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B-201708 1 (1981-05-06)

handle is hein.gao/gaobadjjh0001 and id is 1 raw text is: THE COMPTROLLER GENERAL DECISION .OF THE UNITED STATES WAS HINGT N. 0.C. 20548 FILE: B-201708 DATE: May 6, 1981 MATTER OF: Michael Kovalovsky -L Caim for backpay and other benefits incident to delayed appointment DIGEST: Individual's appointment as Deputy U.S. Marshal was delayed after agency sought to remove his name from list of eligibles on grounds he was over agency age limita- tion for appointment. Although Civil Service Commission ruled individual must be considered for appointment, agency retained discretion to appoint. Since individual has no vested right to appoint- ment, he is not entitled to retroactive appointment, backpay, or other benefits under the Back Pay Act. ISSUE The issue in this decision is'whether an applicant for employment with the U.S. Marshals Service is en- titled to backpay and other benefits where the agency erroneously applied a maximum age limitation on appoint- ments and delayed his appointment nearly 2 years. We hold that the employee is not entitled to a retroactive appointment and backpay under the Back Pay Act, 5 U.S.C. § 5596, where the agency retained the discretion to appoint. BACKGROUND This decision is in response to a request from the American Federation of Government Employees (union) concerning the claim of Mr. Michael Kovalovsky for backpay and other benefits incident to his delayed appointment as a Deputy U.S. Marshal. This decision has been handled as a labor-relations matter under our procedures contained in 4 C.F.R. Part 21 (1980), as amended in 45 Fed. Reg. 55689, August 21, 1980, and in this regard we have received comments on this matter' from the U.S. Marshals Service (agency) and the office of Personnel Management (OPM).

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