B-148058, AUG. 14, 1962

B-148058, AUG. 14, 1962

TO MISS MYRTLE HOPPE:

ON JULY 20, 1962, YOU AGAIN REQUESTED REVIEW OF YOUR CLAIM FOR SALARY ADJUSTMENT INCIDENT TO YOUR EMPLOYMENT WITH THE POST OFFICE DEPARTMENT.

THE CLAIM WAS DISALLOWED IN DECEMBER 1961 AND HERETOFORE WE HAVE RECONSIDERED THE MATTER FOUR TIMES AT YOUR REQUEST. ON EACH OCCASION WE HAVE FAILED TO FIND SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE OFFICIAL RECORDS OF THE POST OFFICE DEPARTMENT HAVE BEEN FALSIFIED OR OTHERWISE ARE INCORRECT AS YOU CONTEND. WE HAVE FULLY ADVISED YOU OF THE REPORTS FURNISHED US BY THE AGENCY AND SHALL NOT REPEAT THEIR CONTENTS HERE. OUR DISCUSSION WILL BE CONFINED TO SUCH OF YOUR STATEMENTS AS ARE PERTINENT TO THE ISSUE AND THE EVIDENCE WHICH YOU HAVE SUBMITTED IN SUPPORT OF THEM.

YOU CONTEND THAT THE APPOINTING OFFICER WAS IN ERROR IN PLACING YOU IN STEP 4 OF YOUR GRADE AND THAT HE INTENDED TO PLACE YOU IN STEP 7. EVIDENCE THEREOF YOU REFER TO A STATEMENT APPEARING ON THE FORM 50 BY WHICH YOUR TRANSFER WAS EFFECTED, TO A CONVERSATION YOU HAD WITH THE APPOINTING OFFICER, AND TO CONVERSATIONS YOU HAD WITH MR. SMITH, THE COMPENSATION OFFICER.

THE STATEMENT ON THE FORM 50 IS AS FOLLOWS:

"HIGHEST PREVIOUS SALARY OF SUBJECT AS OF DECEMBER 2, 1959, AS CLERK- STENO (SECRETARY), GS-5, WAS $4790 P.A. WITH ORDNANCE CORPS, TWIN CITIES ARSENAL, MINNEAPOLIS, MINN. PURSUANT TO POSTAL MANUAL 753.311 (A) SUBJECT'S POD SALARY IS $4825 P.A.'

THE CITED REGULATION WHICH WE QUOTED IN FULL IN A FORMER LETTER AND WHICH YOU SAY YOU KNOW VERY WELL PROVIDES THAT AN EMPLOYEE WHO HAS HAD PRIOR CIVILIAN EMPLOYMENT WITH THE UNITED STATES GOVERNMENT "MAY (NOT SHALL OR MUST) BE ASSIGNED TO ANY HIGHER (NOT NECESSARILY THE HIGHEST) STEP IN THE SALARY LEVEL WHICH IS LESS THAN ONE FULL STEP ABOVE THE HIGHEST BASIC SALARY WHICH SUCH PERSON RECEIVED FROM THE UNITED STATES AUGMENTED BY STATUTORY PAY INCREASES RECEIVED SINCE DECEMBER 3, 1955.' AS WE HAVE STATED, WE FIND NOTHING IN THE STATEMENT ON FORM 50 WHICH INDICATES AN INTENTION TO AWARD YOU A HIGHER SALARY THAN THE $4,825 PER ANNUM RATE WHICH CLEARLY IS SET FORTH IN THE FORM. THE STATEMENT RECITES YOUR PREVIOUS HIGHEST SALARY AS OF THE DATE SHOWN, CITES THE REGULATION UNDER WHICH THE APPOINTING OFFICER WAS PERMITTED TO ESTABLISH YOUR SALARY STEP WITHIN THE SPECIFIED RANGE, AND ESTABLISHES YOUR SALARY RATE AT ONE OF THOSE STEPS.

