B-168715, JAN. 22, 1970

B-168715, JAN. 22, 1970

CIVIL PAY--PROMOTIONS--RETROACTIVE DECISION TO SECRETARY OF THE TREASURY CONCERNING LEGALITY OF CORRECTIVE PERSONNEL ACTIONS OF BUREAU OF CUSTOMS. CUSTOMS EMPLOYEES WHO WERE NOT PROMOTED TO TRAINEE-JOURNEYMEN POSITIONS BECAUSE VARIOUS REGIONAL COMMISSIONERS MISINTERPRETED A LETTER ESTABLISHING THE POSITION AND REQUIREMENTS MAY NOT HAVE SUCH FAILURE REGARDED AS NONDISCRETIONARY OR BASED ON A VESTED RIGHT. WHILE EMPLOYEES MAY HAVE BEEN ELIGIBLE FOR PROMOTION TO THE NEW GRADE THERE WAS NO STATUTORY OR ADMINISTRATIVE REQUIREMENT FOR PROMOTION ON A SPECIFIC DATE. NEITHER WERE THE EMPLOYEES DEPRIVED OF A VESTED RIGHT. A DELAY IN PROCESSING THE PROMOTIONS DOES NOT ENTITLE EMPLOYEES TO HIGHER GRADE UNTIL PROMOTION IS MADE. THEREFORE, THE PROPER EFFECTIVE DATES ARE THE DATES ADMINISTRATIVE ACTION WAS TAKEN TO PROMOTE THE EMPLOYEES. WITH RESPECT TO WAIVER OF ERRONEOUS PAYMENTS RESULTING FROM ACTIONS, MATTER SHOULD BE SUBMITTED IN ACCORDANCE WITH REGULATIONS.

TO MR. SECRETARY:

BY LETTER DATED DECEMBER 24, 1969, REFERENCE CC 165.3 S, THE ASSISTANT SECRETARY OF THE TREASURY REQUESTED OUR DECISION AS TO THE LEGALITY OF CERTAIN CORRECTIVE PERSONNEL ACTIONS ACCOMPLISHED BY THE BUREAU OF CUSTOMS. THE PERTINENT FACTS OF THE MATTER ARE STATED IN THE ASSISTANT SECRETARY'S LETTER AS FOLLOWS:

"AT THE TIME OF REORGANIZATION OF THE CUSTOMS SERVICE, WHICH OCCURRED BETWEEN NOVEMBER 1965 AND JUNE 1966, PURSUANT TO THE PRESIDENT'S REORGANIZATION PLAN NO. 1 OF 1965, THE BUREAU OF CUSTOMS ORGANIZED IMPORT SPECIALIST TEAMS, COMBINING INTO ONE KIND OF POSITION THE FUNCTIONS FORMERLY PERFORMED BY CUSTOMS ENTRY OFFICERS, CUSTOMS LIQUIDATORS, AND CUSTOMS EXAMINERS. INITIALLY, TO THE EXTENT POSSIBLE, THREE-MEN TEAMS WERE CREATED INCLUDING PERSONS FAMILIAR WITH ALL THREE SPECIALTIES TO INSURE THAT PROPER CROSS-TRAINING OF ALL EMPLOYEES IN ALL FACETS OF THE NEW SPECIALTY WOULD BE ACCOMPLISHED. AT THAT TIME, EACH TEAM, IN GENERAL, WAS TO CONSIST OF A TEAM LEADER POSITION, GS-12, AN ASSOCIATE POSITION, GS -11, AND A JOURNEYMAN POSITION, GS-9. TRAINEE-JOURNEYMAN PROMOTIONS WERE LIMITED TO GS-9, WITH MERIT PROMOTION PLAN PROCEDURES REQUIRED IN FILLING POSITIONS AT GS-11 AND ABOVE.

