RETROACTIVE TEMPORARY PROMOTIONS FOR EXTENDED DETAILS TO HIGHER GRADES: CLAIMS OF(Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82-00357R000600130058-3
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 12
• Document Creation Date: December 9, 2016
• Document Release Date: April 6, 2001
• Sequence Number: 58
• Publication Date: November 1, 1976
• Content Type: MF

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MEMORANDUM FOR : Deputy Director of Personnel
Assistant General Counsel
Retroactive Temporary Promotions for Extended
Details to Higher Grades: Claims of STATINTL
REFERENCES . a. Letter to D/Pers fm 8 Mar 76
b. Letter to D/Pers fm t
dtd 16 Mar 76
c. Letter to Chief, Retirement Affairs f~WATINTL
dtd 2 Apr 76
d. Memo to m C/Transportation and Records
Branch, O/P, dtd 7 May 76
1. You requested guidance in responding to the subject claims for
compensation by Messrs. Please excuse
the delay in responding to your request
2. Each of these claims is based on two Comptroller General decisions
(B-183086, 5 December 1975, and B-184990, 20 February 1976) which
interpret Civil Service Commission (CSC) regulations as requiring that
employees detailed to higher grade positions in excess of 120 days with no
prior approval from the CSC be given retroactive temporary promotions
and back pay for the period beyond 120 days for the difference between
the compensation they received and the normal compensation of positions
to which they were assigned. We have reviewed these decisions and the
regulations and laws on which they are based, and it is our opinion
that the decisions do not support the claims for compensation for
the reasons that (1) the CSC regulations involved are not directly applicable
to Agency employees; (2) the Agency has no regulations of its own which
mandate procedures comparable to the CSC regulations; and, in any event,
(3) it is uncertain whether retrospective relief in the form of back pay
could be granted by the Agency in these circumstances.
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The Claims
STATINTL 3. Mr. a former DDO employee and an Agency
retiree since August 1974, claims to have been detailed to a GS-12 position
during the period June 1968 to 1 April 1970. Mr.
a current DDI employee, is a GS-13 who claims to have been assigned to
a GS-14 slot since August 1973. Mr. another former
DDO employee and an Agency retiree, claims to have been assigned to a
GS-13 position during May 1967 through June 1970 while being paid at a
GS-12 level.
4. The official personnel folders of the claimants, as interpreted by
your office in Reference d . , appear to indicate that the claimants were
indeed assigned to or "detailed" to higher grade positions while continuing
to be incumbent of the positions from which they were detailed. The record
STATINTL shows that Mr. as paid at a GS-11 level while occupying a
GS-11 position rom arch 1968 through 1 January 1969 but subsequently
was assigned to a GS-12 position and held that position at least through
STATINTL 1 April 1970. Mr. was paid at a GS-13 level since 9 July 1971
but was assigned to a GS-14 position through 23 December 1975, when he
was reassigned to a GS-13 position. Mr. was paid at a GS-12 level STATINTL
while occupying a GS-12 position during e period 9 June 1967 to 2 June
1968. On that date he was assigned to a GS-13 position, while continuing
to be paid at a GS-12 rate, and remained in this assignment until. 20 July,
1971. Of course, the official records, particularly with regard to
STATINTL Mr. may not reflect all component authorized details.
The Comptroller General Decisions
5. In Comp. Gen. decision No. B-183086 (5 December 1975), two
Bureau of Mines employees were detailed to higher grade positions in
excess of 120 days and no prior approval of extension beyond 120 days
was sought from the CSC. One employee had immediately assumed the
duties of the higher grade position as he was obligated to do under his
new position description and the other had been designated as "Acting"
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in the higher grade position. After the details were terminated and the
employees reassumed the duties of their official positions, both employees
filed a grievance and subsequently appealed to the CSC. Ultimately
the CSC's Board of Appeals and Review (now redesignated as the Appeals
Review Board) determined (1) that the Commission had jurisdiction
to hear the complaints, and (2) that the CSC regulations regarding temp-
orary promotions, taken together with others dealing with details to
higher grade positions, were mandatory rather than discretionary as to
details to higher grade positions extending beyond 120 days, and that, there-
fore, absent consent by the Commission to an extension beyond 120 days,
(3) employees so detailed were entitled to temporary promotions. The Comptroller
General, ruling on the "general principle of law that interpretations of regulations
by the agency charged with their administration are entitled to be given great
weight by a reviewing authority, " upheld the determinations of the Board.
