B-180144, OCT 20, 1976

B-180144, OCT 20, 1976

FORMER CIVILIAN EMPLOYEE OF CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, APPEALED CLASSIFICATION AS ENGINEERING EQUIPMENT OPERATOR, WG 5716-4, TO CIVIL SERVICE COMMISSION (CSC) AND POSITION RECLASSIFIED BY CSC TO WG-6 LEVEL, WITH EFFECTIVE DATE COMPUTED FROM DATE EMPLOYEE FILED WRITTEN APPLICATION WITH AGENCY. CLAIM FOR RETROACTIVE PAY DENIED AS FEDERAL EMPLOYEES ENTITLED ONLY TO SALARIES OF POSITIONS TO WHICH ACTUALLY APPOINTED REGARDLESS OF DUTIES PERFORMED. NEITHER CLASSIFICATION ACT, 5 U.S.C. 5101, ET SEQ., NOR BACK PAY ACT, 5 U.S.C. 5596(1970), CREATES A SUBSTANTIVE RIGHT TO BACK PAY DURING PERIOD OF A CLAIMED WRONGFUL CLASSIFICATION. UNITED STATES V. TESTAN, 424 U.S. 392(1976).

JAMES H. MARSHBURN - POSITION RECLASSIFICATION:

THIS ACTION IS IN RESPONSE TO A REQUEST DATED MARCH 27, 1976, BY MR. JAMES H. MARSHBURN, A RETIRED CIVILIAN EMPLOYEE OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, FOR RECONSIDERATION OF OUR DECISION B-180144, SEPTEMBER 3, 1974, IN WHICH WE SUSTAINED THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION) WHICH ALLOWED HIM ADDITIONAL COMPENSATION ONLY FOR THE PERIOD MARCH 28 THROUGH JULY 17, 1971, INCIDENT TO RECLASSIFICATION OF THE POSITION OCCUPIED BY HIM TO A HIGHER GRADE BY THE UNITED STATES CIVIL SERVICE COMMISSION (CSC).

BRIEFLY STATED, THE PERTINENT FACTS ARE THAT MR. MARSHBURN WAS PROMOTED TO WG-5716-4 ON SEPTEMBER 6, 1964. ON MARCH 23, 1971, HE SUBMITTED A FORMAL WRITTEN COMPLAINT IN WHICH HE STATED THAT HE WAS PERFORMING THE SAME DUTIES AS THE ENGINEERING EQUIPMENT OPERATOR LEADER, WL-6, AND THE ENGINEERING EQUIPMENT OPERATOR, WG-6. HIS CLAIM WAS DENIED BY THE DEPARTMENT OF THE ARMY. BY LETTER DATED AUGUST 31, 1972, THE CSC ADVISED THE AGENCY THAT THE POSITION OCCUPIED BY THE CLAIMANT SHOULD HAVE BEEN CLASSIFIED AS ENGINEERING EQUIPMENT OPERATOR, WG-5716-6. THE COMMISSION ESTABLISHED AN EFFECTIVE DATE FOR RECLASSIFICATION OF THE POSITION TO OCCUR NO LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGAN AFTER THE 60TH DAY FROM THE DATE THE APPLICATION WAS FILED WITH THE AGENCY. THE PROMOTION WAS EFFECTED AT THE BEGINNING OF THE FIRST PAY PERIOD (MARCH 28, 1971) AFTER MARCH 23, 1971, THE LATTER BEING THE DATE THE EMPLOYEE FILED HIS FORMAL WRITTEN COMPLAINT WITH THE AGENCY.

MR. MARSHBURN CONTENDED THAT THE EFFECTIVE DATE OF HIS PROMOTION TO THE WG-6 LEVEL SHOULD HAVE BEEN SEPTEMBER 6, 1964, THE DATE HE WAS PROMOTED TO THE WG-4 GRADE LEVEL. IN REQUESTING REOPENING OF HIS CLAIM, HE RELIES UPON TWO RECENT DECISIONS OF THIS OFFICE, B-184990, FEBRUARY 20, 1976, AND B-183086, DECEMBER 5, 1975.

IN OUR EARLIER DECISION OF SEPTEMBER 3, 1974, TO MR. MARSHBURN, WE STATED THAT AS TO EMPLOYEES UNDER A PREVAILING RATE SYSTEM, SECTION 532.702(B)(11) OF TITLE 5, CODE OF FEDERAL REGULATIONS, PROMULGATED UNDER THE AUTHORITY OF 5 U.S.C. 5115(1970), IN EFFECT AT THE TIME OF THE RECLASSIFICATION OF HIS POSITION, PROVIDED THAT WHEN A POSITION IS R- CLASSIFIED, THE EFFECTIVE DATE OF THE CHANGE OF THE CLASSIFICATION MAY NOT BE EARLIER THAN THE DATE OF THE DECISION NOR LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 60TH DAY FROM THE DATE THE APPLICATION WAS FILED. IT WAS CONCLUDED THAT AS THE CLAIMANT WAS NOT APPOINTED (PROMOTED) TO THE WG-6 GRADE LEVEL UNTIL MARCH 28, 1971, HE WAS NOT ENTITLED TO THE SALARY OF THE HIGHER GRADE FOR ANY PERIOD PRIOR TO SUCH DATE, IRRESPECTIVE OF THE FACT THAT HE MAY HAVE PERFORMED THE DUTIES OF AND WAS OTHERWISE QUALIFIED FOR THE WG-6 POSITION DURING THE INTERIM PERIOD.

THE GENERAL RULE IN CASES OF THIS NATURE IS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS ACTUALLY APPOINTED, REGARDLESS OF THE DUTIES HE PERFORMS. SEE B-183218, MARCH 31, 1975. THUS, WHERE EMPLOYEES OF AN AGENCY BELIEVED THEMSELVES ENTITLED TO PROMOTION TO A HIGHER GRADE OR TO HAVE THE POSITIONS THEY OCCUPIED RECLASSIFIED TO A HIGHER GRADE, AND WERE ULTIMATELY SUCCESSFUL IN SO PERSUADING THE CSC, THEIR ENTITLEMENT TO THE PAY OF THE HIGHER GRADE DID NOT COMMENCE UNTIL THEY WERE ACTUALLY PROMOTED TO THAT GRADE IN ACCORDANCE WITH THE MANDATE OF THE COMMISSION, NOT HAVING OCCUPIED THE HIGHER GRADE POSITION UNTIL THAT TIME. FURTHERMORE, THE ESTABLISHED RULE IS THAT WHEN A POSITION IS RECLASSIFIED TO A HIGHER GRADE AS A RESULT OF AN APPEAL TO THE CSC, THERE IS NO AUTHORITY TO MAKE THE HIGHER SALARY RATE RETROACTIVELY EFFECTIVE. DIANISH, ET AL. V. UNITED STATES, 183 CT.CL. 702(1968); 55 COMP.GEN. 515(1975); AND 52 ID. 631 (1973).

MR. MARSHBURN BELIEVES THAT TWO OF OUR RECENT DECISIONS SUBSTANTIATE HIS CLAIM FOR RETROACTIVE RECLASSIFICATION OF HIS POSITION BY THE COMMISSION. OUR DECISION B-183086, DECEMBER 5, 1975, PUBLISHED AT 55 COMP.GEN. 539, INVOLVED A CLAIM FOR BACK PAY BY AN EMPLOYEE FOR PERFORMING DUTIES OF A HIGHER GRADE POSITION TO WHICH HE HAD BEEN OFFICIALLY DETAILED FOR AN EXTENDED PERIOD OF TIME. WE CONCLUDED THAT EMPLOYEE DETAIL REGULATIONS CONTAINED IN CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL MUST BE CONSTRUED TO THE EFFECT THAT AN AGENCY'S DISCRETIONARY AUTHORITY TO RETAIN AN EMPLOYEE ON DETAIL TO A HIGHER GRADE POSITION CONTINUES NO LONGER THAN 120 DAYS AND THAT THE AGENCY MUST EITHER HAVE SOUGHT PRIOR APPROVAL OF THE COMMISSION FOR AN EXTENSION OF THE DETAIL OR TEMPORARILY PROMOTE THE DETAILED EMPLOYEE AT THE END OF THE SPECIFIED TIME PERIOD, IF HE IS OTHERWISE QUALIFIED. THEREFORE, WE HELD IN B-183086, SUPRA, THAT WHERE AN AGENCY HAS FAILED TO SEEK PRIOR APPROVAL OF THE COMMISSION TO EXTEND AN EMPLOYEE'S DETAIL PERIOD IN A HIGHER GRADE POSITION PAST 120 DAYS, IT HAS A MANDATORY DUTY TO AWARD THE EMPLOYEE A TEMPORARY PROMOTION IF HE CONTINUES TO PERFORM THE HIGHER GRADE POSITION AND IS OTHERWISE QUALIFIED FOR THE POSITION.

