B-197732, MAR 27, 1981

B-197732, MAR 27, 1981

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIM OF MR. SAMUEL D. BAUGHMAN FOR RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY BASED ON AN OVERLONG DETAIL TO A HIGHER GRADE POSITION.

MR. BAUGHMAN WAS AN EMPLOYEE OF ERDA, AN EXCEPTED AGENCY, AND WAS

MR. BAUGHMAN WAS AN EMPLOYEE OF ERDA, AN EXCEPTED AGENCY, AND WAS THE FORMATION OF THE DEPARTMENT OF ENERGY, HE WAS DETAILED TO ACT AS CHIEF, GRAPHICS SECTION, WHICH HAD BEEN A GG-13 POSITION IN ERDA, AND THUS HAD NOT BEEN IN THE COMPETITIVE SERVICE OR UNDER THE GENERAL SCHEDULE. HOWEVER, PUBLIC LAW 95-91, AUGUST 1977, WHICH CREATED THE DEPARTMENT OF ENERGY, OFFICIALLY TRANSFERRED ERDA TO DOE, BRINGING THE ERDA POSITIONS INTO THE COMPETITIVE SERVICE. WHEN MR. BAUGHMAN FILED A CLAIM FOR RETROACTIVE TEMPORARY PROMOTION UNDER THE TURNER-CALDWELL LINE OF DECISIONS, DOE DENIED HIS CLAIM ON THE BASIS THAT ALL ERDA POSITIONS WERE CANCELLED UPON FORMATION OF DOE AND THE POSITION TO WHICH HE WAS DETAILED WAS NOT CLASSIFIED AND ESTABLISHED UNTIL MARCH 2, 1979, 78 DAYS PRIOR TO THE END OF HIS DETAIL. SINCE THE CHIEF, GRAPHICS BRANCH, HAS STATED THAT THE OVERALL DUTIES AND RESPONSIBILITIES OF THE POSITION DID NOT CHANGE DURING THE PERIOD INVOLVED, AND THE OFFICIAL INCUMBENT OF THE DETAIL POSITION WAS ALSO TRANSFERRED TO DOE, WE QUESTION WHETHER THE POSITION WAS ACTUALLY CANCELLED BY THE MASS TRANSFER FROM ERDA TO DOE, AND SUGGEST THAT THE POSITION MAY MERELY HAVE MOVED FROM THE EXCEPTED SERVICE TO THE COMPETITIVE SERVICE AT THAT TIME. IF THIS IS THE CASE, THEN IT SHOULD BE DETERMINED WHETHER OR NOT A POSITION EVALUATED AGAINST THE ERDA FACTOR EVALUATION SYSTEM WOULD BE CONSIDERED CLASSIFIED FOR THE PURPOSE OF RETROACTIVE TEMPORARY PROMOTION UNDER THE TURNER-CALDWELL LINE OF DECISIONS.

BECAUSE OF THE DOUBTFUL ISSUES INVOLVED, WE REFER MR. BAUGHMAN'S CLAIM FOR YOUR CONSIDERATION.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP

RETURNED, TOGETHER WITH YOUR FILE Z-2816500. MR. SAMUEL D. BAUGHMAN HAS REQUESTED A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY BASED ON AN OVERLONG DETAIL TO A HIGHER GRADE POSITION. THE LEGAL QUESTIONS INVOLVE THE APPLICATION OF OUR TURNER-CALDWELL LINE OF DECISIONS, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). SPECIFICALLY WE ARE TO DETERMINE WHETHER THE TRANSFER OF THE ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION (ERDA) TO THE DEPARTMENT OF ENERGY (DOE) EFFECTIVELY CANCELLED ERDA POSITIONS, AS DOE CONTENDS, OR MERELY MOVED THEM FROM THE EXCEPTED SERVICE TO THE COMPETITIVE SERVICE. ASSUMING THE LATTER IS TRUE, IT IS THEN NECESSARY TO DETERMINE WHETHER A POSITION ORIGINALLY DESIGNATED AS EXCEPTED WITHIN ERDA WOULD BE CONSIDERED CLASSIFIED FOR THE PURPOSES OF GRANTING BACK PAY UNDER OUR TURNER-CALDWELL DECISIONS.

THIS OFFICE RECENTLY DECIDED A SIMILAR ISSUE IN JOYCE R. MORRISON, B-197206, AUGUST 12, 1980. IN THE MORRISON CASE A FEDERAL POWER COMMISSION (FPC) EMPLOYEE WAS TRANSFERRED WITH HER POSITION TO THE DEPARTMENT OF ENERGY 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 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.

WE BELIEVE THAT THE PRINCIPLES ESTABLISHED IN MORRISION WOULD APPLY HERE. HOWEVER, THE DIFFERENCE BETWEEN THE MORRISION CASE AND THE PRESENT ONE LIES IN THE FACT THAT WHILE THE POSITIONS TRANSFERRED TO DOE IN THE MORRISION CASE WERE ALREADY CLASSIFIED IN THE COMPETITIVE SERVICE, THE TRANSFERRED POSITIONS IN THIS CASE WERE AT ONE TIME IN THE EXCEPTED SERVICE UNDER ERDA. WE HAVE DECLINED TO AWARD BACK PAY WHEN AN EMPLOYEE WAS DETAILED FROM AN EXCEPTED SERVICE POSITION TO ONE IN THE COMPETITIVE SERVICE BECAUSE THE ASSIGNMENT REQUIRED PRIOR APPROVAL OF THE CIVIL SERVICE COMMISSION AND SUCH APPROVAL WAS NOT GRANTED. SEE MERLE H. MORROW, 58 COMP.GEN. 88 (1978).

