Office of the General Counsel

File: S000453

[XXX]

Dear [XXX]:

This replies to your request for an advance decision on claims by the above-named employees for retroactive promotions with back pay. Both employees have appointments as interns. You state that your agency has an established but unwritten policy to promote interns after one year of satisfactory service. Further, you state that the authorizing official for such personnel actions approved the promotions in the scheduled time frame but that, due to clerical errors, the promotions were delayed about one month.

As a general rule, personnel actions may not be made retroactive. However, a number of exceptions to this rule have been recognized, and you suggest that either of the following exceptions justify back pay in these cases: (1) the promotions were not effected as intended by the person having the authority to grant the promotion, or (2) the promotion is a matter of nondiscretionary policy.

From your description of the circumstances giving rise to these claims, we agree that the first exception applies here. OPM has not considered whether an established but unwritten policy is the type of nondiscretionary policy that might justify this type of back pay claim. However, since you have met the requirements of the first exception noted above, we need not reach that question.

Accordingly, the claims may be paid.

Very truly yours,

Paul Britner

Senior Attorney