Office of Merit Systems Oversight and Effectiveness

Date: March 19, 2001
File Number: [OPM#]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant, an employee of the [agency], is requesting that the effective date of her promotion, from a GS-0511-11 to a GS-0511-12, be changed from May 7, 2000 to April 9, 2000 and she subsequently be paid retroactively. For the reasons discussed herein, the claim is denied.

The claimant provides documentation, showing that her supervisor recommended her for promotion to the GS-12 level on February 11, 2000. According to the claimant and her supervisor, she was eligible for this promotion on April 9, 2000. However, based on a copy of the personnel action, [the claimant's] promotion was not made effective until May 7, 2000. [The claimant] contends that the personnel office's tracking report showed that the personnel office received the personnel action on February 28, 2000; however, it was "lost in the mail" and not processed until May 11, 2000. The agency agrees that the personnel action was electronically received on February 28, 2000. However, the agency's "authorized approving official" did not approve the promotion request prior to April 9, 2000 and, therefore, the agency contends that they cannot retroactively effect her promotion to that date.

The Civilian Personnel Law Manual states that:

in cases involving approval of retroactive promotions on the ground of administrative or clerical error, it is necessary that the official having delegated authority to approve the promotion has done so. Thus, a distinction is drawn between those errors that occur prior to approval of the promotion by the properly authorized officials and those that occur after such approval but before the acts necessary to effectuate the promotion have been fully carried out. The rationale for drawing this distinction is that the individual with authority to approve promotion requests also has the authority not to approve any such request. Where the error or omission occurs before he exercises that discretion, administrative intent to promote at any particular time cannot be established.

B-190408, December 21, 1977.

According to the agency, the Director of the Civilian Personnel Office of the [name] is the agency's "authorized approving official" for this installation; not the employee's supervisor. Because promotion appointment authority is discretionary with the agency official granted such authority, an employee is not entitled to a promotion until such appointment authority has been exercised. Inasmuch as the official who was delegated authority to approve such promotions had not done so prior to April 9, 2000, there is no statutory authority under which a retroactive promotion and back pay can be awarded. B-183969, B-183985, July 12, 1975.

Based on the SF-50 Notification of Personnel Action, the claimant's promotion action was approved by the agency's authorized approving official on May 12, 2000. Therefore, the claimant cannot be retroactively awarded back pay and her promotion cannot be made effective on April 9, 2000. 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 agency's factual 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 employee's right to bring an action in an appropriate United States Court.