B-211856, JUL 21, 1983

B-211856, JUL 21, 1983

DIGEST: THE DEPARTMENT OF THE ARMY MAY CORRECT A BACKPAY AWARD TO AN EMPLOYEE WHERE THE EFFECTIVE DATE OF THE BACKPAY ENTITLEMENT, GRANTED UNDER HOLDINGS IN TURNER-CALDWELL, 55 COMP.GEN. 539 (1975), SUSTAINED IN 56 COMP.GEN. 427 (1977), WAS ERRONEOUSLY CALCULATED. TURNER-CALDWELL III, 61 COMP.GEN. 408 (1982), WHICH OVERTURNED PRIOR DECISIONS, APPLIES BY ITS TERMS ONLY TO CLAIMS WHICH HAD NOT BEEN DECIDED OR SETTLED PRIOR TO MAY 25, 1982, AND THE CLAIM IN THIS CASE WAS SETTLED IN 1981. HOWEVER, THE EMPLOYEE'S CONTENTION THAT THE AGENCY ERRED IN DETERMINING THE DATE THE POSITION WAS ESTABLISHED CONSTITUTES A SEPARATE CLAIM WHICH WAS NOT SETTLED PRIOR TO MAY 25, 1982, AND THEREFORE IS BARRED BY TURNER-CALDWELL III.

SATISH K. AGGARWAL:

BY LETTER OF MAY 17, 1983, THE OFFICE OF THE COMPTROLLER OF THE ARMY, DEPARTMENT OF THE ARMY, REQUESTED AN ADVANCE DECISION ON WHETHER THE COMPTROLLER GENERAL'S DECISION IN MATTER OF TURNER-CALDWELL III, 61 COMP.GEN. 408 (1982), PRECLUDED CORRECTING THE BACKPAY AWARD OF AN EMPLOYEE WHERE THE AGENCY HAD ERRONEOUSLY CALCULATED THE EFFECTIVE DATE OF AN EMPLOYEE'S BACKPAY ENTITLEMENT INCIDENT TO A RETROACTIVE TEMPORARY PROMOTION GRANTED UNDER THE PREVIOUS TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), SUSTAINED IN 56 COMP.GEN. 427 (1977). SINCE THE HOLDING IN TURNER-CALDWELL III IS APPLICABLE ONLY TO CLAIMS FOR BACKPAY WHICH HAD NOT BEEN SETTLED OR DECIDED AS OF THE DATE OF THE DECISION, MAY 25, 1982, CORRECTIVE ACTION IN A BACKPAY CLAIM PREVIOUSLY SETTLED WOULD NOT BE PRECLUDED. HOWEVER, THE EMPLOYEE'S CONTENTION THAT THE AGENCY ERRED IN DETERMINING THE DATE THE POSITION TO WHICH HE WAS RETROACTIVELY PROMOTED WAS ESTABLISHED CONSTITUTES A SEPARATE CLAIM FOR BACKPAY NOT PREVIOUSLY SETTLED AND IS BARRED BY TURNER-CALDWELL III.

THE ISSUE IN THIS CASE IS WHETHER THE HOLDING IN TURNER-CALDWELL III PRECLUDES AN AGENCY'S CORRECTING A BACKPAY AWARD IN A CLAIM SETTLED PRIOR TO THE EFFECTIVE DATE OF THAT DECISION SO AS TO GIVE MR. SATISH K. AGGARWAL, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, AN INCREASED BACKPAY AWARD. THE CIVILIAN PERSONNEL OFFICER AT FORT BELVOIR, VIRGINIA, DETERMINED THAT THE POSITION TO WHICH MR. AGGARWAL HAD BEEN DETAILED WAS ESTABLISHED EFFECTIVE AUGUST 10, 1978. IN 1981 MR. AGGARWAL WAS AWARDED BACKPAY BEGINNING 120 DAYS FROM THE DATE THE POSITION WAS ESTABLISHED WHICH THE PERSONNEL OFFICER DETERMINED TO BE THE PERIOD FROM DECEMBER 11 TO DECEMBER 30, 1978. SUBSEQUENTLY, IT WAS DETERMINED THAT THE PERSONNEL OFFICE HAD ERRED IN DETERMINING THE EFFECTIVE DATE OF MR. AGGARWAL'S ENTITLEMENT TO BACKPAY FOLLOWING THE 120-DAY WAITING PERIOD. IT WAS FOUND THAT MR. AGGARWAL WAS ENTITLED TO BACKPAY EFFECTIVE DECEMBER 8, NOT DECEMBER 11. THUS, THE COMPTROLLER OF THE ARMY INQUIRES WHETHER CORRECTIVE ACTION IS PERMITTED IN LIGHT OF OUR HOLDING IN TURNER-CALDWELL III. IN ADDITION, MR. AGGARWAL NOW CONTENDS THAT THE POSITION TO WHICH HE WAS RETROACTIVELY PROMOTED WAS ESTABLISHED AT GRADE GS-13 ON JULY 3, 1978, AND THAT THE 120-DAY PERIOD BEGAN THEN. ON THAT BASIS HE NOW CLAIMS ADDITIONAL BACKPAY FROM OCTOBER 31 TO DECEMBER 7, 1978.

ON MAY 25, 1982, WE ISSUED THE DECISION IN TURNER-CALDWELL III, 61 COMP.GEN. 408 (1982), WHICH ESSENTIALLY ADOPTED THE POSITION OF THE COURT OF CLAIMS IN WILSON V. UNITED STATES, NO. 324-81C, ORDER, OCTOBER 23, 1981, THAT TEMPORARY PROMOTIONS FOR OVERLONG DETAILS WERE NOT AUTHORIZED BY 5 U.S.C. SEC. 3341 (1976), THE FEDERAL PERSONNEL MANUAL, OR THE BACK PAY ACT, 5 U.S.C. SEC. 5596, AND, THEREFORE, WERE NOT ALLOWABLE IN THE ABSENCE OF A NONDISCRETIONARY PROVISION TO PROMOTE TEMPORARILY. THIS DECISION OVERTURNED THE PRIOR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), SUSTAINED IN 56 COMP.GEN. 427 (1977), WHICH HAD HELD THAT SUCH TEMPORARY PROMOTIONS WITH BACKPAY WERE GENERALLY ALLOWABLE WHEN AN EMPLOYEE WAS DETAILED TO A HIGHER LEVEL POSITION FOR MORE THAN 120 DAYS WITHOUT PRIOR CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) APPROVAL. HOWEVER, OUR DECISION IN TURNER-CALDWELL III, BY ITS OWN TERMS, WAS TO BE APPLIED ONLY PROSPECTIVELY. IT STATES IN THIS REGARD:

"SINCE OUR DECISION OF TODAY REPRESENTS A CHANGED INTERPRETATION OF LAW, WE WILL LIMIT THE DECISION TO PROSPECTIVE APPLICATION. PRIOR DECISIONS AND SETTLEMENTS OF CLAIMS BY OUR OFFICE OR OTHER FEDERAL AGENCIES WHICH WERE MADE PURSUANT TO OUR TURNER-CALDWELL DECISIONS WILL NOT BE DISTURBED. HOWEVER, CLAIMS WHICH AROSE OR WERE FILED PRIOR TO THE WILSON DECISION AND WHICH HAVE NOT BEEN DECIDED MUST BE DENIED. SEE, FOR EXAMPLE, 56 COMP.GEN. 551 (1977), AMPLIFIED IN 58 COMP.GEN.345 (1979)." 61 COMP.GEN. 408, AT 410.

SINCE MR. AGGARWAL'S CLAIM WAS SETTLED IN 1981, PRIOR TO THE EFFECTIVE DATE OF TURNER-CALDWELL III, THAT DECISION DID NOT DISTURB THE SETTLEMENT. THUS, THE CORRECTIVE ACTION CONTEMPLATED, WHICH IS MERELY CORRECTION OF A COMPUTATIONAL ERROR, WOULD NOT BE PRECLUDED. COMPARE 45 COMP.GEN. 140 (1965). ACCORDINGLY, THE ARMY MAY ADJUST THE EFFECTIVE DATE OF MR. AGGARWAL'S BACKPAY AWARD TO DECEMBER 8, 1978, AND PAY HIM THE ADDITIONAL AMOUNT DUE, IF OTHERWISE PROPER.

WITH REGARD TO MR. AGGARWAL'S CONTENTION THAT THE POSITION WAS ESTABLISHED AT GRADE GS-13 ON JULY 3, 1978, AND THAT HE IS THEREFORE ENTITLED TO BACKPAY FROM OCTOBER 31 TO DECEMBER 7, 1978, THIS MATTER WAS NOT SETTLED PRIOR TO THE HOLDING IN TURNER-CALDWELL III. ACCORDINGLY, THAT ADDITIONAL CLAIM FOR BACKPAY BY MR. AGGARWAL IS BARRED BY TURNER- CALDWELL III.