"FOLLOWING THIS INITIAL IMPLEMENTATION, A STUDY WAS UNDERTAKEN BY THE BUREAU OF CUSTOMS ON APRIL 13, 1967, TO DETERMINE THE PERMANENT ORGANIZATION OF SUCH TEAMS. AS A RESULT, A DECISION WAS ISSUED BY THE COMMISSIONER OF CUSTOMS ON OCTOBER 11, 1967, PROVIDING FOR TWO-MEN TEAMS, IN GENERAL, WITH THREE-MEN TEAMS AT NEW YORK. THREE-MEN TEAMS WERE ALSO PERMITTED IN OTHER LOCATIONS IN SPECIAL CIRCUMSTANCES WITH PRIOR BUREAU APPROVAL. THIS DECISION ESTABLISHED GS-11 AS THE GRADE FOR THE ASSOCIATE POSITION WHERE THE TEAM LEADER WAS A GS-12 WITHOUT REGARD TO THE NUMBER OF MEMBERS OF A TEAM (TWO OR THREE), AND FOR TRAINEE-JOURNEYMAN PROMOTIONS TO THE GS-11 LEVEL.

"IN APRIL 1969, AS A RESULT OF A LETTER FROM THE NATIONAL CUSTOMS SERVICE ASSOCIATION, IT WAS FOUND THAT THE COMMISSIONER OF CUSTOMS' DECISION OF OCTOBER 11, 1967, HAD BEEN MISINTERPRETED BY THE OFFICE OF THE REGIONAL COMMISSIONER OF CUSTOMS, NEW YORK, AND THAT MERIT PROMOTIONS RATHER THAN TRAINEE-JOURNEYMAN PROMOTIONS WERE BEING MADE TO ASSOCIATE POSITIONS. CORRECT THIS MISINTERPRETATION, BY LETTER DATED MAY 23, 1969, THE COMMISSIONER OF CUSTOMS ADVISED THE NEW YORK OFFICE THAT HIS OCTOBER 11, 1967, DECISION SET THE JOURNEYMAN GRADE OF THE ASSOCIATE TEAM MEMBER AT GS -11, AND THAT RESORT TO MERIT PROMOTION PLAN PROCEDURES FOR THIS POSITION WAS NO LONGER NECESSARY SINCE THAT DATE. THIS WAS FOLLOWED ON MAY 27, 1969, BY THE ISSUANCE OF A CLARIFYING BUREAU OF CUSTOMS CIRCULAR TO ALL REGIONAL COMMISSIONERS. SUBSEQUENTLY, AFTER FURTHER INQUIRY WAS MADE BY THE REGIONAL COMMISSIONER OF CUSTOMS AT NEW YORK, THE BUREAU ON JULY 7, 1969, ADVISED THE NEW YORK OFFICE THAT ANY PROMOTIONS OF IMPORT SPECIALISTS EFFECTED UNDER THE MERIT PROMOTION PLAN SINCE OCTOBER 11, 1967, RATHER THAN UNDER THE TRAINEE-JOURNEYMAN CONCEPT, SHOULD BE CONSIDERED ADMINISTRATIVE ERRORS AND THAT RETROACTIVE ACTION SHOULD BE TAKEN TO CORRECT OBVIOUS ERRORS IN SUCH PROMOTIONS. IN ALL, 27 SUCH CORRECTIVE ACTIONS WERE EFFECTUATED AT NEW YORK AND 6 AT NEW ORLEANS, AS PER THE ATTACHED LISTING (EXHIBIT I). THERE WERE ALSO 8 CASES AT NEW YORK WHERE TRAINEE-JOURNEYMAN PROMOTIONS THAT WERE ALREADY EFFECTUATED WERE CORRECTED TO REFLECT AN EARLIER EFFECTIVE DATE (EXHIBIT II).

