B-194963.OM, L/M, MAR 17, 1980

B-194963.OM, L/M, MAR 17, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIM OF MR. JOHN M. MERCER FOR A RETROACTIVE TEMPORARY PROMOTION BASED ON AN OVERLONG DETAIL TO A HIGHER GRADED POSITION.

MR. MERCER WAS DETAILED BY MEMORANDUM DATED JULY 2, 1973, TO ACT AS HEAD, RESEARCH AND DEVELOPMENT DIVISION (SUPERVISORY METEOROLOGIST, GS 15), A VACANT HIGHER GRADED POSITION. THAT ASSIGNMENT WAS ENDED BY MEMORANDUM DATED APRIL 12, 1976. HIS AGENCY STATED THAT HE HAS BEEN COMPENSATED FOR THE FIRST SIX MONTHS OF THE DETAIL, BUT THAT HE COULD NOT BE COMPENSATED FOR THE REMAINDER OF THE DETAIL BECAUSE CIVILIAN MANPOWER MANAGEMENT INSTRUCTION (CMMI) 511.4E AUTOMATICALLY CANCELS THE CLASSIFICATION OF POSITIONS IN GRADE GS-15 OR LOWER WHICH HAVE REMAINED VACANT FOR SIX MONTHS. WHILE PAYMENT TO MR. MERCER FOR THE PERIOD PRIOR TO THE 121ST DAY OF THE DETAIL IS CLEARLY INCONSISTENT WITH THE TURNER-CALDWELL SERIES OF DECISIONS AND WILL REQUIRE CORRECTION, WE QUESTION THE APPLICABILITY OF CMMI 511.4E TO CLAIMS FOR BACK PAY BASED ON OVERLONG DETAILS.

CMMI 511.4E IS IN AGREEMENT WITH PARAGRAPH S4-4 OF FEDERAL PERSONNEL MANUAL CHAPTER 312, WHICH STATES THAT POSITIONS WHICH HAVE REMAINED UNFILLED FOR AN EXTENDED PERIOD OF TIME SHOULD BE ABOLISHED IN THE INTEREST OF GOOD MANAGEMENT. HOWEVER, THE APPLICATION OF THAT INSTRUCTION TO CLAIMS FOR RETROACTIVE TEMPORARY PROMOTION BASED ON OVERLONG DETAILS TO HIGHER GRADED POSITIONS WOULD SERVE TO RESTRICT THE ENTITLEMENT OF CIVILIAN EMPLOYEES OF THE NAVY, WHO WERE DETAILED TO VACANT POSITIONS IN GRADE GS-15 OR LOWER, TO THE PERIOD BEGINNING ON THE 121ST DAY OF THE DETAIL AND ENDING ON THE DATE THE DETAIL POSITION HAD REMAINED VACANT FOR SIX MONTHS. FURTHERMORE, APPLICATION OF THE INSTRUCTION WOULD SET UP AN ILLOGICAL, AND SEEMINGLY UNFAIR, DISTINCTION BETWEEN DETAILS TO VACANT ONE -OF-KIND POSITIONS AND DETAILS TO POSITIONS USED FOR MORE THAN ONE EMPLOYEE, SINCE A NUMBER OF DECISIONS HAVE STATED THAT VACANCY OR UNFILLED SLOT IS NOT NECESSARY IF AN EMPLOYEE WAS INFORMALLY DETAILED TO DUTIES WHICH WERE THOSE OF AN ESTABLISHED, CLASSIFIED POSITION.

BECAUSE OF DOUBT CONCERNING THE APPLICABILITY OF THE CITED INSTRUCTION TO CLAIMS BASED UPON THE TURNER-CALDWELL SERIES OF DECISIONS, WE REFER THE MATTER FOR YOUR CONSIDERATION.

THE ADJUDICATOR HANDLING THE CLAIM IN THIS DIVISION IS SHELDON K. HAUSE, EXT. 52554.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. THE ISSUE PRESENTED IS THE APPLICABILITY OF CMMI 511.4E, WHICH AUTOMATICALLY CANCELS THE CLASSIFICATION OF POSITIONS IN GRADE GS 15 OR LOWER WHICH HAVE REMAINED VACANT FOR 6 MONTHS, TO A CLAIM FOR BACK PAY BASED ON AN OVERLONG DETAIL.