The Comptroller General considered that the Board's decision, although novel,
was a "clarification" rather than a substantive amendment of such regulations
and overruled a previous Comp. Gen. decision, 52 Comp. Gen. 920 (1973),
which interpreted the relevant regulations as being discretionary. Inasmuch
as the employees had undergone an unjustified or unwarranted personnel
action as a result of agency officials failing to comply with mandatory regula-
tions, the Comptroller General held that they were entitled to back pay under
the Back Pay Act of 1966, 5 U.S.C. ?5596 (1970) and the Commission's
implementing regulations contained in 5 CFR, part 550, subpart H. In
passing, the Comptroller General noted that the Whitten Amendment, 5 U. S . C .
?3101 which requires that an employee serve one year in the next lower
grade before he is eligible for either a temporary or permanent promotion,
posed no irreconcilable conflict with the Board's determination, since the
Board "would have had authority to waive the time-in-grade requirements to
avoid hardship or inequity if it chose to exercise its discretion to do so. "
6. In Comp. Gen. decision No. B-184990 (20 February 1976), the Air
Force detailed a GS-4 employee to a GS-5 position for over one year
without obtaining the CSC's prior approval of extension beyond 120 days.
The Comptroller General, relying on his decision in B-183086, determined
that the Air Force should grant the employee a temporary promotion with
back pay for the period beginning 121 days after her detail began. The
Comptroller General, at p. 2 of his decision, stated that:
Because our decision [in B-183086] was based on a clarification
rather than a substantive amendment to CSC regulations governing
employee details, the decision will be given retrospective as well
as prospective application. Accordingly, the temporary promotion
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rule for details over 120 days is to be applied to any claim con-
cerning this matter, provided the [CSC] detail regulations .. .
in effect at the time of the detail is [sic] substantially the same
as in effect at the time of the CSC ruling. Also, the claim must
be filed, within the 6-year period ?71a (Supp. IV, 1974). Back
pay claims involving extended details that we have previously
considered and disallowed, may be resubmitted for reconsideration
by this Office under the conditions stated in this decision.
7. Several subsequent decisions of the Comptroller General, issued early
in 1976, are consistent with the principles expressed in B-183086 and B-184990.
However, it has recently come to our attention that in light of recent Supreme
Court cases, including United States v. Testan, which is discussed in this
memorandum, the CSC is reconsidering its interpretation of the detail
regulations upon which the Comptroller General decisions cited by claimants
are based. I have been advised by legal counsel at GAO who were instru-
mental in forming the Comptroller General decisions at issue that, in light of
this reconsideration, the Comptroller General has put a freeze on responding
to additional claims based on those decisions until the Commission formally
responds to a letter from the Comptroller General. Until the Comptroller
General is provided with a formal reply, the legal effect of the decisions is
at best uncertain.
The Applicability of CSC Regulations to CIA
8. The CSC regulations upon which the Comptroller General decisions
are based include regulations from which CIA employees are specifically
exempt. The CSC Appeals Board's decision which the Comptroller General
approved in B-183086 recognized the discretionary power of agency officials
to grant or not grant promotions, but reasoned that in view of CSC regulations
dealing with details, which are found at FPM chapter 300, subchapter 8,
that the "discretionary authority of an Agency official to grant a temporary
promotion to an employee detailed to a higher grade position or to assign
him to the position without a temporary promotion lasts, at most, for 120 days, "
see Board's slip opinion, p. 7, cited in B-183086 at p. 4. The Board quoted
extensively from subchapter 8 entitled "Detail of Employees." Subparagraph
8-4c stated that:
Details to higher grade positions. Except for brief periods, an
employee should not be detailed to perform work of a higher grade level
unless there are compelling reasons for doing so. Normally, an
employee should be given a temporary promotion instead. If a detail
of more than 60 days is made to a higher position, or to a position with
known promotion potential, it must be made under competitive pro-
motion procedures. [emphasis supplied]
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Subparagraph 8-3(b) (2) states that:
Since extended details also conflict with the principles of job
evaluation, details will be confined to a maximum period of 120
days unless prior approval of the Civil Service Commission is
obtained as provided in section 8-4f. All details to higher grade
positions will be confined to a maximum initial period of 120 days
plus one extension for a maximum of 120 days.
Subparagraph 8-4f states that:
(1) When it is found that a detail will exceed 120 days,
or when there is a question of the propriety of the detail, the
agency must request prior approval of the Commission on
Standard From 59. (Underscoring added.)
As a result of these provisions, the Board determined that what should
have occurred is expressed in subparagraph 8-4e, as follows:
Except for brief periods, an employee should not be detailed
to perform work of higher grade level unless there are compelling
reasons for doing so. Normally, an employee should be given a
temporary promotion instead.. ..