"SUBSEQUENT INQUIRIES BY THE BUREAU OF CUSTOMS TO ALL REGIONAL OFFICES DISCLOSED THAT THE OCTOBER 11, 1967, DECISION HAD ALSO BEEN MISINTERPRETED IN THE BALTIMORE, MIAMI, AND SAN FRANCISCO CUSTOMS REGIONS. ACCORDINGLY, THESE OFFICES WERE ADVISED THAT THE FAILURE IN MAKING TRAINEE-JOURNEYMAN PROMOTIONS WAS AN ADMINISTRATIVE ERROR ON THEIR PART AND THAT APPROPRIATE CORRECTIVE ACTION SHOULD BE TAKEN ON THIS BASIS. HOWEVER, BECAUSE OF THE CIVIL SERVICE COMMISSION INQUIRY, CORRECTIVE ACTIONS HAVE NOT YET BEEN TAKEN IN THE BALTIMORE, MIAMI OR SAN FRANCISCO REGIONS. THE NUMBER OF SUCH CASES INVOLVED AT BALTIMORE ARE 15, MIAMI 4, AND SAN FRANCISCO 4 (EXHIBIT III). THERE ARE ALSO 2 CASES AT MIAMI WHERE TRAINEE-JOURNEYMAN PROMOTIONS ALREADY EFFECTED SHOULD HAVE BEEN EFFECTUATED ON EARLIER DATES (EXHIBIT IV)."

BUREAU OF CUSTOMS CIRCULAR PER-5-PEP, DATED MAY 27, 1969, REFERRED TO IN THE THIRD PARAGRAPH QUOTED ABOVE PROVIDES THAT ELIGIBILITY FOR PROMOTION TO JOURNEYMAN GRADE GS-11 REQUIRES: 1) AT LEAST ONE YEAR OF SATISFACTORY SERVICE IN GRADE GS-9; 2)DEMONSTRATED ABILITY TO PERFORM AT THE GRADE GS- 11 LEVEL; AND 3) AN ELIGIBLE RATING IN A TECHNICAL PROFICIENCY TEST.

THE ASSISTANT SECRETARY EMPHASIZES THAT THE COMMISSIONER OF CUSTOMS' LETTER OF OCTOBER 11, 1967, WAS INTENDED TO AUTHORIZE ALL REGIONAL COMMISSIONERS TO PROMOTE TO GRADE GS-11 THOSE EMPLOYEES WHO HAD MET THE ABOVE-STATED REQUIREMENTS WITHOUT REGARD TO VACANCIES OR MERIT PROMOTION PLAN PROCEDURES. HE EXPRESSES THE VIEW THAT THE FAILURE OF THE VARIOUS REGIONAL COMMISSIONERS TO TIMELY PROCESS THE GS 11 PROMOTIONS IN QUESTION BECAUSE OF THEIR MISINTERPRETATION OF THE COMMISSIONER'S OCTOBER 11, 1967 LETTER CONSTITUTES AN ADMINISTRATIVE ERROR WHICH JUSTIFIES RETROACTIVE CORRECTIVE ACTION. HOWEVER, SHOULD WE DETERMINE THAT THE RETROACTIVE PROMOTIONS ARE ILLEGAL, THE ASSISTANT SECRETARY REQUESTS THAT THE ERRONEOUS PAYMENTS OF SALARY RESULTING THEREFROM BE CONSIDERED UNDER THE WAIVER PROVISIONS OF PUBLIC LAW 90-616, 5 U.S.C. 5584. ALSO, OUR ADVICE IS SOUGHT AS TO THE CORRECT EFFECTIVE DATES OF THE PROMOTIONS IN QUESTION.

AS A GENERAL RULE AN ADMINISTRATIVE CHANGE IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF A STATUTE SO PROVIDING. COMP. GEN. 706 (1947), 39 ID. 583 (1960), 40 ID. 207 (1960). HOWEVER, WE HAVE PERMITTED ADJUSTMENTS (RETROACTIVELY EFFECTIVE) OF SALARY RATES IN CERTAIN CASES WHEN ERRORS OCCURRED IN FAILURES TO CARRY OUT NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES. SEE 34 COMP. GEN. 380 (1955) AND 39 ID. 550 (1960). ALSO, WE HAVE PERMITTED RETROACTIVE ADJUSTMENTS IN CASES WHERE THE ADMINISTRATIVE ERROR HAS DEPRIVED THE EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION. SEE 21 COMP. GEN. 369, 376 (1941), 37 ID. 300 (1957, 37 ID. 774 (1958)).

