Claim for Retroactive Temporary Promotion and Backpay

GAO considered issues raised in connection with its reconsideration of a claim by an employee of the Social Security Administration (SSA) for a temporary retroactive promotion and backpay. The record showed that the employee was detailed for nearly 5 months from his official position to a higher grade position and that the employee filed a claim for backpay based on an overlong detail. SSA determined that the detail violated agency regulations which state that, when assignments to higher level work are expected to exceed 60 days, they should be made by temporary promotion rather than by detail. SSA concluded that the claimant was on detail for the first 60 days, but his temporary promotion could only be effected for that portion of his assignment not covered by a Presidential freeze on promotions. A claim for a retroactive temporary promotion and backpay was subsequently filed with GAO. The claims settlement not only denied the claim, but also held that SSA temporarily promoted the claimant 60 days early. SSA argued that its interpretation of its own regulation and the interpretation of the collective bargaining agreement by both management and the union should be given effect. The primary issue raised by SSA was whether the agency regulation and the comparable provision of the collective bargaining agreement established a nondiscretionary agency policy. GAO held that: (1) the agency's determination that the 60-day detail provision was mandatory in the sense of being a nondiscretionary agency policy was reasonable and, therefore, SSA had a mandatory duty to temporarily promote the claimant on the 61st day of his detail; (2) since the Presidential freeze barred any promotions for its duration, SSA acted properly in promoting the claimant retroactively to the first permissible day following the 61st day of his detail; and (3) it was appropriate for it to consider the claim, since to refuse to do so would be disruptive to labor-management procedures. Accordingly, the claim may be paid as recommended by SSA.