9. The present coverage of Subchapter 8, however, does not
extend to employees of CIA. Coverage is expressly limited to details
of employees serving in competitive positions or in positions under the
General Schedule. Subparagraph 8-2 provides as follows:
8-2. Present Coverage of Subchapter. The material now
covered in this subchapter related only to details within the same
agency of employees serving in competitive positions or in
positions under the General Schedule, without change in the
employee's civil service or pay status. [Emphasis added.]
Agency employees do not serve in competitive positions or in positions under
the General Schedule "Competitive position" means a position in the
competitive service, see e . g . , ?1. 3 of E.O. 10577 (Nov 22, 1954). Sections
2102 and 2101 of Title 5, U . S . C define the "competitive service" to include
all appointive positions in the executive branch except "positions which
are specifically excepted from the competitive service by or under statute. "
Since CIA employees are appointed under the authority of Section 8(a) of
the CIA Act, which authorizes expenditures for personal services
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notwithstanding "any other provisions of law," CIA positions are excluded
from the competitive civil service.
Agency Regulations
10. If, as has been shown, the CSC regulations upon which the recent
Comptroller decisions were based are not directly applicable to CIA,
the Agency need not award claimants retroactive temporary promotions
unless the Agency's own regulations mandate such actions. In our opinion,
they do not,
11. It is a general rule that personnel actions may not be effected
retroactively so as to increase the right of an employee to compensation
except (1) where through administrative or clerical error a personnel
action was not effected as originally intended, (2) where an administrative
error has deprived the employee of a right granted by statute or regulation,
or (3) where nondiscretionary administrative regulations or policies have
not been carried out, Comp. Gen. decision No. B-178156, 5 June 1973,
citing B-172077, 7 April 1971, B-165125, 28 October 1968. The Comptroller
General determined that the CSC detail regulations, read together, were
nondiscretionary or mandatory with respect to periods longer than 120 days
and so fell within the third exception.
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12. CIA personnel regulations, however, do not specifically provide
for detail procedures comparable to those in Subchapter 8 of the Federal
Personnel Manual on which the Comptroller General decisions are based.
They do provide that, although as a matter of policy "[a] ssignments will
normally be made to a position at the employee's grade," "an employee
may be assigned [nevertheless] to a position of ....higher grade" and
"may occupy a grade higher than his grade when (1) for training purposes
the assignment is intended to afford the employee broader developmental
opportunities in his career field; or (2) the employee is the best qualified
STATINTL person available at that time for the position," see
STATINTL
STATINTL
13. It is advanced, however, by one of the claimants, that his claim is
supported by Agency regulations "which make it clear that CIA personnel
management procedures should adhere strongly to the concepts, spirit
and principles of CSC regulations pertaining to personnel management,"
see Reference B. In support, he cites TATINTL
and A close examination of these regu a ion ,
the require adherence to all CSC regulations .-merely states
that the principle of "[a]dherence to Federal personnel policies and
statutory requirements applicable to Agency activities," personnel policies
(emphasis added) will be applied by the Agency. provides thEBTATINTL
staff personnel "serve in an employment relationship which entitles them to
normal benefits provided under general Federal law or regulation for
appointed employees except as modified pursuant to laws applicable to
the Agency." (emphasis added) rovides that Deputy Directors STATINTL
will develop staffing complements, su sec to appropriate review of Heads
of Career Services and the Director of Personnel, which "identifies the
positions to which ...personnel are assigned to carry out the assigned
missions and functions of the component, the positions allocated to each
element thereof (identified by type, grade, and career service), and the
planned incumbency of each position. Not only do none of these regulations
require compliance with the CSC regulations which are not legally applicable
to the Agency, but further, as noted in paragraph 12 above, STATINTL
requires assignments at variance with CSC regulations.
14. provides that " [a] lthough specifically exempted from
the provisions of the [Classification Act of 19491 , the Agency has adopted
the grade structure and pay scales provided therein and adheres to the
basic philosophy and principles of the act in determining the appropriate
salary rate for staff personnel assigned to General Schedule (GS) positions. "
provides that it is Agency policy to follow the concepts and
principles of the Classification Act in setting up occupational categories and
pay levels for Agency positions. The Classification Act does not address
detail or promotion policies. Moreover, these regulations merely express a
long-standing Agency policy of adhering to the provisions and principles
of the Act insofar as practicable notwithstanding the fact that CIA is specifically
exempt from its coverage. This policy originally found expression in corres-
pondence between the Agency and the CSC in 1949. At that time, Director
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You may be assured that in our internal personnel administration
we will be governed by the basic philosophy and principles of the
Classification Act, the Civil Service Commission's allocation standards,
the pay scales, the within-grade salary advancement plans, and the pay
rules of the Classification Act, as they may be amended from time to
time, in substantially the same manner as provided for other agencies.