WE DO NOT REGARD THE FACTS OF THIS CASE AS FALLING WITHIN THE CLASSES OF CASES DISCUSSED ABOVE. THE EMPLOYEES HERE INVOLVED HAD NO VESTED RIGHT TO BE PROMOTED TO GRADE GS-11 AT ANY SPECIFIC TIME. WHILE THEY MAY HAVE BEEN ELIGIBLE FOR PROMOTIONS TO GRADE GS-11 AT EARLIER DATES, THERE EXISTED NO STATUTORY OR ADMINISTRATIVE REQUIREMENT THAT THEY BE PROMOTED ON SPECIFIC DATES. RATHER, THE DATE OF PROMOTION OF AN IMPORT SPECIALIST TO GRADE GS- 11 IS A MATTER WITHIN THE DISCRETIONARY AUTHORITY OF THE REGIONAL COMMISSIONER SUBJECT TO THE EMPLOYEE HAVING SATISFIED THE ABOVE-LISTED REQUIREMENTS FOR ELIGIBILITY. WE RECOGNIZE, OF COURSE, THE APPARENT INTENT OF THE ADMINISTRATIVE INSTRUCTIONS THAT PROMOTION OF THE EMPLOYEE BE MADE WITHIN A REASONABLE TIME AFTER HE ACQUIRES ELIGIBILITY. A DELAY BY THE REGIONAL COMMISSIONER TO EFFECTUATE THE PROMOTION, HOWEVER, DOES NOT ENTITLE THE EMPLOYEE TO THE SALARY OF THE HIGHER GRADE UNTIL THE PROMOTION IS MADE. IN SUCH CIRCUMSTANCES THERE IS FOR APPLICATION THE GENERAL RULE THAT THE EFFECTIVE DATE OF A SALARY CHANGE BASED EXCLUSIVELY ON ADMINISTRATIVE ACTION IS THE DATE WHEN ACTION IS TAKEN BY THE PROPER ADMINISTRATIVE OFFICIAL OR A SUBSEQUENT DATE FIXED BY HIM. 21 COMP. GEN. 95 (1941). IN ACCORDANCE WITH THAT RULE, THE PROPER EFFECTIVE DATES OF THE PROMOTIONS IN QUESTION ARE THE DATES ON WHICH PROPER ADMINISTRATIVE ACTION INITIALLY WAS TAKEN TO PROMOTE THE EMPLOYEES TO GRADE GS-11 EITHER UNDER THE MERIT PROMOTION PLAN OR THE TRAINEE-JOURNEYMAN PLAN, AS THE CASE MAY BE (I.E; THE DATES LISTED IN COLUMN 1 OF EXHIBITS 1 THROUGH 4, TRANSMITTED WITH THE ASSISTANT SECRETARY'S LETTER OF DECEMBER 24).

WITH RESPECT TO THE ERRONEOUS PAYMENTS OF PAY RESULTING FROM THE IMPROPER CORRECTIVE PERSONNEL ACTIONS, THE INFORMATION SUBMITTED DOES NOT SHOW THE NAMES, AMOUNTS, DETERMINATIONS OF GOOD FAITH, ETC; AS REQUIRED. THEREFORE, CONSIDERATION OF WAIVER OF THE OVERPAYMENTS CANNOT BE UNDERTAKEN AT THIS TIME. WE SUGGEST THAT THE REQUEST FOR WAIVER OF THE CLAIMS OF THE UNITED STATES AGAINST THE EMPLOYEES CONCERNED BE REFERRED TO OUR OFFICE IN ACCORDANCE WITH THE STANDARDS FOR WAIVER PRESCRIBED IN CHAPTER III OF TITLE 4, CODE OF FEDERAL REGULATIONS, REVISED, JANUARY 1, 1969.