B-190124, NOV 23, 1977

B-190124, NOV 23, 1977

1. GENERAL SCHEDULE EMPLOYEE, WHO WAS ON TEMPORARY DUTY IN CADIZ, SPAIN, INCIDENT TO OVERHAUL OF SHIP, STATES THAT HE PERFORMED DUTIES OF A SUPERVISORY SHIP SURVEYOR, WD-8. EMPLOYEE CLAIMS BACK PAY FOR PERIOD OF ALLEGED WRONGFUL CLASSIFICATION. HE HAS NO ENTITLEMENT TO BACK PAY BECAUSE SUPREME COURT, IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), HELD THAT THERE IS NO ENTITLEMENT TO BACK PAY FOR PERIODS OF ERRONEOUS CLASSIFICATION UNDER EITHER BACK PAY ACT, 5 U.S.C. 5596 (1970), OR PERTINENT CLASSIFICATION STATUTES. 2. GENERAL SCHEDULE EMPLOYEE, WHO WAS ON TEMPORARY DUTY IN CADIZ, SPAIN, INCIDENT TO OVERHAUL OF SHIP, STATES THAT HE ACTED AS SUPERVISOR OF SHIP SURVEYORS WHO WERE WAGE GRADE EMPLOYEES. ACCORDINGLY, EMPLOYEE ASSERTS THAT HE IS ENTITLED TO PAY ADJUSTMENT AND CORRESPONDING BACK PAY. AUTHORITY FOR PAY ADJUSTMENT, 5 U.S.C. 5333 (1970) AND 5 C.F.R. 531.301- 305, CONDITIONS PAY ADJUSTMENT UPON REGULAR SUPERVISION OF WAGE GRADE EMPLOYEES. CLAIM IS DENIED AS 5 C.F.R. 531.304(B) DEFINES "REGULAR RESPONSIBILITY" AS CONTINUING ASSIGNMENT REFLECTED IN OFFICIAL POSITION DESCRIPTION. 3. EMPLOYEE, WHO WAS ON TEMPORARY DUTY IN CADIZ, SPAIN, STATES THAT HE PERFORMED DUTIES AS ENGLISH-SPANISH TRANSLATOR. EMPLOYEE CLAIMS ADDITIONAL COMPENSATION AT RATE OF $50 PER DAY FOR PERIOD SERVICES WERE RENDERED. CLAIM MAY NOT BE ALLOWED IN VIEW OF WELL ESTABLISHED RULE THAT EMPLOYEE IS ENTITLED ONLY TO SALARY OF THE POSITION TO WHICH HE IS APPOINTED REGARDLESS OF THE DUTIES WHICH HE MAY PERFORM. SEE B-183218, MARCH 31, 1975, AND COURT CASES CITED.

REYNOLD CHAVEZ - CLAIMS FOR BACK PAY FOR ERRONEOUS CLASSIFICATION, PAY ADJUSTMENT, AND ADDITIONAL COMPENSATION:

MR. REYNOLD CHAVEZ HAS APPEALED THE ACTION OF OUR CLAIMS DIVISION IN CERTIFICATE OF SETTLEMENT DATED JULY 15, 1977, WHICH DENIED HIS CLAIM FOR BACK PAY INCIDENT TO HIS TEMPORARY DUTY IN CADIZ, SPAIN, FOR THE PERIOD OCTOBER 13, 1975, THROUGH APRIL 28, 1976, AS PART OF A SHIP SURVEY TEAM INCIDENT TO AN OVERHAUL OF THE U.S.S. OAK RIDGE.