More recently, in a memorandum of 8 October 1962, the Acting Director of
Central Intelligence stated that:
This memorandum will serve to reaffirm the existing policy that
the Agency, insofar as practicable, will adhere to the compensation
schedules and other provisions of the Classification Act of 1949, as
amended, and as it may be amended hereafter, for all staff personnel
of the Agency except as may be otherwise authorized by the Director
of Central Intelligence. [emphasis added]
Revision of the general compensation schedule, provisions for
initial adjustment of salaries to such revised schedules, and other
changes in the Classification Act will be given effect in the future by the
Central Intelligence Agency whenever the law is amended. The effective
date of such revisions and changes will be in accordance with the pro-
visions of law making such changes.
15. Assignments of Agency employees to positions of higher grades for
extended periods are not necessarily inconsistent with these expressions of
Agency policy. As already described, the decisions of the Comptroller General
upon which the present claimants rely are based, not on express provisions of
the Classification Act or any other statute, but only on CSC detail regulations,
which are expressly limited to employees serving in competitive positions or in
positions under the General Schedule, and the Commission's interpretation of
those regulations.
16. In any event, according to the record, each of the claimants has been
compensated at GS levels appropriate to his capabilities and responsibilities.
STATINTL Under "[a] n employee's official assignment to an authorized (planned)
position means that he is (1) performing at his grade level the type of duties
which are covered by the service designation and title of the position." According
to CSC regulations (subpara. 8-1 of subchapter 8), moreover, a position is not
technically filled by a detail, but rather the employee continues to be the incum-
bent of the position from which detailed. When and if an employee exhibits an
ability to undertake increased responsibilities, he is promoted. The practical
effect of extended assignments to higher grade positions is to provide an employee
an opportunity to develop his capabilities and to give him "headroom" should
those capabilities warrant promotion. CSC regulations, in this regard, provide
that " [a] temporary promotion is not appropriate ... for training or evaluating
an employee in a higher grade position," see subpara. 4-4, Chapter 335 of the
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17. The Comptroller General has acknowledged the propriety of CIA's
assignment policies. In a decision dating back to 1 December 1959 (B-140877),
he held that mere adoption of the principles of the Classifiaction Act in
the Agency's regulations, rules, and actions does not require, in light
of the express exemption of CIA from the Act and its unique statutory authori-
ties, that CIA follow 5 U . S . C . ?38 (now ?3341) which essentially limits
details to 120 days. In that decision, an employee alleged that he
had been compensated by CIA for a number of years at a GS-16 level whereas
he had performed the responsibilities and duties of GS-17 and GS-18 positions
which continued to exist during the period he had performed those duties,
and that he was entitled to the difference in pay. The Comptroller General,
in rejecting the claim, stated that since the record showed that irrespective
of what may have verbally been told him by his superiors, his qualifications
were considered under the regulations of the Agency and determined to be
proper for grade GS-16... and that [he had] received compensation, for
the period involved, at grade GS-16, the only grade [he] held officially during
the period, [he had] no basis, upon the ... record; for allowing [his]
claim. " This decision has not been overruled.
18. Finally, it is significant that the Agency has never determined,
directly or by implication from its practices, either prior or subsequent
to the recent Comptroller General decisions, that its regulations require
temporary promotions in the circumstances alleged by the present claimants.
As the Comptroller General acknowledges, the interpretation of regulations
by an Agency charged with their administration is entitled to be given great
weight.
Retroactive Pay Increases
19. If the claimants are not entitled to retroactive temporary promotions under
Agency regulations, then the claimants would not be entitled to back pay on the
basis of the Comptroller General decisions under discussion. Moreover, even
were it determined that such retroactive promotions were appropriate, it is
doubtful whether the Agency has the requisite authority to grant such
make-whole remedies as awarding back pay, and in any event would be
entitled to delay implementation of the award until such time as the Agency
receives an advance decision from the Comptroller General as to whether
the awards are in conformance with the requirements of law. In 1951,
for example, when the Agency sought approval of the Comptroller General
to grant retroactive pay increases equivalent to increases in salaries paid
classified employees under the Classification Act, the Comptroller General
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in B-106516, 21 November 1951, held that, despite "an administrative policy
of adherence to the provisions of the Classification Act" as described in
correspondence between the Agency and CSC in 1949 (see para. 12 above),
retroactive pay increases in CIA salaries would not be expenditures
"necessary to carry out its functions" within the meaning of what is now
section 8(a) of the CIA Act of 1949, and therefore "would be subject to legal
objection. In 1964, in another Comptroller General decision, B-106516,
20 August, it was held that the Agency could make adjustments in salaries
to parallel statutory increases with respect to classified employees, speci-
fically citing a change in Agency policy as reflected in 1962 memorandum,
see para. 13 above. The 1964 decision, however, did not overrule the
general principle of the 1951 decision but merely distinguished it, holding
that the new expressed policy of the Agency of giving effect to future revisions
of the general compensation schedules was not inconsistent with the general
rule against retroactive compensation.