WE RULED IN EVERETT TURNER-DAVID L. CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED IN 56 COMP.GEN. 427 (1977), THAT AN EMPLOYEE DETAILED TO A HIGHER-GRADE POSITION IN EXCESS OF 120 DAYS, WITHOUT PRIOR CIVIL SERVICE COMMISSION APPROVAL, IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION FROM THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. MR. MERCER WAS DETAILED TO A HIGHER-GRADE POSITION BY MEMORANDUM DATED JULY 2, 1973. HIS DETAIL WAS TERMINATED BY MEMORANDUM DATED APRIL 12, 1976. THE NAVY RECOGNIZED THIS DETAIL AND COMPENSATED MR. MERCER WITH BACK PAY BUT ONLY UNTIL DECEMBER 31, 1973, AT WHICH POINT THE NAVY CLAIMS THE HIGHER-GRADED POSITION WAS AUTOMATICALLY CANCELLED UNDER CMMI 511.4E.

FOR THE FOLLOWING REASONS WE FIND THAT CMMI 511.4E (WHICH IS IN AGREEMENT WITH FEDERAL PERSONNEL MANUAL, CHAPTER 312, PARAGRAPH S4-4) DOES NOT OPERATE TO AUTOMATICALLY CANCEL A POSITION, 6 MONTHS FROM THE DAY THE POSITION WAS VACATED, WHEN AN EMPLOYEE HAS BEEN DETAILED TO THAT POSITION PRIOR TO THE EXPIRATION OF THE 6-MONTH PERIOD.

THE PURPOSE BEHIND CMMI 511.4E IS THAT POSITIONS WHICH REMAIN UNFILLED FOR AN EXTENDED PERIOD OF TIME SHOULD BE ABOLISHED IN THE INTEREST OF GOOD MANAGEMENT, SINCE THEY CAN BE REESTABLISHED IF SUBSEQUENTLY NEEDED. THE DIRECTOR OF THE NAVY WEAPONS ENGINEERING SUPPORT ACTIVITY (ESA) STATED, WITH REGARD TO MR. MERCER'S CLAIM FOR BACK PAY, THAT ESA WAS IN A PHASE OF RECEDING WORKLOAD AND RESPONSIBILITY. HE STATES THAT NO EVIDENCE COULD BE FOUND OF ANY ATTEMPT TO FILL THE POSITION TO WHICH MR. MERCER WAS DETAILED. THEREFORE, IT AUTOMATICALLY BECAME INACTIVE 6 MONTHS AFTER IT WAS VACATED. THIS IS CONTRARY, HOWEVER, TO THE NAVY'S RECOGNITION OF THE NEED TO HAVE MR. MERCER PERFORM THE DUTIES OF THE HIGHER-GRADED POSITION TO WHICH HE WAS DETAILED SINCE HE WAS NOT REMOVED FROM THAT DETAIL UNTIL APRIL 1976 AND THE NAVY DOES NOT DISPUTE THAT MR. MERCER ACTUALLY PERFORMED THE DUTIES OF THE HIGHER-GRADED POSITION.

ALTHOUGH WE RECOGNIZE THAT BY DEFINITION A POSITION IS NOT FILLED BY A DETAIL SINCE THE EMPLOYEE CONTINUES TO BE THE INCUMBENT OF THE POSITION FROM WHICH HE IS DETAILED (FPM CHAPTER 300, SUBCHAPTER 8), WE BELIEVE THAT FOR THE PURPOSES OF CMMI 511.4E, A DETAIL TO A POSITION ENCUMBERS THE POSITION SO THAT THE POSITION IS NOT AUTOMATICALLY CANCELLED AFTER 6 MONTHS.

OUR CONCLUSION ON THIS POINT IS IN AGREEMENT WITH INTERNAL NAVY POLICY ESTABLISHED BY THE CHIEF OF NAVAL OPERATIONS IN A MEMORANDUM DATED MARCH 22, 1979, TO THE COMMANDER, PEARL HARBOR NAVAL SHIPYARD. IT STATES THAT WHEN A POSITION WOULD OTHERWISE HAVE BEEN CANCELLED PURSUANT TO INSTRUCTION, BECAUSE IT WAS VACANT FOR 6 MONTHS, "THE PROCESSING OF THE RETROACTIVE PERSONNEL ACTIONS MUST BE CONSIDERED AS ENCUMBERING THE POSITION, AND THUS NEGATING THE BASIS FOR CANCELLATION." THUS, THE POSITION IS ESTABLISHED AND CLASSIFIED THROUGHOUT THE PERIOD OF DETAIL.

MR. MERCER IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FROM THE 121ST DAY OF HIS DETAIL UNTIL HIS DETAIL WAS TERMINATED ON APRIL 12, 1976.