Office of the General Counsel

Date: November 28, 2000
Matter of: [Claimant]
File Number: 00-0016

OPM Contact: Melissa Drummond

The claimant, a GS-14 branch chief within the [agency], asserts that he is entitled to back pay for performing the duties of a higher-graded position. The claimant states that he performed the duties of a GS-15 division director from May 21, 1998 through February 16, 2000. The claimant is requesting to be compensated from the 121st day of the detail until February 16, 2000. For the reasons discussed herein, the claim is denied.

To establish a claim for back pay based on the performance of the duties of a higher-graded position, a claimant must show that (1) an agency regulation or agreement requires a temporary promotion to a higher-graded position and (2) that the claimant was, in fact, detailed to a higher-graded position. See Philip M. Brey, B-261517, December 26, 1995; Everett Turner and David L. Caldwell ("Turner-Caldwell III"), 61 Comp. Gen. 408 (1982); and Albert C. Beachley and Robert S. Davis, 61 Comp. Gen. 403 (1982).

The claimant contends that both requirements have been met. First, the claimant submitted the agencys Merit Staffing Policy 335.1 and highlighted that portion of the policy, applicable to the staffing of non-bargaining unit positions at GS-15 and below, which he believes applies to his claim. It reads:

The following actions require competition . . .

c. Details over 120 days to higher graded positions, or positions with known promotion potential; and details of less than 120 days, if, by the end of the detail period an employee will have served more than 120 days of the preceding 12 months in higher graded positions or in positions with known promotion potential.

In addition, the claimant states that he was told by management that he was to be detailed to the position, that a temporary promotion not to exceed 120 days would be processed for him, and that an announcement to merit staff the position would also be processed.

To support his claim, the claimant provided an agency personnel action control sheet, which reflects the signature of the Comptroller as the requesting officer for a temporary promotion to the GS-15 position for the claimant. However, this control sheet does not show that this request was approved or disapproved by the appropriate authorities. A follow-up request to the agency for the corresponding personnel action, in the form of a SF-50 Notice of Personnel Action, was to no avail. According to the agency, a personnel action was never processed for the claimant. Therefore, the claimant was never officially detailed to the higher-graded position.

Generally speaking, where the official record does not support a claim, the claim must be denied. See 4 C.F.R. 31.7. See also Nathaniel C. Carter, B-238487, May 25, 1990; Jones and Short, B-205282, June 15, 1982; and Wade B. Bumgardner, B-184795, August 5, 1976. However, the agency does not deny that the claimant served on an unofficial detail to the higher graded position. (They do disagree upon the actual date when the detail ended, citing that the claimants detail ended on July 31, 1999.) Nevertheless, they contend that the claim should be disallowed because the first requirement has not been met.

Their assertion is based on the Comptroller General Decision, Albert W. Lurz, 61 Comp. Gen. 492 (1982). That decision states that an agency by regulation or collective bargaining agreement may establish a policy under which it becomes mandatory to promote employees detailed to a higher graded position. It further states that:

if the regulation or agreement establishes a nondiscretionary agency policy and if the provision in question is consistent with applicable Federal laws and regulations, then the violation of such a mandatory provision in a regulation or negotiated agreement which causes an employee to lose pay, allowances or differentials may be found to be an unjustified or unwarranted personnel action under the Back Pay Act, 5 U.S.C. 5596.

The agency stipulates that they have no such regulation, nor is the claimant covered by a collective bargaining agreement. Furthermore, if a temporary promotion for the position had been advertised, there is no guarantee that the claimant would have been selected.

We concur with the agency that the first requirement has not been met. Although the agencys policy requires competition for details over 120 days, it is not mandatory that a nondiscretionary promotion action, such as a temporary promotion, be processed for the incumbent of the detail. Rather, the agency may open the position for competition and they may, or may not, select the employee who has been performing the duties as the best-qualified person for the position.

While Federal law prohibits agencies from detailing employees for more than 120 days unless the detail has been renewed, it is well settled that the failure of an employing federal agency to comply with the 120 days restriction does not result in entitlement to back pay. United States v. Testan, 424 U.S. 392, 400 (1976); Wilson v. United States, 229 Ct. Cl. 510 (1981); and Everett Turner ("Turner-Caldwell III"), 61 Comp. Gen., 408, May 25, 1982.

In summary, since the agencys merit staffing policy does not constitute a nondiscretionary agency policy that requires a temporary promotion to a higher-graded position, the awarding of back pay is improper. The claim is denied.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the record presents an irreconcilable factual dispute, the burden of proof is on the claimant to establish the liability of the United States. Jones and Short, B-205282, June 15, 1982. Where the agency's determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

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