AT THE TIME OF YOUR TRANSFER TO THE POST OFFICE DEPARTMENT YOU WERE EMPLOYED AS A CLERK-TYPIST, GS-3 WITH THE 14TH U.S. ARMY CORPS. THE FORM 50 SHOWS THAT YOUR SALARY WAS $4,390 PER ANNUM. IF THAT HAD BEEN YOUR HIGHEST PREVIOUS SALARY THE MAXIMUM RATE AT WHICH THE POST OFFICE DEPARTMENT COULD HAVE EMPLOYED YOU UNDER THE CITED REGULATION WOULD HAVE BEEN $4,505. THEREFORE, WITHOUT A SHOWING ON THE FORM 50 OF YOUR EARLIER SERVICE AT A HIGHER RATE IT WOULD HAVE CONTAINED NO JUSTIFICATION FOR ESTABLISHING YOUR SALARY AT $4,825.

REGARDING THE STATEMENT WHICH YOU SAY THE APPOINTING OFFICER MADE TO YOU AND WHICH YOU MAINTAIN CONSTITUTED AN ADMISSION OF ERROR ON HIS PART, WE FIND THAT ALTHOUGH THE STATEMENT WAS CONSIDERED BY US WE DID NOT DISCUSS IT IN OUR EARLIER LETTERS.

YOU HAVE REFERRED TO THE CONVERSATION IN AT LEAST THREE OF YOUR LETTERS. THE MOST COMPLETE ACCOUNT IS RELATED IN YOUR LETTER OF MAY 23, 1962, AS FOLLOWS:

"ABOUT A WEEK AFTER I BEGAN EMPLOYMENT WITH THE POST OFFICE DEPARTMENT IN SEPTEMBER OF 1960, I VISITED THE APPOINTING OFFICER'S OFFICE AND WE DISCUSSED THE MATTER. HE SAID IT WAS UNFORTUNATE THAT I TRANSFERRED WHEN I DID BECAUSE THIS CONFLICTED WITH THE STATUTORY INCREASE AND BEING THE STEP LEVELS WERE RAISED THIS DROPPED MY PAY STATUS TO THE STEP 4, OTHERWISE, I WOULD HAVE BEEN GIVEN THE HIGHEST STEP. NO, YOU WILL HAVE TO AGREE THAT IT WAS DUE TO HIS UNAWARENESS OF THE REGULATION, AS THE COMPENSATIONS OFFICER INFORMED ME, THAT THIS ERROR WAS MADE. FURTHERMORE, WHY DID HE SAY THIS IF HE HAD KNOWN THE REGULATION? LATER IN SEPTEMBER OF 1960, I INFORMED THE APPOINTING OFFICER THAT I INTENDED TO WRITE TO HIGHER AUTHORITY ABOUT THIS MATTER AND HE SAID IT WAS ALL RIGHT TO DO SO. HE DID NOT SAY THAT HE DID NOT INTEND TO GIVE ME THE HIGHEST STEP OF MY GRADE. HE TALKED ABOUT THE SALARY STEP AS AFFECTED BY THE STATUTORY INCREASE.'

WE FIND NOTHING IN THE APPOINTING OFFICER'S STATEMENTS WHICH INDICATES THAT HE WAS NOT AWARE OF THE REGULATIONS OR THAT HE INTENDED TO PLACE YOU IN STEP 7 (TOP) OF THE GRADE. ON THE CONTRARY, WE VIEW THEM AS SUPPORTING THE AGENCY'S POSITION THAT THE OFFER OF EMPLOYMENT WAS MADE TO YOU ON THE BASIS OF MATCHING YOUR HIGHEST PREVIOUS SALARY OF $4,790. PRIOR TO THE STATUTORY PAY INCREASES OF JULY 1961 THE PER ANNUM RATES AND STEPS FOR PFS -4 WERE AS FOLLOWS:

TABLE

1 2 3 4 5 6 7

$3,935 $4,070 $4,205 $4,340 $4,475 $4,610 $4,745

IF YOU HAD TRANSFERRED TO THE POST OFFICE DEPARTMENT WHEN THESE RATES WERE IN EFFECT THE APPOINTING OFFICER WOULD HAVE HAD TO PLACE YOU IN STEP 7 ($4,745) IN ORDER TO APPROXIMATE YOUR PREVIOUS HIGHEST SALARY AND SUBSEQUENTLY YOU WOULD HAVE RECEIVED THE INCREASE GRANTED FOR THAT STEP.

