B-171064, FEB 2, 1971

B-171064, FEB 2, 1971

BACK PAY - GRADE PROMOTION DECISION DENYING CLAIM BY DARRELL D. DUNN FOR BACK PAY INCIDENT TO HIS PROMOTION BY THE FEDERAL AVIATION ADMINISTRATION FROM GS-9, STEP 5, TO GS- 11, STEP 1. ALTHOUGH CLAIMANT "VACATED" HIS GS-9 POSITION ON JUNE 30, 1968, BY TAKING ON DUTIES OF A GRADE GS-11 BUT WAS NOT PROMOTED TO GS-11 UNTIL JULY 14, 1968, A PROMOTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION; AND FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM.

TO MR. DARRELL D. DUNN:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8, 1970, CONCERNING YOUR CLAIM FOR BACK PAY BASED ON AN ALLEGED ADMINISTRATIVE ERROR IN REGARD TO YOUR PROMOTION BY THE FEDERAL AVIATION ADMINISTRATION (FAA) FROM GS 9, STEP 5, TO GS-11, STEP 1.

IN SUMMARY THE MATERIAL FACTS SET FORTH IN YOUR LETTER SHOW THAT IN NOVEMBER 1967 ACTION WAS INITIATED BY THE AIRWAY FACILITIES SECTOR CHIEF TO EFFECT A PROMOTION FOR YOU FROM GS-9TO GS-11 WITH A PROPOSED EFFECTIVE DATE OF JANUARY 15, 1968. THE POSITION WAS ADVERTISED AND BECAUSE OF THIS AND OTHER ADMINISTRATIVE CONSIDERATIONS ACTION WAS DELAYED. YOU SUBSEQUENTLY RECEIVED TRAINING IN PREPARATION FOR THE NEW DUTIES YOU WERE TO UNDERTAKE, SOME OF WHICH YOU WERE ASSIGNED TO PERFORM IN MAY 1968. JUNE 30, 1968, YOU RECEIVED A QUALITY INCREASE AWARD FROM GS-9, STEP 4, TO GS-9, STEP 5. ON JULY 14, 1968, YOU RECEIVED A COPY OF FAA FORM 50 STATING THAT YOU WERE SELECTED TO FILL THE GS-11 POSITION AT PENSACOLA WITH THE EFFECTIVE DATE OF JULY 14, 1968. THIS WAS ALSO THE EFFECTIVE DATE OF THE ADJUSTMENT OF PAY RATES PURSUANT TO PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, 81 STAT. 613. YOU WERE PLACED IN GRADE GS-11, STEP 1.

YOUR FIRST CONTENTION IS THAT FAA DELAYED ACTION ON YOUR PROMOTION TO GS- 11 UNTIL JULY 14, 1968, WHEN IT SHOULD HAVE BEEN EFFECTIVE ON JUNE 30, THE DATE ON WHICH YOUR "VACATED" GS-9 POSITION WAS FILLED, AS BOTH YOU AND THE PERSON WHO BID FOR YOUR FORMER GS-9 POSITION SUBMITTED BID SHEETS ON THE SAME DATE. YOU CONTEND THAT YOUR FORMER GS-9 POSITION SHOULD NOT HAVE BEEN FILLED ON JUNE 30, PRIOR TO YOUR VACATING IT ON JULY 14. YOU FURTHER CONTEND THAT THE DELAY IN PROCESSING YOUR PROMOTION HAD THE "APPEARANCE AND EFFECT" OF DELAY FOR THE PURPOSE OF AVOIDING TWO BENEFITS (QUALITY WITHIN GRADE INCREASE AND GRADE PROMOTION) FROM BECOMING EFFECTIVE ON THE SAME DATE.

