B-199460, FEB 19, 1981

B-199460, FEB 19, 1981

DIGEST: EMPLOYEE CLAIMS RETROACTIVE PROMOTION FROM GRADE GS-13 TO GS-14 BETWEEN DECEMBER 1972 AND DECEMBER 1977 BASED ON A RECOMMENDATION CONTAINED IN A CLASSIFICATION REVIEW PERFORMED DECEMBER 21, 1972. THE CLAIM IS DENIED SINCE THE RECORD SHOWS THAT THE POSITION WAS NOT CLASSIFIED AT GRADE GS-14 UNTIL NOVEMBER 30, 1977. TESTAN V. UNITED STATES, 424 U. S. 392 (1976).

SAM EFNOR, JR. - RETROACTIVE PROMOTION:

BY A LETTER DATED JUNE 4, 1980, MR. SAM EFNOR, JR., APPEALS THE ACTION OF OUR CLAIMS DIVISION (NOW CLAIMS GROUP) IN SETTLEMENT CERTIFICATE NO. Z- 2818488, ISSUED APRIL 25, 1980, WHICH DISALLOWED HIS CLAIM FOR A RETROACTIVE PROMOTION FROM GRADE GS-13 TO GS-14 BETWEEN DECEMBER 21, 1972 AND DECEMBER 11, 1977. WE AFFIRM THE DISALLOWANCE OF MR. EFNOR'S CLAIM, AS THE GS-14 POSITION TO WHICH MR. EFNOR CLAIMS A RETROACTIVE PROMOTION WAS NOT ESTABLISHED UNTIL NOVEMBER 30, 1977.

MR. EFNOR IS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY WHOSE DUTY STATION IS DUGWAY PROVING GROUND, DUGWAY, UTAH. THE RECORD SHOWS THAT ON DECEMBER 21, 1972, A CLASSIFICATION REVIEW OF THE POSITION FOR CHIEF, MISO, WAS PREPARED WHICH RECOMMENDED THAT THE POSITION BE CLASSIFIED AS A DIGITAL COMPUTER SYSTEMS ADMINISTRATOR, GS-330-14. THIS POSITION WAS OCCUPIED BY MR. EFNOR UNDER A GS-13 JOB DESCRIPTION AT THAT TIME. NO ACTION WAS TAKEN ON THE PROPOSAL, AND THE POSITION WAS NOT RECLASSIFIED TO GRADE GS-14 UNTIL NOVEMBER 30, 1977. MR. EFNOR WAS PROMOTED TO GS-14 EFFECTIVE DECEMBER 11, 1977.

IN A MEMORANDUM TO HIS AGENCY DATED MAY 15, 1978, MR. EFNOR CONTENDED THAT THE DOCUMENT OF DECEMBER 21, 1972, WAS A CLASSIFICATION ACTION AND REQUESTED A RETROACTIVE PROMOTION TO GRADE GS-14 ON THE BASIS OF AN ADMINISTRATIVE ERROR IN FAILING TO PROMOTE HIM IN 1972. THIS REQUEST WAS DENIED ON MAY 16, 1979. ON JUNE 20, 1979, MR. EFNOR REQUESTED REVIEW OF THE DENIAL. HIS REQUEST FOR REVIEW WAS RECEIVED BY OUR CLAIMS DIVISION ON OCTOBER 29, 1979. THE CLAIMS DIVISION DISALLOWED MR. EFNOR'S CLAIM ON APRIL 25, 1980, ON THE BASIS THAT NO "ADMINISTRATIVE ERROR, CONSTITUTING AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, TOOK PLACE WITH REGARDS TO" MR. EFNOR'S PROMOTION.