OUR DECISION B-184990, FEBRUARY 20, 1976, PUBLISHED AT 55 COMP.GEN. 785, WAS A SIMILAR CASE INVOLVING A CLAIM FOR BACK PAY OF A FEDERAL CIVILIAN EMPLOYEE WHO HAD BEEN OFFICIALLY DETAILED TO PERFORM AND DID IN FACT PERFORM THE DUTIES OF A HIGHER GRADE POSITION FOR A PERIOD IN EXCESS OF 1 YEAR. THERE, WE DETERMINED THAT AS THE AGENCY FAILED TO SEEK APPROVAL OF THE EMPLOYEE'S DETAIL PRIOR TO THE EXPIRATION OF THE 120-DAY TIME LIMIT, SHE BECAME ENTITLED TO A TEMPORARY PROMOTION ON THE 121ST DAY AFTER HER DETAIL COMMENCED, SINCE SHE HAD SATISFIED THE TIME IN-GRADE RESTRICTIONS SET FORTH IN 5 C.F.R. CHAPTER 300, SUBPART F (1969) AND THE DETAIL REGULATIONS WERE SUBSTANTIALLY THE SAME AS THOSE INVOLVED IN B-183086, SUPRA. HERE ENTITLEMENT TO THE TEMPORARY PROMOTION CONTINUED UNTIL THE DATE HERE DETAIL WAS OFFICIALLY TERMINATED.

THE OBVIOUS DIFFERENCE BETWEEN THE INSTANT CASE AND THE TWO AFORE CITED DECISIONS IS THAT MR. MARSHBURN WAS NOT OFFICIALLY DETAILED TO PERFORM THE DUTIES OF THE HIGHER GRADE POSITION, ENGINEERING EQUIPMENT OPERATOR, WG- 5716-6, WHILE THE EMPLOYEES IN THE TWO CITED DECISIONS WERE IN FACT OFFICIALLY DETAILED TO PERFORM THE DUTIES OF THE HIGHER GRADE POSITIONS. HAD THE CLAIMANT BEEN OFFICIALLY DETAILED TO THE WG-6 POSITION, WAS OTHERWISE QUALIFIED FOR THE PROMOTION, AND THE DETAIL REGULATIONS APPLICABLE TO HIM WERE SUBSTANTIALLY THE SAME AS THOSE INVOLVED IN THE TWO DECISIONS HEREINBEFORE DISCUSSED, THEN ON THE 121ST DAY OF HIS "DETAIL," HE WOULD HAVE BEEN ENTITLED TO A TEMPORARY PROMOTION TO THE HIGHER GRADE POSITION. AS THE RECORD DOES NOT SHOW THAT MR. MARSHBURN WAS OFFICIALLY DETAILED TO PERFORM THE DUTIES OF THE WG-6 POSITION, 55 COMP.GEN. 539 AND ID. 785 ARE NOT FOR APPLICATION IN THE CLAIM UNDER CONSIDERATION.

SUBSEQUENT TO OUR SEPTEMBER 3, 1974 DECISION TO MR. MARSHBURN, THE SUPREME COURT OF THE UNITED STATES ADDRESSED THE ISSUE OF WHETHER AN EMPLOYEE OF THE FEDERAL GOVERNMENT HAS A SUBSTANTIAL RIGHT TO BACK PAY DURING THE PERIOD OF AN IMPROPER CLASSIFICATION. IN UNITED STATES V. TESTAN, DECIDED MARCH 2, 1976, CITED AT 424 U.S. 392, THE COURT STATED:

"WE FIND NO PROVISION IN THE CLASSIFICATION ACT THAT EXPRESSLY MAKES THE UNITED STATES LIABLE FOR PAY LOST THROUGH ALLEGEDLY IMPROPER CLASSIFICATIONS. TO BE SURE, IN THE 'PURPOSE' SECTION OF THE ACT, 5 U.S.C. 5101, CONGRESS STATED THAT IT WAS 'TO PROVIDE A PLAN FOR CLASSIFICATION OF POSITIONS WHEREBY . . . THE PRINCIPLE OF EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK WILL BE FOLLOWED.' AND IN SUBSEQUENT SECTIONS, THERE ARE SET FORTH SUBSTANTIVE STANDARDS FOR GRADING PARTICULAR POSITIONS, AND PROVISIONS FOR PROCEDURES TO ENSURE THAT THOSE STANDARDS ARE MET. BUT NONE OF THESE SEVERAL SECTIONS CONTAINS AN EXPRESS PROVISION FOR AN AWARD OF BACK PAY TO A PERSON WHO HAS BEEN ERRONEOUSLY CLASSIFIED."

SUBSEQUENTLY, THE COURT STATED:

" * * * THE ESTABLISHED RULE IS THAT ONE IS NOT ENTITLED TO THE BENEFIT OF A POSITION UNTIL HE HAS BEEN DULY APPOINTED TO IT. UNITED STATES V. MCLEAN, 95 U.S. 750(1877); GANSE V. UNITED STATES, 180 CT.CL. 183, 186, 376 F.2D 900, 902(1967). THE CLASSIFICATION ACT DOES NOT PURPORT BY ITS TERMS TO CHANGE THAT RULE, AND WE SEE NO SUGGESTION IN IT OR IN ITS LEGISLATIVE HISTORY THAT CONGRESS INTENDED TO ALTER IT."

IN THE TESTAN CASE, THE SUPREME COURT ALSO CONSIDERED THE ISSUE OF WHETHER THE BACK PAY ACT, 5 U.S.C. 5596(B), APPLIES TO CLAIMS BASED UPON WRONGFUL CLASSIFICATION OF POSITIONS OCCUPIED BY FEDERAL EMPLOYEES. WAS DETERMINED THAT WHILE THE ACT DOES AUTHORIZE RETROACTIVE RECOVERY OF WAGES WHENEVER A FEDERAL EMPLOYEE HAS "UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE," THE LANGUAGE OF THE STATUTE WAS INTENDED TO PROVIDE A MONETARY REMEDY FOR WRONGFUL REDUCTION IN GRADE, REMOVALS, AND SUSPENSIONS, AND OTHER UNWARRANTED OR UNJUSTIFIED ACTIONS THAT AFFECT PAY OR ALLOWANCES WHICH COULD OCCUR IN THE COURSE OF REASSIGNMENTS AND CHANGES FROM FULL- TIME TO PART-TIME WORK. THE COURT CONCLUDED THAT NEITHER THE CLASSIFICATION ACT NOR THE BACK PAY ACT CREATES A SUBSTANTIVE RIGHT TO BACK PAY DURING THE PERIOD OF A CLAIMED WRONGFUL CLASSIFICATION.

IN LIGHT OF THE CONCLUSION REACHED IN THE TESTAN CASE AND SINCE MR. MARSHBURN IS NOT ENTITLED TO A RETROACTIVE PROMOTION AND BACK PAY UNDER REGULATIONS OF THE CSC, THERE IS NO AUTHORITY UNDER WHICH HIS CLAIM FOR BACK PAY MAY BE GRANTED.

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DETERMINATED REACHED IN OUR EARLIER DECISION OF SEPTEMBER 3, 1974.