THE RECORD SHOWS THAT MR. CHAVEZ WAS A CONTRACT SPECIALIST GS-1102 11, A NONSUPERVISORY POSITION, AT THE SUPERVISOR OF SHIPBUILDING CONVERSION AND REPAIR (U.S.N.) (SUPSHIP), SAN DIEGO, CALIFORNIA. ON MARCH 20, 1975, THE NAVY SEA SYSTEMS COMMAND, WASHINGTON, D.C., REQUESTED THE SUPERVISOR OF THE SUPSHIP SAN DIEGO TO LOAN A SUPERVISORY SHIP SURVEYOR FOR TEMPORARY DUTY IN CONNECTION WITH THE REGULAR OVERHAUL OF THE U.S.S. OAK RIDGE AT THE ASTILLEROS ESPANOLES SHIPYARD IN CADIZ, SPAIN. SUPSHIP SAN FRANCISCO WAS REQUESTED TO FURNISH THREE SHIP SURVEYORS INCIDENT TO THIS ASSIGNMENT. MR. CHAVEZ VOLUNTEERED FOR AND WAS SELECTED FOR THE TEMPORARY DUTY SUPERVISORY ASSIGNMENT. THERE WERE NO OFFICIALLY ESTABLISHED SHIP SURVEYOR OR SUPERVISORY SHIP SURVEYOR POSITIONS EITHER AT MR. CHAVEZ' PERMANENT DUTY STATION AT SUPSHIP SAN DIEGO, OR AT HIS TEMPORARY DUTY STATION IN CADIZ, SPAIN. MR. CHAVEZ REMAINED IN HIS NONSUPERVISORY POSITION AS A CONTRACT SPECIALIST GS-1102-11, FOR THE ENTIRE PERIOD OF HIS TEMPORARY DUTY ASSIGNMENT IN CADIZ.

MR. CHAVEZ CLAIMS BACK PAY AND ADDITIONAL COMPENSATION FOR THE PERIOD OF HIS TEMPORARY DUTY OCTOBER 13, 1975, THROUGH APRIL 28, 1976. HE STATES THAT INCIDENT TO HIS TEMPORARY DUTY HE PERFORMED THE DUTIES OF A SUPERVISORY SHIP SURVEYOR (WD-8) AND THAT HE SUPERVISED FIVE SHIP SURVEYOR PERSONNEL IN CONNECTION WITH THE OVERHAUL OF THE U.S.S. OAK RIDGE. THEREFORE CLAIMS BACK PAY FOR THE DIFFERENCE BETWEEN THE COMPENSATION OF A SUPERVISORY SHIP SURVEYOR WD-8 AND THE COMPENSATION HE RECEIVED AS A CONTRACT SPECIALIST GS-11, STEP 6. IN SUPPORT OF HIS CLAIM MR. CHAVEZ HAS PROVIDED A SIGNED STATEMENT FROM SEVERAL SHIP SURVEYORS WHO STATE THAT MR. CHAVEZ ACTED AS SUPERVISOR OF THE SURVEYOR GROUP ABOARD THE U.S.S. OAK RIDGE.

THE CLASSIFICATION OF POSITIONS IN THE GENERAL SCHEDULE AND THE JOB GRADING OF PREVAILING RATE POSITIONS IS GOVERNED BY 5 U.S.C. 5101-5115 AND 5 U.S.C. 5346 (SUPP. II, 1972). SECTIONS 5115 AND 5346 EMPOWER THE CIVIL SERVICE COMMISSION TO PRESCRIBE REGULATIONS REGARDING THE CLASSIFICATION OF POSITIONS. UNDER THE COMMISSION'S REGULATIONS THE ONLY PROVISION FOR A RETROACTIVE EFFECTIVE DATE FOR CLASSIFICATION IS WHEN THERE IS A TIMELY APPEAL WHICH RESULTS IN THE REVERSAL, IN WHOLE OR IN PART, OF A DOWNGRADING OR OTHER CLASSIFICATION ACTION WHICH HAD RESULTED IN THE REDUCTION OF PAY. SEE 5 C.F.R. 511.703 AND 5 C.F.R. 532.702(B) (9).

IN UNITED STATES V. TESTAN, ET AL., 424 U.S. 392 (1976), THE UNITED STATES SUPREME COURT HELD THAT THERE IS NO SUBSTANTIVE RIGHT TO BACK PAY FOR PERIODS OF WRONGFUL POSITION CLASSIFICATION SINCE THE PERTINENT CLASSIFICATION STATUTES, 5 U.S.C. 5101-5115, DID NOT EXPRESSLY MAKE THE UNITED STATES LIABLE FOR PAY LOST THROUGH AN IMPROPER CLASSIFICATION. NOTE THAT 5 U.S.C. 5346 (SUPP. II, 1972), ALSO DOES NOT CONTAIN ANY EXPRESS PROVISION MAKING THE UNITED STATES LIABLE FOR PAY LOST DURING A PERIOD OF IMPROPER CLASSIFICATION. IN ADDITION, THE COURT HELD IN TESTAN, SUPRA, THAT THE BACK PAY ACT, 5 U.S.C. 5596 (1970), DID NOT AFFORD A REMEDY FOR PERIODS OF ERRONEOUS CLASSIFICATION.

