s9802480

Office of the General Counsel

Date: March 31, 1999
Matter of: [xxx]
File Number: S9802480

OPM Contact: Murray M. Meeker

The claimant, a Technician at the [agency] in [xxx], seeks backpay as a result of the agency's delay in processing his temporary promotion. For the reasons discussed herein, the claim is denied.

There is no authority to effect a promotion retroactively or to award backpay where the processing of a promotion is delayed by events prior to the approval of the promotion by the properly authorized official. Carol A. Barraza, B-219221, September 6, 1985. It is also well established that the Government is not estopped by an unauthorized agency official's assurance that a promotion action will be affected on a particular date. See Keith A. Baker, B-186758, March 23, 1977.

The claimant has requested that his claim be considered under the Meritorious Claims Act, 31 U.S.C. 3702(d). Under the Meritorious Claims Act, claims which may not otherwise be paid, may be submitted by the Office of Personnel Management (OPM) to Congress with a recommendation in favor of payment by private relief legislation. However, OPM is in agreement with decisions of the Comptroller General which have concluded that such claims must contain such elements of legal liability or equity as to be deserving of the consideration of Congress and that the remedy is an extraordinary one which is limited to extraordinary circumstances. Robert Garcia, B-195374, September 14, 1979. Claims that are reported for congressional consideration generally involve equitable circumstances of an unusual nature which are unlikely to constitute a recurring problem; to recommend that Congress enact legislation on behalf of one claimant when similar equities exist or are likely to arise with respect to other claimants would constitute unwarranted preferential treatment. See Gerald R. Cutler, B-186639, September 1, 1976. Undoubtedly, other individuals perform duties above their assigned grade levels as a result of the assurances of supervisors that they will receive immediate compensation only to find that the additional compensation is not immediately forthcoming. OPM finds this claim to be neither unusual nor of a nonrecurring nature, and thus concludes that this claim is not appropriate for submission to Congress under the Meritorious Claims Act.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.