B-226723, MAY 20, 1987, OFFICE OF GENERAL COUNSEL

B-226723, MAY 20, 1987, OFFICE OF GENERAL COUNSEL

CIVILIAN PERSONNEL - COMPENSATION - RETROACTIVE COMPENSATION - ELIGIBILITY - NON-APPROPRIATED FUNDS - GAO REVIEW DIGEST: EMPLOYEE OF THE ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), A NONAPPROPRIATED FUND INSTRUMENTALITY, SEEKS RETROACTIVE PROMOTION WITH BACKPAY FOR THE PERIOD HE CLAIMS TO HAVE BEEN WRONGFULLY DETAILED TO A HIGHER GRADE UA-14 POSITION. THE SUPREME COURT HAS RECOGNIZED THAT 5 U.S.C. SEC. 2105(C) DENIED AAFES EMPLOYEES THE PROTECTIONS OF THE BACK PAY ACT, 5 U.S.C. SEC. 5596. AAFES V. SHEEHAN, 456 U.S. 728 (1982). ALTHOUGH GAO DOES NOT HAVE JURISDICTION OVER THE INDIVIDUAL'S CLAIM, IT DOES NOT APPEAR THAT HIS DETAIL TO A HIGHER GRADE POSITION VIOLATED AAFES PERSONNEL PROCEDURES UNDER WHICH HE SIGNED AN AGREEMENT TO ACCEPT ASSIGNMENT TO A HIGHER GRADE POSITION WITHOUT ADJUSTMENT OF HIS PERSONAL GRADE OR PAY.

THE HONORABLE PHIL GRAMM:

THIS IS IN RESPONSE TO YOUR LETTER OF DECEMBER 22, 1986, ASKING THAT THE GENERAL ACCOUNTING OFFICE INVESTIGATE ISSUES RAISED BY YOUR CONSTITUENT, MR. HERBERT D. RICE. MR. RICE, A RETIRED ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES) EMPLOYEE, CLAIMS GENERALLY THAT HIS FORMER EMPLOYER VIOLATED A NUMBER OF FEDERAL POLICIES AND, MORE SPECIFICALLY, THAT AAFES IMPROPERLY FAILED TO PROMOTE HIM TO A UA-14 POSITION. HE CLAIMS THAT FROM JULY 1976 TO APRIL 1982 HE HELD AND WAS COMPENSATED AT THE RATE FOR A UA- 13 POSITION WHILE PERFORMING THE DUTIES OF A HIGHER GRADE UA-14 POSITION FOR WHICH HE SEEKS ADDITIONAL COMPENSATION.

WE HAVE CAREFULLY REVIEWED THE ALLEGATIONS MADE BY MR. RICE AND HAVE CONCLUDED THAT AN INVESTIGATION OF THOSE ALLEGATIONS IS NOT WARRANTED. THE FIRST REASON FOR THAT CONCLUSION IS DISCUSSED MORE FULLY BELOW AND RELATES TO THE FACT THAT THERE IS NO AUTHORITY BY WHICH THIS OFFICE MAY AWARD BACKPAY OR OTHERWISE PROVIDE A MONETARY REMEDY FOR THE PERIOD FOR WHICH MR. RICE SEEKS A RETROACTIVE PROMOTION TO GRADE UA-14. THE SECOND REASON RELATES TO THE FACT THAT THE INVESTIGATION MR. RICE REQUESTS WOULD DUPLICATE IN PART AN EXTENSIVE REVIEW EFFORT CONCLUDED BY THE GENERAL ACCOUNTING OFFICE IN 1981. IN THAT YEAR, THIS OFFICE REVIEWED CERTAIN AAFES PERSONNEL POLICIES. A PORTION OF THAT REVIEW WAS SPECIFICALLY DIRECTED AT THE CENTRAL PROMOTION BOARD PROCESS BY WHICH UA EMPLOYEES IN THE AAFES EXECUTIVE MANAGEMENT PROGRAM ARE SELECTED FOR PROMOTION. REPORTED IN B-203322, JULY 1, 1981, COPY ENCLOSED, WE FOUND THAT THE CENTRAL PROMOTION BOARD PROCESS AS IMPLEMENTED IN 1979 AND 1980 RAISED QUESTIONS AS TO WHETHER AAFES MANAGEMENT COULD RELY ON THE BOARD CONSISTENTLY TO IDENTIFY THE BEST QUALIFIED CANDIDATES FOR PROMOTION. BECAUSE THIS REVIEW COVERED 2 OF THE 7 YEARS IN WHICH MR. RICE WAS CONSIDERED FOR PROMOTION TO UA-14, AND BECAUSE WE CAN AFFORD MR. RICE NO MEANINGFUL REMEDY, WE BELIEVE THAT A REVIEW OF HIS PARTICULAR SITUATION WOULD SERVE LITTLE PURPOSE.

ONE OF THE MORE SPECIFIC ALLEGATIONS MADE BY MR. RICE IS THAT AAFES VIOLATED 5 U.S.C. SEC. 3341 IN DETAILING HIM TO THE DUTIES OF A UA-14 POSITION FOR MORE THAN 120 DAYS. THE CITED STATUTE PLACES LIMITS ON THE AUTHORITY OF A MILITARY DEPARTMENT TO DETAIL COVERED EMPLOYEES FOR PERIOD LONGER THAN 120 DAYS. THE COURT OF CLAIMS IN A. LEON WILSON V. UNITED STATES, 229 CT.CL. 510 (1981), HELD THAT 5 U.S.C. SEC. 3341 DOES NOT PROVIDE AUTHORITY TO RETROACTIVELY PROMOTE OR COMPENSATE EVEN THOSE FEDERAL EMPLOYEES WHO COME WITHIN THE PROTECTIONS OF THE VARIOUS LAWS ADMINISTERED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM). THIS OFFICE HAS RECOGNIZED THAT ANOTHER STATUTE, THE BACK PAY ACT, 5 U.S.C. SEC. 5596, MAY PROVIDE A REMEDY CONSISTING OF RETROACTIVE PROMOTION WITH BACKPAY WHERE A FEDERAL AGENCY FAILS TO PROMOTE A COVERED EMPLOYEE WHO HAS BEEN DETAILED TO A HIGHER GRADE POSITION IN VIOLATION OF A SPECIFIC REGULATION OR PROVISION IN A COLLECTIVE-BARGAINING AGREEMENT WHICH RISES TO THE LEVEL OF A PROMOTION MANDATE. ALBERT W. LURZ, 61 COMP.GEN. 492 (1982), COPY ENCLOSED. BECAUSE THERE IS NO REGULATION MANDATING THE PROMOTION OF DETAILED AAFES EXECUTIVE MANAGEMENT PROGRAM EMPLOYEES AND BECAUSE THEY DO NOT IN ANY EVENT COME WITHIN THE PROTECTIONS OF THE BACK PAY ACT, THIS LINE OF DECISIONS DOES NOT PROVIDE A BASIS TO GRANT RELIEF SOUGHT BY MR. RICE.

UNDER 5 U.S.C. SEC. 2105(C) AAFES EMPLOYEES ARE EXCEPTED FROM ALL BUT A FEW SPECIFIED LAWS ADMINISTERED BY OPM. SUBSECTION 2105(C) PROVIDES:

"(C) AN EMPLOYEE PAID FROM NONAPPROPRIATED FUNDS OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ARMY AND AIR FORCE MOTION PICTURE SERVICE, NAVY SHIP'S STORES ASHORE, NAVY EXCHANGES, MARINE CORPS EXCHANGES, COAST GUARD EXCHANGES, AND OTHER INSTRUMENTALITIES OF THE UNITED STATES UNDER THE JURISDICTION OF THE ARMED FORCES CONDUCTED FOR THE COMFORT, PLEASURE, CONTENTMENT, AND MENTAL AND PHYSICAL IMPROVEMENT OF PERSONNEL OF THE ARMED FORCES IS DEEMED NOT AN EMPLOYEE FOR THE PURPOSES OF--

"(1) LAWS (OTHER THAN SUBCHAPTER IV OF CHAPTER 53 AND SECTIONS 5550 AND 7204 OF THIS TITLE) ADMINISTERED BY THE OFFICE OF PERSONNEL MANAGEMENT; OR

"(2) SUBCHAPTER I OF CHAPTER 81 AND SECTION 7902 OF THIS TITLE.

"THIS SUBSECTION DOES NOT AFFECT THE STATUS OF THESE NONAPPROPRIATED FUND ACTIVITIES AS FEDERAL INSTRUMENTALITIES."

CITING 5 U.S.C. SEC. 2105(C), SUPRA, THE SUPREME COURT HAS HELD THAT CONGRESS INTENDED TO DENY AAFES EXECUTIVE MANAGEMENT EMPLOYEES MONEY DAMAGES AS A REMEDY FOR EVEN THOSE PERSONNEL ACTIONS THAT MAY VIOLATE AAFES REGULATIONS. IN ARMY AND AIR FORCE EXCHANGE SERVICE V. SHEEHAN, 456 U.S. 728 (1982), A WRONGFUL TERMINATION CASE BROUGHT BY A FORMER AAFES EMPLOYEE, THE SUPREME COURT STATED AT PAGE 740 AS FOLLOWS:

"*** THE COURT OF APPEALS' APPROACH WOULD 'RENDER SUPERFLUOUS' 'MANY OF THE FEDERAL STATUTES-- SUCH AS THE BACK PAY ACT-- THAT EXPRESSLY PROVIDE MONEY DAMAGES AS A REMEDY AGAINST THE UNITED STATES IN CAREFULLY LIMITED CIRCUMSTANCES.' UNITED STATES V. TESTAN, 424 U.S., AT 404. THE BACK PAY ACT, WHICH PERMITS AN EMPLOYEE TO RECOVER LOST WAGES DUE TO 'AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART' OF THE COMPENSATION TO WHICH HE OTHERWISE ENTITLED, 5 U.S.C. SEC. 5596(B)(1) (1976 ED., SUPP. IV), EXPRESSLY DENIES THAT CAUSE OF ACTION TO AAFES PERSONNEL. SEE 5 U.S.C. SEC. 2105(C)(1) (1976 ED., SUPP. IV). CONGRESS' INTENT TO PROHIBIT A BACKPAY CLAIM BY A SERVICE EMPLOYEE WOULD OBVIOUSLY BE SUBVERTED IF THE EMPLOYEE COULD SUE UNDER THE TUCKER ACT WHENEVER HE ASSERTED A VIOLATION OF THE SERVICE'S REGULATIONS GOVERNING TERMINATION. ***"

THUS, MR. RICE DOES NOT COME WITHIN THE PROTECTIONS OF THE BACK PAY ACT. MOREOVER, AAFES' OWN REGULATIONS DO NOT APPEAR TO PROVIDE A BASIS FOR HIS CLAIM THAT HE WAS WRONGFULLY DENIED A PROMOTION BASED ON HIS PERFORMANCE OF HIGHER GRADE DUTIES. WE NOTE THAT IN 1970, WHEN MR. RICE EXERCISED HIS OPTION TO ACQUIRE EXECUTIVE MANAGEMENT PROGRAM STATUS, HE SIGNED A STATEMENT BY WHICH HE SPECIFICALLY AGREED TO ACCEPT "ASSIGNMENTS TO POSITIONS GRADED LOWER OR HIGHER THAN MY PERSONAL GRADE OR PAY." IN VIEW OF THIS AGREEMENT, WE KNOW OF NO AUTHORITY TO COMPENSATE MR. RICE FOR HAVING PERFORMED HIGHER GRADE DUTIES.

IN CONNECTION WITH THE ABOVE DISCUSSION, WE BELIEVE IT IS APPROPRIATE TO POINT OUT THAT THIS OFFICE HAS NO AUTHORITY OVER PAYMENTS FROM FUNDS OF NONAPPROPRIATED FUND ACTIVITIES SUCH AS AAFES AND WE, THUS, LACK JURISDICTION OVER THE ISSUES RAISED BY MR. RICE. WE HOPE THAT THE ABOVE EXPLANATION, NEVERTHELESS, WILL BE OF ASSISTANCE TO MR. RICE IN UNDERSTANDING THE BASIS UPON WHICH DEPARTMENT OF THE ARMY OFFICIALS HAVE DENIED HIS REQUEST FOR RETROACTIVE PROMOTION WITH BACKPAY. THE DOCUMENTS FORWARDED WITH YOUR LETTER ARE RETURNED.