20. Nor does the Back Pay Act, 5 U . S . C . ?5596 assuming arguendo
that it is applicable to Agency personnel actions, compel a contrary conclusion.
The Act authorizes retroactive recovery of wages whenever a Federal employee
"is found by appropriate authority under applicable law or regulation to
have undergone an unjustified or unwarranted personnel action that has
resulted in the withdrawal or reduction of all or part of the compensation"
to which the employee is otherwise entitled. The Back Pay Act, however,
does not create a substantive right to back pay in itself and if claimants are
not entitled to compensation under the CSC regulations or under Agency
regulations, the Back Pay Act is inapplicable. This point is emphasized
in a recent Supreme Court decision, United States v. Testan, 47 L. Ed.
2d 114 (March 2, 1976). In that case two GS-13 Government trial attorneys
sued in the Court of Claims to compel the CSC to reclassify their positions
to grade GS-14, contending that their duties and responsiblities met the
requirements of the higher grade and were identical to those of other trial
attorneys classified as GS-14 in another agency, and that under the principle
of "equal pay for substantially equal work" prescribed in the Classification
Act, they were entitled to the higher classification. Each attorney also
sought back pay for the period subsequent to the initial denial of their
agency for reclassification. The Supreme Court, in rejecting the claims,
held that neither the Classification Act nor the Back Pay Act creates a sub-
stantive right in the respondents to back pay for the period of their claimed
wrongful classifications. The Court at 125 and 126 analyzed the Back Pay
as follows:
[The Back Pay Act] ... does not apply, in our view, to
wrongful classification claims ....The statute's language was intended
to provide a monetary remedy for wrongful reductions in grade,
removals, and suspensions, and "other unwarranted or unjustified
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actions affecting pay or allowances [that] could occur in the
course of reassignments and change from full-time to part-time
work. [citations omitted]
* * * *
For many years federal personnel actions were viewed as
entirely discretionary and therefore not subject to any judicial
review, and in the absence of a statute eliminating that discretion,
courts refused to intervene where an employee claimed that he had
been wrongfully discharged. [citations omitted] Relief was
invaribly denied where the claim was that the employee had been
denied a promotion on improper grounds [citations omitted]
Congress, of course, now has provided specifically in the
Lloyd-LaFollette Act, 5 U.S.C. ?7501 [a statute which applies
only to personnel in the competitive service] , for administrative
review of a claim of wrongful adverse action, and in the Back
Pay Act for the award of money damages for a wrongful deprivation
of pay. But federal agencies continue to have discretion in
determining most matters relating to the terms and conditions of
federal employment. One continuing aspect of this is the rule,
mentioned above, that the federal employee is entitled to receive
only the salary of the position to which he was appointed, even
though he may have performed the duties of another position or
claims that he should have been placed in a higher grade.
Congress did not override this rule, or depart from it with its
enactment of the Back Pay Act. It could easily have so provided
had that been its intention.
Conclusions and Recommendations
21. In conclusion, it is our opinion that your office should reject
each of the claims for the reasons discussed in this memorandum, at
least insofar as they are based on the two Comptroller General
decisions which are cited. We suggest, however, that you
review and determine to your satisfaction that each of the claimants
was indeed "detailed" to higher grade positions for periods beyond
120 days. At the same time you might check to see whether through
administrative or clerical error a promotion to which any of the claimants
was entitled during the periods of extended details was not effected as
originally intended before you make your final decision.
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22. If you confirm (1) that the claimants were indeed detailed to
higher grade positions for extended periods; (2) that there is no
evidence that any of the claimants had been denied promotions through
administrative or clerical error; and (3) that these details were in fact
consistent with Agency policy regarding internal details, you should
deny each claim and inform claimants that the Comptroller General decisions
are inapplicable to Agency personnel. Further it should be suggested that
the claimant, if still dissatisfied, may submit an appeal through the
Inspector General, to the DCI, according to the grievance procedure in
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