B-177149, DEC 15, 1972
Highlights
CSC BULLETIN NO. 531-51 HAS NO APPLICATION TO LAW CLERKS OF FEDERAL COURTS SINCE THEIR COMPENSATION IS FIXED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE U.S. A FEDERAL EMPLOYEE IS ONLY ENTITLED TO THE SALARY OF THE POSITION TO WHICH HE IS OFFICIALLY APPOINTED. IS NOT CONTROLLING HERE. SINCE THE PROMOTION OF LAW CLERKS IS A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS AND IS NOT A STATUTORY RIGHT. PLANNED TO PROMOTE YOU FROM ASSOCIATE LAW CLERK TO SENIOR LAW CLERK WHEN A VACANCY IN THAT POSITION WAS SCHEDULED TO OCCUR ON SEPTEMBER 1. THE PROMOTION WAS. DELAYED AND THE REASON GIVEN FOR SUCH DELAY WAS THE THEN CURRENT FREEZE ON THE SALARIES OF FEDERAL EMPLOYEES.
B-177149, DEC 15, 1972
CIVILIAN PERSONNEL - U.S. DISTRICT COURTS - LAW CLERKS - PROMISED PROMOTION DECISION AFFIRMING PRIOR DENIAL OF THE CLAIM OF LAWRENCE R. METSCH, FOR A SUM REPRESENTING THE DIFFERENCE BETWEEN THE SALARIES OF AN ASSOCIATE LAW CLERK, JSP-11, AND SENIOR LAW CLERK, JSP-12, FOR THE PERIOD SEPTEMBER 1 TO NOVEMBER 15, 1971. CSC BULLETIN NO. 531-51 HAS NO APPLICATION TO LAW CLERKS OF FEDERAL COURTS SINCE THEIR COMPENSATION IS FIXED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS. 28 U.S.C. 604(A)(5). MOREOVER, A FEDERAL EMPLOYEE IS ONLY ENTITLED TO THE SALARY OF THE POSITION TO WHICH HE IS OFFICIALLY APPOINTED, SEE E.G. BIELEC V. UNITED STATES, 456 F.2D 690 (1972). FINALLY, THE DECISION IN 51 COMP. GEN. 525, IS NOT CONTROLLING HERE, SINCE THE PROMOTION OF LAW CLERKS IS A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS AND IS NOT A STATUTORY RIGHT.
TO LAWRENCE R. METSCH:
THIS REFERS TO YOUR LETTER OF SEPTEMBER 21, 1972, IN WHICH YOU REQUEST RECONSIDERATION OF THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED SEPTEMBER 13, 1972, DENYING YOUR CLAIM FOR A SUM REPRESENTING THE DIFFERENCE BETWEEN THE SALARIES OF AN ASSOCIATE LAW CLERK, JSP-11, AND SENIOR LAW CLERK, JSP-12, FOR THE PERIOD SEPTEMBER 1, 1971, TO NOVEMBER 15, 1971.
AS YOUR LETTER STATES AND THE RECORD SHOWS, JUDGE BRYAN SIMPSON, THE CIRCUIT JUDGE FOR WHOM YOU CLERKED, PLANNED TO PROMOTE YOU FROM ASSOCIATE LAW CLERK TO SENIOR LAW CLERK WHEN A VACANCY IN THAT POSITION WAS SCHEDULED TO OCCUR ON SEPTEMBER 1, 1971. THE PROMOTION WAS, HOWEVER, DELAYED AND THE REASON GIVEN FOR SUCH DELAY WAS THE THEN CURRENT FREEZE ON THE SALARIES OF FEDERAL EMPLOYEES. THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SO ADVISED JUDGE SIMPSON BY LETTER OF SEPTEMBER 7, 1971.