THE PRESENT CASE IS DISTINGUISHABLE FROM MORROW, SUPRA, IN THAT HERE, AT THE TIME OF THE DETAIL ON JANUARY 6, 1978, AFTER THE FORMATION OF DOE, SAID DETAIL WAS, AS EXPLAINED BELOW, A TRANSFER FROM ONE POSITION CLASSIFIED UNDER THE GENERAL SCHEDULE TO ANOTHER.

UNDER ERDA, THE POSITIONS WERE TECHNICALLY "UNCLASSIFIED POSITIONS" SINCE THAT TERM IS USED SYNONYMOUSLY WITH "EXCEPTED POSITIONS." SEE FEDERAL PERSONNEL MANUAL (FPM) CH. 213-3, SUBCH. 1-1A. THUS, THEY WERE SPECIFICALLY EXEMPT FROM THE COMPETITIVE SERVICE. THE ERDA POSITIONS WERE, HOWEVER, CLASSIFIED ACCORDING TO OCCUPATIONAL STANDARDS AND PAY LEVELS, DENOTED BY GG LEVELS, WHICH WERE IN FACT IDENTICAL TO THE CLASSIFICATION CRITERIA USED IN THE COMPETITIVE CIVIL SERVICE. THE LEGISLATIVE HISTORY OF ERDA'S ORGANIC ACT REVEALS THE FOLLOWING COMMENTS BY THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS REGARDING EMPLOYMENT UNDER THE EXCEPTED PERSONNEL SYSTEM:

"EMPLOYEE PAY - THERE WOULD BE NO CHANGE IN THE PAY RECEIVED BY FEDERAL EMPLOYEES TRANSFERRED TO ERDA ***. ERDA *** WOULD CONTINUE TO APPLY A SALARY SCHEDULE UNDER THE AUTHORITY OF SECTION 161D. OF THE ATOMIC ENERGY ACT WHICH IS EQUIVALENT TO THAT PROVIDED BY LAW FOR THE COMPETITIVE SERVICE. WITHIN GRADE INCREASES WOULD BE EARNED AT THE SAME RATES AS IN THE COMPETITIVE SERVICE. FUTURE PAY INCREASES AUTHORIZED UNDER THE CLASSIFICATION ACT FOR FEDERAL EMPLOYEES WOULD APPLY TO ERDA *** EMPLOYEES."

S. REP. NO. 93-980, 93D CONG., 2D SESS. 86, JUNE 27, 1974.

FURTHER, STATUTORY AUTHORITY FOR PLACING DOE PERSONNEL UNDER THE GENERAL SCHEDULE IS FOUND IN SECTION 621(A) OF THE DOE ORGANIC ACT, WHICH PROVIDES:

ACCORDANCE WITH TITLE 5, UNITED STATES CODE." SEC. 621(A) OF PUB. L. NO. 95-91, 42 U.S.C. SEC. 7231 (SUPP I, 1977).

THE FPM STATES IN CH. 212-5, SUBCH. 2-2A THAT "A POSITION EXCEPTED BY STATUTE CAN BE BROUGHT INTO THE COMPETITIVE SERVICE ONLY BY STATUTE."

THEREFORE, WHEN THE ERDA POSITIONS WERE TRANSFERRED TO DOE BY THE DEPARTMENT OF ENERGY ORGANIZATION ACT, PUB. L. NO. 95-91 (AUGUST 4, 1977), GG LEVEL POSITIONS WERE SIMPLY CONVERTED BY STATUTE TO CORRESPONDING GS LEVELS.

WE ALSO NOTE THAT MR. BAUGHMAN PERFORMED THE SAME DUTIES IN BOTH THE GG AND GS POSITIONS, AND THAT THE POSITION DESCRIPTIONS ARE SUBSTANTIALLY IDENTICAL. THUS, BOTH THE POSITIONS OF CHIEF AND ASSISTANT CHIEF, DESIGN AND GRAPHICS SECTION, WERE CLASSIFIED UNDER THE GENERAL SCHEDULE AT THE TIME OF MR. BAUGHMAN'S DETAIL ON JANUARY 6, 1978. MR. BAUGHMAN IS THEREFORE ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD COMMENCING 120 DAYS AFTER THE START OF HIS DETAIL ON JANUARY 6, 1978.

HOWEVER, IT IS NOTED THAT THIS ENTITLEMENT PERIOD ENDED ON FEBRUARY 14, 1979, AND NOT MAY 19, 1979, AS ORIGINALLY REQUESTED. AS IN THE MORRISION CASE, THE EFFECT OF FPM BULLETIN NO. 300-48 MUST BE CONSIDERED. THUS MR. BAUGHMAN IS NOT ENTITLED TO BACK PAY FOR THE PERIOD BEGINNING FEBRUARY 15, 1979, AND ENDING JUST PRIOR TO THE EFFECTIVE DATE OF HIS PROMOTION (MAY 20, 1979).

MR. BAUGHMAN'S CLAIM SHOULD BE SETTLED IN ACCORDANCE WITH THE ABOVE.