IN HIS APPEAL OF JUNE 4, 1980, MR. EFNOR CONTENDS THAT (A) THE MANAGEMENT INFORMATION SYSTEMS OFFICE (MISO) WAS REORGANIZED IN DECEMBER 1972, (B) THAT THE CLASSIFICATION REVIEW DATED DECEMBER 21, 1972, ESTABLISHED THE CHIEF'S POSITION AS A GS-14, AND (C) THAT HE PERFORMED THE DUTIES OF THE GS-14 POSITION BEGINNING IN 1972. IN ADDITION MR. EFNOR SUBMITTED THE AFFIDAVITS OF THREE ASSOCIATES TO SUBSTANTIATE HIS CLAIM. WE AFFIRM THE DENIAL OF MR. EFNOR'S CLAIM BY THE CLAIMS DIVISION FOR THE REASONS SET FORTH BELOW.

AS A GENERAL RULE, AN EMPLOYEE OF THE FEDERAL GOVERNMENT IS ENTITLED ONLY TO SALARY OF THE POSITION TO WHICH HE IS APPOINTED, REGARDLESS OF THE DUTIES HE ACTUALLY PERFORMS. MATTER OF KLICK, B-193348, APRIL 10, 1979. THE RECOMMENDATION CONTAINED IN THE CLASSIFICATION REVIEW OF DECEMBER 21, 1972, WAS NOT ACTED UPON AND THAT DOCUMENT ITSELF DID NOT ESTABLISH A GS- 14 POSITION. THUS, FOR THE PERIOD OF HIS CLAIM, MR. EFNOR WAS ENTITLED ONLY TO THE SALARY OF HIS APPOINTED GS-13 POSITION. WHILE THE AFFIDAVITS SUBMITTED IN SUPPORT OF HIS CLAIM SUGGEST THAT THERE WAS A BASIS TO RECLASSIFY THE POSITION AT THE GS-14 LEVEL PRIOR TO NOVEMBER 30, 1977, THE SUPREME COURT IN TESTAN V. UNITED STATES, 424 U. S. 392 (1976), HELD THAT NEITHER THE CLASSIFICATION ACT, 5 U.S.C. 5105-5115, NOR THE BACK PAY ACT, 5 U.S.C. 5596, CREATES A SUBSTANTIVE RIGHT TO BACK PAY BASED ON A PERIOD OF WRONGFUL CLASSIFICATION.

THE CLASSIFICATION OF POSITIONS IN THE GOVERNMENT IS CONTROLLED BY THE CLASSIFICATION ACT, SUPRA, UNDER WHICH THE OFFICE OF PERSONNEL MANAGEMENT, FORMERLY THE CIVIL SERVICE COMMISSION, IS EMPOWERED TO PRESCRIBE REGULATIONS AND ENGAGE IN SUPERVISING REVIEW OF AN AGENCY'S CLASSIFICATION. AN EMPLOYEE WHO WISHES A REVIEW OF THE GRADE OF HIS POSITION MAY FILE A CLASSIFICATION APPEAL AT ANY TIME, EITHER WITH THE EMPLOYING AGENCY OR THE COMMISSION. IF MR. EFNOR BELIEVED THAT HIS POSITION WAS IMPROPERLY CLASSIFIED AN APPROPRIATE REMEDY WAS AVAILABLE TO HIM THROUGH THE MEANS OF A CLASSIFICATION APPEAL. HOWEVER, HE DID NOT FILE A CLASSIFICATION APPEAL, AND THE APPROPRIATE AUTHORITIES WERE THUS NOT AFFORDED AN OPPORTUNITY TO INVESTIGATE THE MATTER AND ISSUE A FORMAL RULING PURSUANT TO SUCH AN APPEAL. SEE KLICK, SUPRA.

IN THE INSTANT CASE, A GRADE GS-14 POSITION FOR CHIEF, MISO, WAS NOT CLASSIFIED AND ESTABLISHED UNTIL NOVEMBER 30, 1977. THUS, MR. EFNOR COULD NOT HAVE BEEN PROMOTED TO IT BEFORE THAT TIME. ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION IS SUSTAINED.