HOWEVER, UNDER PUBLIC LAW 86-568, JULY 1, 1960, 74 STAT. 296, THE PER ANNUM RATES WERE INCREASED TO:

TABLE

1 2 3 4 5 6 7

$4,345 $4,505 $4,665 $4,825 $4,985 $5,145 $5,305

THEREFORE, AT THE TIME OF YOUR TRANSFER THE SALARY FOR STEP 4 ($4,825) WAS IN EXCESS OF YOUR PREVIOUS HIGHEST SALARY AND THE OFFER WAS MADE AT THAT RATE. THUS, THE EXPLANATION OF THE APPOINTING OFFICER AS REPORTED BY YOU INDICATES THAT HE INTENDED ONLY TO MATCH YOUR PREVIOUS HIGHEST RATE AS CLOSELY AS THE ESTABLISHED SALARY SCALES PERMITTED. FURTHERMORE, YOUR UNDERSTANDING OF THE MATTER WAS INDICATED IN YOUR LETTER WRITTEN A FEW DAYS LATER (SEPTEMBER 14) TO THE U.S. CIVIL SERVICE COMMISSION IN WHICH YOU REQUESTED REVIEW OF THE ACTION. IN THAT LETTER YOU SAID:

"NOW, WHEN I TRANSFERRED TO THE REGIONAL POST OFFICE DEPARTMENT TO A CLERK-STENOGRAPHER, PFS-4 POSITION, I WAS PLACED IN STEP 4 AT $4825.00 PER ANNUM TO MATCH MY HIGHEST PREVIOUS SALARY WHICH WAS$4790.00 AS STATED ABOVE. IF I HAD TRANSFERRED PRIOR TO THE NEW PAY RAISE I WOULD HAVE BEEN PLACED IN THE TOP STEP OF THE PFS-4, $5305.00 PER ANNUM, BUT BECAUSE OF THE HIGHER PAY SCALE OF POSTAL EMPLOYEES AND BECAUSE THE NEW PAY RAISE WAS IN EFFECT AT THE TIME OF MY TRANSFER, THIS DROPPED ME TO STEP 4 OF PFS-4. I DO NOT THINK THIS IS FAIR AND IT IS A LOSS TO ME OF $480.00 PER YEAR. MAINTAIN A HOUSEHOLD AND FEEL I AM ENTITLED TO THIS ADDITIONAL PAY. THIS THE WAY THE REGULATION READS, IT SHOULD BE AMENDED TO PROTECT THE GRADE AND SALARY OF AN INDIVIDUAL WHO HAS HELD A HIGHER GRADE.

"THIS SITUATION HAS COME ABOUT THROUGH NO FAULT OF MY OWN AND I AM BRINGING IT TO YOUR ATTENTION IN THE HOPE THAT I WILL BE PLACED IN THE TOP STEP OF PFS-4, WHICH IS $5305.00 PER ANNUM. I HAVE TALKED WITH THE LOCAL U.S. CIVIL SERVICE COMMISSION OFFICE AND ALSO WITH OUR PERSONNEL OFFICER HERE AT THE REGIONAL POST OFFICE. I HAVE BEEN INFORMED THAT PAY CANNOT BE MADE RETROACTIVE. IS THIS TRUE? I DO INSIST THAT I BE GIVEN STEP 7 OF GRADE PFS-4, $5305.00 PER NUM.'

YOU HAVE REPEATEDLY REFERRED TO A STATEMENT MADE TO YOU BY THE COMPENSATION OFFICER (MR. SMITH) AND REQUESTED THAT WE OBTAIN A REPORT FROM HIM ON THE MATTER AS WELL AS OBTAIN A LETTER WHICH YOU SAY HE PREPARED ON YOUR BEHALF BUT DID NOT RELEASE. CONCERNING THIS STATEMENT WE QUOTE THE FOLLOWING PARAGRAPH FROM YOUR LETTER OF JANUARY 19, 1962:

"WHY DID THE COMPENSATION OFFICER CALL ME TO HIS OFFICE AND STATE THAT THE APPOINTING OFFICER MUST NOT HAVE BEEN AWARE OF THE NEW REGULATION COVERING STATUTORY INCREASES AND THAT HAD HE (COMPENSATION OFFICER) BEEN IN THE OFFICE WHEN MY DOCUMENTS WERE PROCESSED HE WOULD HAVE CAUGHT THIS ERROR?

