B-162935, FEB. 20, 1968

B-162935, FEB. 20, 1968

COMPENSATION - BACK PAY - TEMPORARY APPOINTEE DECISION TO ARMY EMPLOYEE SUSTAINING DISALLOWANCE OF CLAIM FOR BACK PAY AT LEXINGTON-BLUE GRASS ARMY DEPOT. EMPLOYEE WHO HAD CAREER STATUS PRIOR TO SEVERAL TEMPORARY APPOINTMENTS SUCH TEMPORARY APPOINTMENTS DO NOT GIVE EMPLOYEE ANY PROTECTIVE PAY EFFECTS OR BENEFITS. SINCE TERMINATION OF A TEMPORARY APPOINTMENT DOES NOT CONSTITUTE AN ADVERSE ACTION EMPLOYEE IS NOT ENTITLED TO BACK PAY.

TO MR. WOODROW W. RUBLE:

YOUR LETTER OF OCTOBER 31, 1967, REQUESTED THAT WE RECONSIDER THE VALIDITY OF YOUR CLAIM FOR BACK PAY FOR THE PERIOD JANUARY 14 TO APRIL 7, 1966, THAT WAS DISALLOWED BY OUR CLAIMS DIVISION'S SETTLEMENT DATED OCTOBER 23, 1967.

THE PERSONNEL OFFICE AT THE LEXINGTON-BLUE GRASS ARMY DEPOT ADVISED US ON JANUARY 27, 1967, AS FOLLOWS:

"IT WILL BE NOTED * * * THAT MR. RUBLE'S TERMINATION (JANUARY 14, 1966) WAS NOT CANCELLED, NOR WAS HE REINSTATED, BUT HE WAS GIVEN A NEW TEMPORARY APPOINTMENT (APRIL 7, 1966) AND WAS THEN REMOVED 6-29-66. FEDERAL PERSONNEL MANUAL 752-1, APPENDIX C STATES THAT TEMPORARY APPOINTEES ARE NOT ENTITLED TO PROCEDURAL PROTECTIONS IN ADVERSE ACTION CASES AND CIVILIAN PERSONNEL REGULATION P1, SECTION 8 STATES THAT ONLY EMPLOYEES WHO ARE SUBJECT TO JOB PROTECTION PROVISIONS ARE ELIGIBLE FOR RETROACTIVE COMPENSATION FOR PERIODS OF UNJUSTIFIED REMOVAL. MR. RUBLE WAS NOT ENTITLED TO JOB PROTECTION PROVISIONS, AND HIS TERMINATION ON 1-14-66 WAS NOT CONSIDERED UNJUSTIFIED.' THE MARCH 21, 1966 LETTER TO WHICH YOU REFER DOES SUGGEST A PROCEDURAL VIOLATION BUT SPECIFICALLY POINTS OUT THAT THE LEXINGTON-BLUE GRASSARMY DEPOT "HAS BEEN ADVISED TO REEMPLOY YOU IN A POSITION OF LIKE GRADE AND PAY.' THERE IS NO INDICATION THEREIN OF ANY SUCH PROCEDURAL VIOLATION AS WOULD REQUIRE A RETROACTIVE RESTORATION ON THE BASIS OF AN UNJUSTIFIED REMOVAL AND NO SUCH ACTION WAS TAKEN.

SECTION 752.103 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS, PART 752, SUBPART A, CONCERNING ADVERSE ACTIONS BY AGENCIES, IS IN PERTINENT PART AS FOLLOWS:

"SEC. 752.103. GENERAL EXCLUSIONS. (A) EMPLOYEES. THE EMPLOYEES COVERED BY THIS PART ARE SHOWN IN SUBPARTS B AND C. IN NO CASE, HOWEVER, DOES ANY OF THIS PART APPLY TO: * * * (3) AN EMPLOYEE OCCUPYING A POSITION IN THE COMPETITIVE SERVICE UNDER A TEMPORARY APPOINTMENT; * * *" THE QUOTED REGULATIONS' PROVISION SAYS, IN EFFECT, THAT THE TERMINATION OF A TEMPORARY APPOINTMENT AT ITS NORMAL EXPIRATION DATE OR PRIOR THERETO FOR ADMINISTRATIVE REASONS DOES NOT CONSTITUTE AN ADVERSE ACTION THEREUNDER. A SIMILAR PROVISION IS CONTAINED IN THE REGULATIONS, PART 771, SECTION 771.204 (B) (2), REGARDING EMPLOYEE GRIEVANCES AND ADMINISTRATIVE APPEALS. THE SETTLEMENT AND THE ADMINISTRATIVE REPORT QUOTED ABOVE MENTION THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 752-1 WHEREIN APPENDIX C "TABLE OF EMPLOYEE COVERAGE" PARAGRAPH C-2 EXPLAINS:

"THE FOLLOWING CATEGORIES OF EMPLOYEES ARE NOT ENTITLED BY THE LLOYD- LAFOLLETTE ACT, THE VETERANS' PREFERENCE ACT, OR THE COMMISSION'S REGULATIONS TO PROCEDURAL PROTECTION IN ADVERSE ACTION CASES:

"A. TEMPORARY APPOINTEES IN THE COMPETITIVE SERVICE, REGARDLESS OF ANY OTHER FACTOR. * * *"

MOREOVER, THE BACK PAY STATUTE APPLICABLE TO YOUR CASE, SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, EXPRESSLY APPLIES ONLY TO EMPLOYEES SERVING IN THE CLASSIFIED SERVICE. PERSONS HOLDING TEMPORARY APPOINTMENTS ARE NOT IN THE CLASSIFIED SERVICE. CONCERNING THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, APPROVED MARCH 30, 1966, 80 STAT. 94, 95, 5 U.S.C. 5596 (B), IT SUFFICES TO SAY THAT SINCE THE ADMINISTRATIVE DETERMINATION IN YOUR CASE WAS MADE PRIOR TO MARCH 30, 1966, THAT STATUTE HAS NO APPLICATION.

YOU SAY THAT YOU HAVE ALMOST 17 YEARS OF CIVILIAN SERVICE. HOWEVER, ALTHOUGH YOU MAY HAVE ACQUIRED A CAREER STATUS IN THE COMPETITIVE SERVICE PRIOR TO YOUR TEMPORARY APPOINTMENTS AT THE LEXINGTON-BLUE GRASS ARMY DEPOT, AS INDICATED ABOVE, SUCH TEMPORARY APPOINTMENTS DID NOT GIVE YOU THE PROTECTIVE PAY EFFECTS OR OTHER BENEFITS THAT YOUR LETTER IMPLIES.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

AS TO YOUR COMMENT ABOUT APPEAL TO HIGHER AUTHORITIES, YOU ARE ADVISED THAT DECISIONS OF THIS OFFICE ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND AGENCIES CONCERNED.