B-205264.OM, JUN 22, 1982

B-205264.OM, JUN 22, 1982

SUBJECT: CLAIM OF JOHN F. LEE FOR RETROACTIVE TEMPORARY PROMOTION AND BACKPAY - B-205264-O.M. DIGEST: 1. GAO EMPLOYEE CLAIMS HE WAS DETAILED TO HIGHER GRADED DUTIES FOR PERIOD FROM MAY 23, 1977, TO OCTOBER 1, 1980, AND HE SEEKS RETROACTIVE TEMPORARY PROMOTION AND BACKPAY UNDER OUR TURNER-CALDWELL DECISIONS. HOWEVER, THE COURT OF CLAIMS RULED IN WILSON V. UNITED STATES CT.CL. NO. 324-81C, ORDER, OCTOBER 23, 1981, THAT EMPLOYEES HAVE NO ENTITLEMENT UNDER STATUTE OR THE FEDERAL PERSONNEL MANUAL TO TEMPORARY PROMOTIONS FOR OVERLONG DETAILS. SINCE WE HAVE RECENTLY RULED THAT WE WILL FOLLOW THE WILSON DECISION AND NO LONGER FOLLOW OUR PRIOR TURNER CALDWELL DECISIONS WITH RESPECT TO PENDING OR FUTURE CASES, THE EMPLOYEE'S CLAIM IS DENIED. SEE TURNER-CALDWELL III, B-203564, MAY 25, 1982. 2. AS A RESULT OF THE GAO PERSONNEL ACT OF 1980, PUBLIC LAW 96-191, FEBRUARY 15, 1980, DETAILS OF GAO EMPLOYEES ARE NO LONGER WITHIN THE JURISDICTION OF THE OFFICE OF PERSONNEL MANAGEMENT. THUS, THE REGULATION UPON WHICH OUR TURNER-CALDWELL DECISIONS WERE BASED IS NOT APPLICABLE TO GAO AS OF OCTOBER 1, 1980. HOWEVER, THERE IS NO PROVISION IN THE GAO PERSONNEL REGULATIONS WHICH REQUIRES A TEMPORARY PROMOTION WITH BACKPAY FOR AN IMPROPERLY EXTENDED DETAIL. IN THE ABSENCE OF SUCH A MANDATORY PROVISION, AN EMPLOYEE IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY UNDER THE GAO PERSONNEL MANAGEMENT SYSTEM FOR THE PERIOD OF ALLEGED OVERLONG DETAIL AFTER OCTOBER 1, 1980.

DIRECTOR OF PERSONNEL - FELIX R. BRANDON II:

THIS REPLIES TO YOUR MEMORANDUM OF OCTOBER 2, 1981, CONCERNING WHETHER MR. JOHN F. LEE, A GENERAL ACCOUNTING OFFICE EVALUATOR (NOW RETIRED EFFECTIVE JANUARY 29, 1982) IS ENTITLED TO BACKPAY FOR THE PERIOD FROM MAY 23, 1977. MR. LEE'S CLAIM IS BASED ON HIS CONTENTION THAT HE WAS CONSTRUCTIVELY DETAILED TO A HIGHER GRADE POSITION AS OF MAY 23, 1977.

THE ISSUE IN MR. LEE'S CASE IS THE ENTITLEMENT OF AN EMPLOYEE TO A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY INCIDENT TO AN OVERLONG DETAIL TO A HIGHER GRADED POSITION, BASED (1) ON OUR TURNER-CALDWELL DECISIONS, AND (2) AFTER OCTOBER 1, 1980, ON GAO ORDER NO. 23001, DATED OCTOBER 1, 1980.

FOR THE PERIOD FROM MAY 23, 1977, TO OCTOBER 1, 1980, MR. LEE'S CLAIM RESTS UPON OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), SUSTAINED IN 56 COMP.GEN. 427 (1977), WHICH HELD THAT EMPLOYEES WHO ARE DETAILED TO HIGHER GRADED POSITIONS MORE THAN 120 DAYS WITHOUT PRIOR CIVIL SERVICE COMMISSION APPROVAL ARE ENTITLED TO TEMPORARY PROMOTIONS BEGINNING ON THE 121ST DAY. RECENTLY, THE COURT OF CLAIMS DECIDED IN A.LEON WILSON V. UNITED STATES, CT.CL. NO. 324 81C, ORDER, OCTOBER 23, 1981, THAT NEITHER THE APPLICABLE STATUTE (5 U.S.C. SEC. 3341) NOR THE FEDERAL PERSONNEL MANUAL AUTHORIZES A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY IN CASES INVOLVING OVERLONG DETAILS.

IN TURNER-CALDWELL III, B-203564, MAY 25, 1982, COPY ATTACHED, WE DECIDED TO FOLLOW WILSON WITH RESPECT TO ALL PENDING AND FUTURE CLAIMS AND TO NO LONGER FOLLOW OUR PRIOR TURNER-CALDWELL DECISIONS. ACCORDINGLY, SINCE MR. LEE'S CLAIM RESTS UPON OUR PRIOR TURNER-CALDWELL DECISIONS, WHICH ARE NO LONGER BEING FOLLOWED, HIS CLAIM MUST BE DENIED FOR THE PERIOD FROM MAY 23, 1977, TO OCTOBER 1, 1980.

AS A RESULT OF THE GAO PERSONNEL ACT OF 1980, PUBLIC LAW 96-191, FEBRUARY 15, 1980, 94 STAT. 27, DETAILS OF GAO EMPLOYEES ARE NO LONGER A MATTER WITHIN THE JURISDICTION OF THE OFFICE OF PERSONNEL MANAGEMENT. THUS, THE FEDERAL PERSONNEL MANUAL PROVISION UPON WHICH OUR TURNER-CALDWELL DECISIONS WERE BASED IS NOT APPLICABLE TO GAO AS OF OCTOBER 1, 1980. UNDER THE GAO PERSONNEL MANAGEMENT SYSTEM, MANAGEMENT'S DISCRETION TO DETAIL AN EMPLOYEE TO A HIGHER GRADE POSITION LASTS NO LONGER THAN 120 DAYS UNLESS PROPER ADMINISTRATIVE PROCEDURES FOR EXTENDING THE DETAIL ARE FOLLOWED. SEE GAO ORDER NO. 23001, OCTOBER 1, 1980, "EMPLOYMENT (GENERAL)" CHAPTER 4, PARAGRAPH 3C, AND PARAGRAPH 7A(3) OF CHAPTER 1, GAO ORDER 2335.6 JANUARY 14, 1981 (FORMERLY GAO ORDER NO. 0805.1, MAY 19, 1977) "COMPETITIVE SELECTION PROGRAM." HOWEVER, THERE IS NO PROVISION IN THE GAO PERSONNEL REGULATIONS WHICH REQUIRES A TEMPORARY PROMOTION WITH BACKPAY FOR AN IMPROPERLY EXTENDED DETAIL. IN THE ABSENCE OF SUCH A MANDATORY PROVISION, MR. LEE IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY UNDER THE GAO PERSONNEL MANAGEMENT SYSTEM FOR THE PERIOD BEGINNING OCTOBER 1, 1980. SEE TURNER-CALDWELL III AND WILSON.

IN ACCORDANCE WITH THE ABOVE, MR. LEE'S CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION WITH BACKPAY MAY NOT BE ALLOWED.