IN VIEW OF THE SUPREME COURT'S HOLDING IN TESTAN AND SINCE MR. CHAVEZ DOES NOT QUALIFY FOR RETROACTIVE PROMOTION AND BACK PAY UNDER THE ABOVE CIVIL SERVICE REGULATIONS, THERE IS NO AUTHORITY WHICH WOULD ALLOW MR. CHAVEZ' CLAIM FOR COMPENSATION AS A SUPERVISORY SHIP SURVEYOR WD-8, FOR THE PERIOD IN QUESTION.

MR. CHAVEZ ALSO CLAIMS BACK PAY ON THE BASIS THAT SINCE HIS DUTIES DURING THE PERIOD OCTOBER 13, 1975, THROUGH APRIL 28, 1976, INVOLVED THE SUPERVISION OF SHIP SURVEYORS, WHO WERE WAGE GRADE EMPLOYEES WITH A HIGHER RATE OF PAY THAN HE RECEIVED, HE WAS ENTITLED TO A PAY ADJUSTMENT IN ACCORDANCE WITH THE PROVISIONS OF FEDERAL PERSONNEL MANUAL CHAPTER 531, SUBCHAPTER 3. THE AUTHORITY FOR PAY ADJUSTMENT FOR SUPERVISORS OF WAGE BOARD EMPLOYEES IS 5 U.S.C. 5333(B) (1970). THE CIVIL SERVICE COMMISSION HAS ISSUED IMPLEMENTING REGULATIONS AT 5 C.F.R. 531.301-305. UNDER THE ABOVE-CITED STATUTE AND REGULATIONS THE PAY ADJUSTMENT FOR SUPERVISORS IS CONDITIONED UPON THE REGULAR RESPONSIBILITY FOR SUPERVISION OF A WAGE GRADE EMPLOYEE. SUBSECTION (B) OF 5 C.F.R. 531.304 DEFINES REGULAR RESPONSIBILITY AS FOLLOWS:

"(B) REGULAR RESPONSIBILITY. A SUPERVISOR REGULARLY HAS RESPONSIBILITY FOR SUPERVISION WHEN THIS RESPONSIBILITY IS A CONTINUING ASSIGNMENT AS REFLECTED IN HIS OFFICAL POSITION DESCRIPTION."

SINCE MR. CHAVEZ WAS A CONTRACT SPECIALIST GS-1102-11, A POSITION WHICH DID NOT HAVE ANY SUPERVISORY DUTIES, DURING HIS TEMPORARY DUTY ASSIGNMENT, THERE IS NO AUTHORITY TO ADJUST HIS SALARY UNDER THE PROVISIONS OF 5 U.S.C. 5333(B) (1970) AND THE CLAIM FOR PAY ADJUSTMENT IS THEREFORE NOT ALLOWED.

MR. CHAVEZ' FINAL CLAIM FOR ADDITIONAL COMPENSATION IS BASED ON HIS CONTENTION THAT DURING HIS TEMPORARY DUTY ASSIGNMENT IN CADIZ, SPAIN, HIS DUTIES INCLUDED ENGLISH-SPANISH TRANSLATION, FOR WHICH HE CLAIMS ADDITIONAL COMPENSATION AT THE RATE OF $50 PER DAY. THE WELL ESTABLISHED RULE IS THAT AN EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED REGARDLESS OF THE DUTIES WHICH HE MAY PERFORM. DIANISH V. UNITED STATES, 183 CT.CL. 702 (1968) AND COLEMAN V. UNITED STATES, 100 CT.CL. 41 (1943). B-183218, MARCH 31, 1975. EXTRA PAY FOR EXTRA SERVICES IS PROHIBITED BY 5 U.S.C. 5536 (1970), UNLESS SPECIFICALLY AUTHORIZED BY LAW. WE ARE NOT AWARE OF ANY STATUTE OR REGULATION THAT WOULD AUTHORIZE PAYMENT OF ADDITIONAL COMPENSATION FOR ANY TRANSLATION SERVICES WHICH MR. CHAVEZ MAY HAVE PROVIDED AND, THEREFORE, THE CLAIM IS NOT ALLOWABLE.

IN ACCORDANCE WITH THE ABOVE, THE ACTION TAKEN BY OUR CLAIMS DIVISION DISALLOWING MR. CHAVEZ' CLAIMS FOR BACK PAY AND ADDITIONAL COMPENSATION IS HEREBY SUSTAINED.