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B-188211 1 (1977-11-17)

handle is hein.gao/gaobadfgd0001 and id is 1 raw text is: e6Cswy DECISION FILE: B-18J211 TH COMWTROLLER. m4SAL oP TH UNrED STAVES WASHSNGToN. g.c. 3054U OATE: Jovanber 17, 197' MATTtR OF: Joseph W Brogan - Claim for Retroactive Promotion and Bac'cpay C1GEFT: Employee of Department of Labor claims back- pay for period of allaged wrongful classifica- tion. Claimant has no entitlement since the Supreme Court held in United States v. Testan, 424 U.S. 392 (1976), that neither Clasaiication Act, 5 U.S.C. 5101*S5S1 (1970), nor the Back Pay Act, 5 U.S.C. 5596 (1970), creates a right to backpay for period of wrongtul position classification. Further, CAO is without jurisdiction to determine whether a position has been properly classifted. See Comp. Gen. does. cited. By letter dated December 9, 1976, Mr. Joseph W. Brogan, an employee of the Department of Labor, Occupational Safety and Health Administration (OSHA), appealed Settlement Certificate No. 7.-2707134, dated November 22, 1976, issued by our Claims Division which Isallowed Mr. Boganls claim for a retroactive promotion and accompanying backpay for the pe.iod December 17, 1972, to April 28, 1974. The tacts in this case as revealed by official records avail- able to this Office are as follows. The OSHA issued a vacancy announcement for a grade GS-1 Supervisory Safety Engineer position unuer the Department's Merit Promotion Plan on August 1, 1972. The vacancy announcement contained the Cllowing statement con- cerning time-in-grade restrictions: Applications will be accepted trom persons who do not meet thi new time-in-grade restric- tions but who are otherwise eligible. If such a person is selected for this vacanry, the position will be reconstituted at the next lower grade level until such time as the selected candidate meets the restrictions.,' Mr. Brogan, a grade 3S-13 Safety Specialist, applied for the position and was selected. Because he did not meet the time-in-grade criterion, a request for a waiver of this requirement was submitted on his behalf but was denied. Accordingly, the position was Ok ( 'I ! I OY% C' -r -~ I I I 1 I 4 I '1 I *

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