B-88660, SEPTEMBER 20, 1949, 29 COMP. GEN. 135

B-88660: Sep 20, 1949

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WAS DEMOTED TO A POSITION AT A LOWER GRADE AND SALARY APPARENTLY ON THE BASIS THAT HE DID NOT HAVE A COMPETITIVE STATUS. IS NOT ENTITLED TO BE PAID THE DIFFERENCE BETWEEN THE HIGHER SALARY RATE AND THE LOWER RATE FOR THE PERIOD OF DEMOTION. SUCH EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION FOR THE POSITION OCCUPIED DURING SUCH PERIOD. THE FACTS GIVING RISE TO THE QUESTION ARE STATED IN SAID LETTER AS FOLLOWS: THE CLAIM PRESENTED IS BASED UPON THE FOLLOWING FACTS: ON DECEMBER 15. THE EMPLOYEE WAS DEMOTED FROM AN INVESTIGATOR POSITION CAF-9. AT THE TIME HE WAS SUBJECTED TO THE REDUCTION IN FORCE ACTION. HE DID NOT HAVE A COMPETITIVE CIVIL SERVICE STATUS. HE WAS LISTED IN A NON-STATUS SUBGROUP AND IN THAT GROUP WAS REACHED IN REGULAR ORDER ON THE RETENTION REGISTER IN ACCORDANCE WITH CIVIL SERVICE REGULATION 20.9.

B-88660, SEPTEMBER 20, 1949, 29 COMP. GEN. 135

COMPENSATION - DEMOTIONS - RESTORATION - COMPENSATION RIGHTS FOR INTERVENING PERIOD AN EMPLOYEE WHO, AS A RESULT OF A REDUCTION IN FORCE, WAS DEMOTED TO A POSITION AT A LOWER GRADE AND SALARY APPARENTLY ON THE BASIS THAT HE DID NOT HAVE A COMPETITIVE STATUS, AND WHO PERFORMED THE DUTIES OF THAT POSITION WHILE EMPLOYED AT THE LOWER SALARY UNTIL PROMOTED TO HIS FORMER POSITION AFTER HAVING RECEIVED A COMPETITIVE STATUS RETROACTIVE TO A DATE PRECEDING THE DEMOTION, IS NOT ENTITLED TO BE PAID THE DIFFERENCE BETWEEN THE HIGHER SALARY RATE AND THE LOWER RATE FOR THE PERIOD OF DEMOTION; INSTEAD, SUCH EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION FOR THE POSITION OCCUPIED DURING SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, SEPTEMBER 20, 1949:

THERE HAS BEEN CONSIDERED THE MATTER PRESENTED BY THE ACTING ATTORNEY GENERAL IN AN UNDATED LETTER, RECEIVED HERE AUGUST 16, 1949, REQUESTING DECISION UPON THE QUESTION OF WHETHER AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE OF YOUR DEPARTMENT MAY BE PAID THE DIFFERENCE IN SALARY BETWEEN $4,651.20 AND $3,898.80 PER ANNUM FOR THE PERIOD DECEMBER 15, 1946 TO MAY 10, 1948, BECAUSE OF A DEMOTION IN GRADE ALLEGED TO BE CONTRARY TO CIVIL SERVICE REGULATIONS.

THE FACTS GIVING RISE TO THE QUESTION ARE STATED IN SAID LETTER AS FOLLOWS:

THE CLAIM PRESENTED IS BASED UPON THE FOLLOWING FACTS: ON DECEMBER 15, 1946, AS A RESULT OF A REDUCTION IN FORCE, THE EMPLOYEE WAS DEMOTED FROM AN INVESTIGATOR POSITION CAF-9, $4651.20 PER ANNUM TO AN IMMIGRANT INSPECTOR POSITION GRADE 5, $3898.80 PER ANNUM. AT THE TIME HE WAS SUBJECTED TO THE REDUCTION IN FORCE ACTION, HE DID NOT HAVE A COMPETITIVE CIVIL SERVICE STATUS. HE WAS LISTED IN A NON-STATUS SUBGROUP AND IN THAT GROUP WAS REACHED IN REGULAR ORDER ON THE RETENTION REGISTER IN ACCORDANCE WITH CIVIL SERVICE REGULATION 20.9.

ON DECEMBER 18, 1947 THE CIVIL SERVICE COMMISSION CONFERRED UPON THE EMPLOYEE A COMPETITIVE CIVIL SERVICE STATUS TO BE EFFECTIVE AS OF JUNE 19, 1941. ON MAY 10, 1948 THE EMPLOYEE WAS PROMOTED FROM THE IMMIGRANT INSPECTOR GRADE 5 POSITION, $3898.80 PER ANNUM, TO HIS FORMER POSITION AS INVESTIGATOR, CAF-9 $4651.20 PER ANNUM. THE CLAIM FOR PAYMENT OF THE DIFFERENCE IN PAY IS BASED UPON THE THEORY THAT THE CONFERRING OF STATUS EFFECTIVE AS OF JUNE 19, 1941 MADE THE ACTION ON A NON-STATUS BASIS TAKEN IN 1946 IN CONTRAVENTION OF THE CIVIL SERVICE REGULATION.

THE LETTER FURTHER STATES THAT THE EMPLOYEE WAS PERFORMING THE DUTIES OF THE GRADE 5 POSITION AT ALL TIMES WHILE EMPLOYED AT THE LOWER SALARY.

NO LAW OR REGULATION HAS BEEN CALLED TO ATTENTION, NOR AM I AWARE OF ANY, WHICH WOULD AUTHORIZE ,BACK PAY" AT A HIGHER SALARY UNDER THE CIRCUMSTANCES HEREIN PRESENT. WHERE A PERSON IS APPOINTED TO SERVE IN A CERTAIN GRADE AT A SPECIFIED RATE AND PERFORMS THE DUTIES OF THAT POSITION DURING A PARTICULAR PERIOD OF TIME, HE IS ENTITLED ONLY TO THE COMPENSATION FOR THAT POSITION. SEE, GENERALLY, COLEMAN V. UNITED STATES, 100 C.1CLS. 41; DVORKIN V. UNITED STATES, 101 ID. 296; UNITED STATES V. MCLEAN, 95 U.S. 750. ALSO, SEE 11 COMP. GEN. 115, 118; 16 ID. 451; 23 ID. 486; AND CF. 28 ID. 200, 205; ID. 277. ACCORDINGLY, AS THE EMPLOYEE HERE CONCERNED APPEARS TO HAVE BEEN PAID IN FULL THE COMPENSATION FIXED FOR THE POSITION OCCUPIED BY HIM DURING THE PERIOD IN QUESTION, HE IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION FOR THAT PERIOD. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.