FROM THIS STATEMENT IT APPEARS THAT MR. SMITH'S KNOWLEDGE OF THE MATTER WAS ACQUIRED AFTER YOUR APPOINTMENT HAD BEEN PROCESSED AND SINCE THE APPOINTING OFFICER HAD NOT GIVEN YOU THE HIGHEST STEP PERMISSIBLE UNDER THE NEW REGULATION HE (MR. SMITH) ASSUMED THAT THE APPOINTING OFFICER WAS UNAWARE OF IT. MR. SMITH EXPLAINED THIS TO YOU IN HIS LETTER OF MAY 28, 1962, OF WHICH WE HAVE A COPY AND FROM WHICH WE QUOTE AS FOLLOWS:

"YOU WILL RECALL THAT YOU WERE UNHAPPY WITH YOUR STARTING SALARY AND DISCUSSED WITH ME THE APPLICABLE POST OFFICE DEPARTMENT COMPENSATION REGULATIONS. AT THAT TIME, I INFORMED YOU THAT PART 753.3 OF THE POSTAL MANUAL PROVIDED FOR PRIOR FEDERAL EMPLOYEES BEING APPOINTED AT A STEP ABOVE STEP 1 OF THEIR SALARY LEVEL, IN CONSIDERATION OF THEIR HIGHEST PREVIOUS SALARY, INCLUDING STATUTORY INCREASES.

"AFTER TALKING TO YOU, I PREPARED A DRAFT OF A LETTER TO BE SENT TO THE DEPARTMENT IN WASHINGTON, D.C., RAISING THE QUESTION OF A RETROACTIVE ADJUSTMENT IN YOUR STARTING SALARY. I WAS ADVISED BY THE REGIONAL PERSONNEL MANAGER AT THAT TIME THAT THE FINAL OFFER OF EMPLOYMENT WAS MADE TO YOU AS A CLERK-STENOGRAPHER, PFS-4, STEP 4, $4825 PER ANNUM, AND THAT YOU HAD ACCEPTED THIS OFFER AS MADE. SINCE HE HAD THE DISCRETION TO ESTABLISH THE STARTING SALARY AND HE CONSIDERED THE TRANSACTION TO BE PROPER AND WITHIN THE POST OFFICE DEPARTMENT REGULATIONS, MY LETTER WAS NEVER SENT TO THE DEPARTMENT.'

TO SUMMARIZE, WE VIEW THE REFERENCE TO YOUR PREVIOUS HIGHEST SALARY OF $4,790 ON THE FORM 50 AS SERVING ONLY TO SHOW THAT YOUR NEW SALARY WAS BASED THEREON RATHER THAN THE SALARY ($4,330) SHOWN ELSEWHERE ON THE FORM AS THAT YOU WERE RECEIVING AT THE TIME OF THE TRANSFER, AND WE VIEW THE CITATION TO REGULATION AS SHOWING THE OFFICER'S AUTHORITY THEREFOR. THE STATEMENTS OF THE APPOINTING OFFICER APPEARS TO NEGATE RATHER THAN SUPPORT YOUR CONTENTION THAT HE INTENDED TO GIVE YOU THE TOP STEP OF THE GRADE, AND THE COMPENSATION OFFICER HIMSELF HAS INFORMED YOU THAT UPON DISCUSSING THE MATTER WITH THE OFFICER WHO HAD THE DISCRETION TO ESTABLISH THE STARTING SALARY HE WAS ADVISED THAT THE MATTER WAS PROPER AND WITHIN THE REGULATIONS. THUS, ASIDE FROM THE REPORTS BASED UPON THE RECORDS OF THE POST OFFICE DEPARTMENT WHICH YOU CLAIM ARE INCORRECT IT APPEARS THAT YOUR CONTENTIONS HAVE NOT BEEN ESTABLISHED BY THE INFORMATION WHICH YOU HAVE OFFERED IN SUPPORT OF THEM. THEREFORE, WE FIND NO BASIS FOR CHANGING OUR POSITION IN THE MATTER.

REGARDING FURTHER APPEAL, OUR DECISIONS ARE BINDING UPON THE EXECUTIVE AGENCIES OF THE GOVERNMENT BUT NOT UPON THE COURTS. AS TO MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED STATES COURT OF CLAIMS SEE 28 U.S.C. 13456; ID. 1491.