ACCORDING TO A LETTER DATED DECEMBER 2, 1970, ADDRESSED TO YOU FROM THE CHIEF, PERSONNEL AND TRAINING DIVISION OF THE SOUTHERN REGION OF FAA, THE 2-WEEK DELAY IN EFFECTING YOUR APPOINTMENT WAS DUE TO THE TIME NECESSARY TO PROCESS SUCH MATTERS THROUGH THE PERSONNEL DIVISION. THE FACT THAT THE GS-9 POSITION WAS FILLED BEFORE YOU WERE PROMOTED FROM YOUR FORMER GS-9 TO GS-11 WAS VIEWED AS OF NO SIGNIFICANCE DUE TO THE SHORTNESS OF THE TIME PERIOD INVOLVED (2 WEEKS) AND THE FACT THAT TECHNICALLY THE GS-9 POSITION FILLED ON JUNE 30 WAS A DIFFERENT POSITION FROM THE ONE VACATED BY YOU ON JULY 14.

OUR OFFICE HAS CONSISTENTLY HELD THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. SEE 40 COMP. GEN. 207 (1960). OUR POSITION IS IN ACCORD WITH THAT OF THE COURT OF CLAIMS WHICH HAS HELD THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. SEE COLEMAN V UNITED STATES, 100 CT. CL. 41 (1943); AMUNDSON V UNITED STATES, 128 ID. 80 (1954).

IN THE INSTANT CASE YOU WERE SERVING UNDER AN APPOINTMENT TO A GRADE GS-9 POSITION DURING THE PERIOD IN QUESTION. THE FACT THAT YOU WERE PERFORMING THE DUTIES OF A GRADE GS-11 POSITION AND THAT YOUR PROMOTION TO SUCH POSITION WAS DELAYED BECAUSE OF THE CIRCUMSTANCES CITED ABOVE AFFORDS NO LEGAL BASIS FOR A COMPENSATION ADJUSTMENT.

YOUR SECOND CONTENTION IS THAT AN ADMINISTRATIVE ERROR WAS COMMITTED IN REGARD TO YOUR ASSIGNMENT TO STEP 1 RATHER THAN STEP 2 WHEN YOU WERE PROMOTED TO GRADE GS-11. YOU CONTEND THAT SINCE YOUR PROMOTION BECAME EFFECTIVE ON JULY 14, 1968, THE SAME DATE UPON WHICH THE UPWARD ADJUSTMENT OF FEDERAL PAY RATES PURSUANT TO PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, 81 STAT. 613, BECAME EFFECTIVE, YOUR PROMOTION SHOULD HAVE BEEN PROCESSED AS BEING EFFECTIVE BEFORE THE STATUTORY INCREASE, THEREBY ENTITLING YOU TO A GS-11, STEP 2. THE FAA INSTEAD UTILIZED THE RULING CONTAINED IN 40 COMP. GEN. 184 (1960) WHICH PROVIDES THAT A PROMOTION EFFECTIVE ON THE SAME DATE OF THE STATUTORY INCREASE MUST BE BASED ON THE INCREASED SALARY RATE, THEREBY ENTITLING YOU TO A GS-11, STEP 1.

THE MATTER OF THE APPLICABILITY OF 40 COMP. GEN. 184 TO THE SALARY ADJUSTMENT SPECIFIED IN EXECUTIVE ORDER NO. 11413, JUNE 11, 1968, PROMULGATED PURSUANT TO SECTION 212 OF PUBLIC LAW 90-206, 81 STAT. 634, HAS BEEN THOROUGHLY TREATED BY THIS OFFICE IN LETTER B-171064, NOVEMBER 9, 1970, AND A LETTER DATED AUGUST 4, 1970, BOTH ADDRESSED TO YOU. AS YOU HAVE ASSERTED NO NEW FACTUAL MATERIAL PERTAINING TO THIS ISSUE, WE HAVE NO CHOICE BUT TO REASSERT OUR PREVIOUS POSITION THAT THE RULING CONTAINED IN 40 COMP. GEN. 184 WAS CORRECTLY APPLIED IN YOUR CASE AND YOU WERE CORRECTLY ASSIGNED TO GS-11, STEP 1.

FOR THE REASONS STATED WE DO NOT FIND ANY AUTHORITY UNDER WHICH TO GRANT YOUR CLAIM FOR BACK PAY.