IT IS YOUR CONTENTION THAT ISSUANCE BY THE CIVIL SERVICE COMMISSION (CSC) OF BULLETIN NO. 531-51 APPLYING PERTINENT PROVISIONS OF EXECUTIVE ORDER 11615 TO WAGES AND SALARIES REGULATED BY THE CSC HAD THE EFFECT OF MAKING YOUR RETROACTIVE PROMOTION MANDATORY. AS STATED IN YOUR CLAIM DATED JULY 6, 1972, IT IS THE FOLLOWING SUBSECTION 1.C OF THAT BULLETIN ON WHICH YOU RELY:
"C. PROMOTIONS
"PROMOTIONS TO POSITIONS OF GREATER RESPONSIBILITIES IN HIGHER GRADE OR LEVEL ARE PERMITTED UNDER THE ORDER; AND PAY ON PROMOTION WILL BE FIXED IN ACCORDANCE WITH APPLICABLE LAW AND REGULATION, INCLUDING AN AGENCY'S HIGHEST PREVIOUS RATE REGULATIONS. IN THIS CONNECTION, AGENCIES SHOULD KEEP IN MIND THE PROVISIONS OF OMB BULLETIN 72-4."
IT WAS POINTED OUT IN THE SETTLEMENT DATED SEPTEMBER 13, 1972, THAT THIS PROVISION OF THE BULLETIN WAS PERMISSIVE AND, IN ANY EVENT, DID NOT PROVIDE AUTHORITY FOR A RETROACTIVE PROMOTION.
IN ADDITION WE POINT OUT THAT, PURSUANT TO SUBSECTION 604(A)(5) OF TITLE 28, U.S.C. THE COMPENSATION OF LAW CLERKS OF FEDERAL COURTS IS FIXED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SUBJECT TO LIMITATIONS CONTAINED IN THE ANNUAL JUDICIARY APPROPRIATION ACT. (SEE TITLE IV, PUBLIC LAW 92-77, FOR THE APPROPRIATION LIMITATION FOR THE 1972 FISCAL YEAR). THE CIVIL SERVICE COMMISSION BULLETIN TO WHICH YOU REFER HAD NO APPLICATION TO LAW CLERKS APPOINTED BY CIRCUIT JUDGES WHOSE COMPENSATION IS FIXED AS STATED ABOVE.
WITH RESPECT TO YOUR CONTENTION THAT YOU WERE ENTITLED TO A PROMOTION BECAUSE A RECOMMENDATION HAD BEEN MADE FOR IT AND YOU WERE QUALIFIED FOR A HIGHER GRADE, THE RECOMMENDATION MAY NOT BE VIEWED AS AN APPOINTMENT. IS A WELL ESTABLISHED PRINCIPLE OF LAW THAT AN EMPLOYEE OF THE FEDERAL GOVERNMENT IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE HAS BEEN OFFICIALLY APPOINTED. SEE, E.G., BIELEC V. UNITED STATES, 456 F.2D 690, 696 (1972), AND CASES CITED THEREIN. YOU WERE NOT OFFICIALLY APPOINTED TO THE HIGHER POSITION UNTIL NOVEMBER 15, 1971.
YOUR REFERENCE TO A DECISION OF THE COMPTROLLER GENERAL "THAT EXECUTIVE ORDER 11615 COULD NOT VALIDLY OVERRIDE THE PROVISIONS OF TITLE 5, U.S.C. SECTION 5335" APPARENTLY REFERS TO OUR DECISION B 173976, 51 COMP. GEN. 525, FEBRUARY 23, 1972. SECTION 5335, SUPRA, GOVERNS THE AWARD OF PERIODIC STEP INCREASES TO EMPLOYEES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT OCCUPYING POSITIONS CLASSIFIED IN THE GENERAL SCHEDULE. OUR DECISION, 51 COMP. GEN. 525, SUPRA, PROVIDED THE CIVIL SERVICE COMMISSION WITH OUR INTERPRETATION OF THE APPLICABILITY OF SUBSECTION 203(C) OF THE ECONOMIC STABILIZATION ACT OF 1970 AS AMENDED BY THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 (PUBLIC LAW 92-210) TO, INTER ALIA, WITHIN-GRADE INCREASES FOR GENERAL SCHEDULE EMPLOYEES DURING THE PERIOD COVERED BY EXECUTIVE ORDER 11615. WE FAIL TO SEE HOW THAT ASPECT OF THE DECISION COULD BE HELD TO BE "BINDING AUTHORITY IN SUPPORT OF" YOUR "POSITION IN THIS MATTER" SINCE YOUR PROMOTION WAS A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND NOT A STATUTORY RIGHT.
FOR THESE REASONS WE FIND NO MERIT IN YOUR CONTENTIONS AND HEREBY AFFIRM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION.