B-199454.OM, NOV 28, 1980

B-199454.OM, NOV 28, 1980

SUBJECT: APPEAL OF MARTIN B. BENNETT FROM CLAIMS SETTLEMENT B-199454-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

WE ARE RETURNING YOUR FILE Z-2812424, FORWARDED AS AN APPEAL TO SETTLEMENT BY MR. MARTIN B. BENNETT. MR. BENNETT'S CLAIM WAS FILED ON THE BASIS OF OUR TURNER CALDWELL DECISION, 55 COMP.GEN. 539 (1975), AND 56 ID. 727 (1977). MR. BENNETT'S SUBMISSION DOES NOT STATE ANY GROUNDS FOR APPEAL, BUT INSTEAD REQUESTS INFORMATION ABOUT THE APPROPRIATE APPEAL PROCEDURE. IN ADDITION, IT CONTAINS A FREEDOM OF INFORMATION ACT REQUEST.

HOWEVER, WE NOTE THAT THE FACTS IN THIS CASE SEEM ANALOGOUS TO THE RECENT DECISIONS OF THIS OFFICE, JOYCE R. MORRISON, B-197206, AUGUST 12, 1980, AND EUGENE C. JOHNSON, B-197105, SEPTEMBER 30, 1980. IN THE MORRISON CASE A FEDERAL POWER COMMISSION (FPC) EMPLOYEE WAS TRANSFERRED WITH HER POSITION TO THE DEPARTMENT OF ENERGY (DOE) WHERE SHE CONTINUED TO PERFORM THE SAME DUTIES. WE HELD THAT EMPLOYEES TRANSFERRED FROM FPC TO DOE DID NOT LOSE THEIR STATUS AS CLASSIFIED EMPLOYEES NOTWITHSTANDING THE FACT THAT THEIR POSITIONS WERE NOT FORMALLY DESIGNATED AS DOE POSITIONS UNTIL LATER. THE POSITIONS TRANSFERRED TO DOE CONTINUED TO BE ESTABLISHED, CLASSIFIED POSITIONS. AFTER THE TRANSFER, MS. MORRISON WAS DETAILED TO A HIGHER-GRADE POSITION THAT ALSO HAD BEEN TRANSFERRED FROM FPC. WE HELD SHE WAS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD OF THE DETAIL BEYOND 120 DAYS. THE DETAIL WAS NOT CONSIDERED AS AN ASSIGNMENT OF UNCLASSIFIED DUTIES MERELY BECAUSE THE FORMER FPC POSITION HAD NOT BEEN RECLASSIFIED AS A DOE POSITION.

SIMILARLY IN THE JOHNSON CASE WE HELD THAT A GENERAL ACCOUNTING OFFICE EMPLOYEE TRANSFERRED WITH HIS POSITION TO THE GENERAL SERVICES ADMINISTRATION WAS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION FOR A DETAIL BEYOND 120 DAYS SINCE HE WAS CONTINUOUSLY DETAILED TO THE SAME POSITION.

THE FACTS IN THE MORRISON AND JOHNSON CASES APPEAR ANALOGOUS HERE SINCE MR. BENNETT WAS TRANSFERRED FROM THE FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, TO THE CONSUMER PRODUCT SAFETY COMMISSION UNDER THE PROVISIONS OF THE CONSUMER PRODUCT SAFETY ACT, PUB. L. NO. 92-573, 86 STAT. 1207, 15 U.S.C. 1771, NOTE (1976). THUS, THE TRANSFERRED POSITIONS WOULD CONTINUE TO BE CLASSIFIED POSITIONS.

MR. BENNETT'S INQUIRES TO THE CONSUMER PRODUCT SAFETY COMMISSION HAVE BEEN FRUITLESS. HOWEVER, THE RECORD DOES NOT CONTAIN ANY INQUIRY TO THE PREDECESSOR AGENCIES, THE FOOD AND DRUG ADMINISTRATION AND HEALTH AND WELFARE, TO DETERMINE IF IN FACT A HIGHER-GRADE POSITION WAS ESTABLISHED (THE RECORD SHOWS MR. BENNETT WAS DETAILED). THEREFORE, AN INQUIRY SHOULD BE MADE OF THOSE AGENCIES AND IF THE ANSWER IS IN THE AFFIRMATIVE THEN THE RATIONALE OF THE MORRISON AND JOHNSON CASES SHOULD BE FOLLOWED.

ACTION SHOULD BE TAKEN TO FURTHER DEVELOP THE RECORD IN ACCORDANCE WITH THE ABOVE.

DIGEST

EMPLOYEE'S CLAIM ON BASIS OF OUR TURNER-CALDWELL DECISIONS SHOULD BE FURTHER DEVELOPED WHERE FACTS APPEAR ANALOGOUS TO OUR DECISIONS JOYCE R. MORRISON, B-197206, AUGUST 12, 1980; AND EUGENE C. JOHNSON, B-197105, SEPTEMBER 30, 1980. DETAILED EMPLOYEE WAS TRANSFERRED FROM FOOD AND DRUG ADMINISTRATION TO CONSUMER PRODUCT SAFETY COMMISSION UNDER PROVISIONS OF THE CONSUMER PRODUCT SAFETY ACT AND TRANSFERRED POSITIONS WOULD CONTINUE TO BE CLASSIFIED.