOUR TEMPORARY PROMOTIONS. YOU WILL RECEIVE COMPENSATION FOR THIS DETAIL SHORTLY."

THE APPLICABLE STANDARD FORM (SF) 50'S DOCUMENTING THESE TEMPORARY PROMOTIONS TO GRADE GS-14 AND GRADE GS-15 WERE PREPARED AND WERE SIGNED ON SEPTEMBER 28, 1981. THIS PAPERWORK NECESSARY TO PAY MR. MCMENAMIN WAS FORWARDED TO THE HHS CENTRAL PAYROLL OFFICE, WHERE IT WAS RECEIVED NO LATER THAN OCTOBER 5, 1981. PROCESSING OF THIS PAYMENT WAS INITIALLY DELAYED DUE TO A BACKLOG OF CLAIMS IN THE HHS CENTRAL PAYROLL OFFICE IN THE FALL OF 1981. SOON THEREAFTER, THE COURT OF CLAIMS HANDED DOWN ITS DECISION IN WILSON V. UNITED STATES, NO. 324-81C, ORDER DATED OCTOBER 23, 1981. SUBSEQUENT TO THE ISSUANCE OF THE WILSON DECISION, HHS FROZE THE PROCESSING OF ALL AFFECTED BACKPAY CLAIMS PENDING GUIDANCE FROM THE HHS OFFICE OF GENERAL COUNSEL. A MARCH 15, 1982 MEMORANDUM FROM THE HHS OFFICE OF GENERAL COUNSEL, APPARENTLY INTERPRETING THE WILSON DECISION, INSTRUCTED THE HHS PAY SYSTEMS DIVISION TO MAKE NO BACKPAY AWARDS UNLESS THE EMPLOYEE WAS ENTITLED TO SUCH PAY PURSUANT TO A REGULATION OR COLLECTIVE BARGAINING AGREEMENT.

ON MAY 25, 1982, OUR OFFICE ISSUED OUR DECISION IN TURNER-CALDWELL III, 61 COMP.GEN. 408 (1982) IN WHICH WE ESSENTIALLY ADOPTED THE POSITION OF THE COURT OF CLAIMS IN WILSON THAT TEMPORARY PROMOTIONS FOR OVERLONG DETAILS WERE NOT AUTHORIZED BY 5 U.S.C. SEC. 3341 (1976), THE FEDERAL PERSONNEL MANUAL, OR THE BACK PAY ACT, 5 U.S.C. SEC. 5596, AND THEREFORE WERE NOT ALLOWABLE IN THE ABSENCE OF A NONDISCRETIONARY PROVISION TO TEMPORARILY PROMOTE. THIS DECISION OVERTURNED OUR PRIOR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), SUSTAINED IN 56 COMP.GEN. 427 (1977), WHICH HAD HELD THAT SUCH TEMPORARY PROMOTIONS WITH BACKPAY WERE GENERALLY ALLOWABLE WHEN AN EMPLOYEE WAS DETAILED TO A HIGHER LEVEL POSITION FOR MORE THAN 120 DAYS WITHOUT PRIOR CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) APPROVAL. HOWEVER, OUR DECISION IN TURNER-CALDWELL III, BY ITS OWN TERMS, WAS TO BE APPLIED ONLY PROSPECTIVELY:

"SINCE OUR DECISION OF TODAY REPRESENTS A CHANGED INTERPRETATION OF LAW, WE WILL LIMIT THE DECISION TO PROSPECTIVE APPLICATION. PRIOR DECISIONS AND SETTLEMENTS OF CLAIMS BY OUR OFFICE OR OTHER FEDERAL AGENCIES WHICH WERE MADE PURSUANT TO OUR TURNER-CALDWELL DECISIONS WILL NOT BE DISTURBED. HOWEVER, CLAIMS WHICH AROSE OR WERE FILED PRIOR TO THE WILSON DECISION AND WHICH HAVE NOT BEEN DECIDED MUST BE DENIED. SEE, FOR EXAMPLE, 56 COMP.GEN. 551 (1977), AMPLIFIED IN 58 COMP.GEN. 345 (1979)." 61 COMP.GEN. 408, AT 410.

A MEMORANDUM BY THE HHS OFFICE OF GENERAL COUNSEL DATED JULY 26, 1982 REGARDING "RETROACTIVE TEMPORARY PROMOTION" INTERPRETED OUR DECISION IN TURNER-CALDWELL III AND DISCUSSED ITS PROSPECTIVE EFFECT AS FOLLOWS:

"THE COMPTROLLER GENERAL'S DECISION DOES RAISE A QUESTION REGARDING PAYMENT OF CLAIMS PENDING IN THE AGENCY AT THE TIME IT WAS ISSUED. STATES THAT CLAIMS WHICH AROSE, OR WERE FILED PRIOR TO THE WILSON DECISION (OCTOBER 23, 1981) AND WHICH HAVE NOT BEEN DECIDED MUST BE DENIED. WE READ THAT LANGUAGE TO MEAN THAT SUCH CLAIMS THAT HAVE NOT ACTUALLY BEEN PAID MAY NOT BE BUT, AS STATED IN OUR OPINION, THOSE THAT WERE PAID PRIOR TO THE WILSON DECISION NEED NOT BE SUBJECT TO COLLECTION ACTION."

MR. MCMENAMIN WAS LATER ADVISED BY HHS THAT, BASED ON THE WILSON DECISION, OUR DECISION IN TURNER-CALDWELL III, AND THE MEMORANDUM FROM HHS OFFICE OF GENERAL COUNSEL, QUOTED ABOVE, HIS CLAIM WOULD BE DENIED.

WE BELIEVE THAT HHS HAS INCORRECTLY INTERPRETED OUR DECISION IN TURNER CALDWELL III BY REFUSING TO PAY MR. MCMENAMIN BACKPAY FOR HIS OVERLONG DETAIL. THE HHS OFFICE OF GENERAL COUNSEL MEMORANDUM INDICATES THAT IT IS THE UNDERSTANDING OF HHS THAT OUR DECISION IN TURNER-CALDWELL III APPLIES TO ALL CLAIMS NOT PAID PRIOR TO THE DATE OF THAT DECISION, MAY 25, 1982. HOWEVER, A CAREFUL READING OF OUR DECISION INDICATES THAT, FOR PURPOSES OF APPLICATION OF THAT DECISION, THE RELEVANT DATE IS THE DATE A CLAIM IS DECIDED OR SETTLED, NOT THE DATE IT IS PAID. WE HELD, "PRIOR DECISIONS *** BY *** OTHER FEDERAL AGENCIES WHICH WERE MADE PURSUANT TO OUR TURNER- CALDWELL DECISIONS WILL NOT BE DISTURBED." 61 COMP.GEN. 408 AT 410. THE OCTOBER 7, 1981 MEMORANDUM FROM THE DIRECTOR OF HUMAN RESOURCES OF HHS TO MR. MCMENAMIN WHICH INFORMED HIM THAT HIS CLAIM WAS "APPROVED IN PART" AMOUNTS TO AN "AGENCY DECISION" ON THAT CLAIM. THE OCTOBER 7, 1981 MEMORANDUM IS FRAMED IN UNEQUIVOCAL TERMS: "YOU WILL IMMEDIATELY BE PROMOTED ***. YOU WILL RECEIVE COMPENSATION FOR THIS DETAIL SHORTLY." DO NOT BELIEVE THAT THE MEMORANDUM WAS ANY LESS AN "AGENCY DECISION" BY REASON OF THE FACT THAT IT REMAINED FOR THE HHS CENTRAL PAYROLL DIVISION TO ARITHMETICALLY CALCULATE THE AMOUNT DUE AND ISSUE THE CHECK.

OUR POSITION WITH REGARD TO MR. MCMENAMIN'S CLAIM IS ANALOGOUS TO OUR DECISIONS REGARDING ENTITLEMENT TO A RETROACTIVE PROMOTION WHERE THE APPROVING OFFICIAL HAS APPROVED THE PROMOTION REQUEST. IN THOSE DECISIONS WE HELD THAT ONCE THE PROMOTION HAD BEEN APPROVED, ALL THAT REMAINS TO EFFECTUATE THAT PROMOTION IS A SERIES OF MINISTERIAL ACTS, AND A RETROACTIVE PROMOTION IS THE REMEDY FOR THE FAILURE OR DELAY IN ACCOMPLISHING THOSE MINISTERIAL ACTS. SEE THE DISCUSSION IN JOHN CAHILL, 59 COMP.GEN. 58, AT 61 (1978).

BECAUSE THE RECORD INDICATES THAT HHS DECIDED TO PAY MR. MCMENAMIN PRIOR TO OUR DECISION IN TURNER-CALDWELL III, WE BELIEVE THAT HHS INCORRECTLY APPLIED THAT DECISION TO HIS CLAIM AND HAS WRONGLY REFUSED TO PAY HIM BACKPAY PURSUANT TO THE TERMS OF THE OCTOBER 7, 1981 HHS MEMORANDUM. MR. MCMENAMIN'S CLAIM SHOULD BE SETTLED IN ACCORDANCE WITH THESE INSTRUCTIONS. WE ARE RETURNING FILE Z-2846729.

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