B-156092, FEB. 26, 1965

B-156092, FEB. 26, 1965

TO MR. JIM C. THAXTON:

THIS REFERS TO LETTER OF JANUARY 27, 1965, FROM MR. FAIRES P. WADE, ATTORNEY AT LAW, WRITTEN IN YOUR BEHALF REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF SEPTEMBER 16, 1964, WHICH DISALLOWED YOUR CLAIM FOR A LONGEVITY STEP INCREASE EFFECTIVE ON OR ABOUT SEPTEMBER 1960, WHILE EMPLOYED AS AN IMMIGRANT INSPECTOR, DEPARTMENT OF JUSTICE.

A CHRONOLOGY OF YOUR SERVICE IS SET FORTH IN THE DISALLOWANCE SETTLEMENT OF SEPTEMBER 16, 1964, AND NEED NOT BE REPEATED HERE IN DETAIL. BRIEFLY, IT APPEARS THAT FOR SOME YEARS PRIOR TO JANUARY 26, 1953, YOU OCCUPIED THE POSITION OF PATROL INSPECTOR, GRADE CAF-7 (OR GS-7 AS NOW CALLED). ON THE DATE (JANUARY 26, 1953) YOU WERE REASSIGNED TO THE POSITION OF IMMIGRANT INSPECTOR, GRADE GS-7, WHICH SUBSEQUENTLY ON AUGUST 30, 1953, WAS RECLASSIFIED TO GRADE GS-9 AND YOU WERE PLACED IN STEP 3 (ALSO REFERRED TO AS STEP "C") OF THAT GRADE. THEREAFTER, YOU PROGRESSED ONE STEP IN THAT GRADE EACH YEAR UNTIL YOU REACHED THE MAXIMUM SCHEDULED STEP THEREOF, THAT IS, STEP 7 OR STEP "G," WHICH APPARENTLY OCCURRED ON OR ABOUT AUGUST 30, 1957. AT THAT POINT THE ONLY AUTHORITY FOR GRANTING YOU ANY FURTHER INCREASES IN GRADE GS-9 WAS THAT CONTAINED IN SECTION 703 (B) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, 968, 5 U.S.C. 1123 (B) (SINCE ELIMINATED BY ACT OF OCTOBER 11, 1962), WHICH PROVIDED FOR THE GRANTING OF THREE ADDITIONAL INCREASES, CALLED LONGEVITY INCREASES, TO EMPLOYEES FOR EACH THREE YEARS OF CONTINUOUS SERVICE IN THE MAXIMUM SCHEDULED STEP OF HIS GRADE OR AT ONE OF THE LONGEVITY STEPS AS THE CASE MIGHT BE. CERTAIN OTHER CONDITIONS WERE SPECIFIED IN THE STATUTE, ONE OF WHICH WAS AS FOLLOWS:

"/6) THE OFFICER OR EMPLOYEE SHALL HAVE HAD, IN THE AGGREGATE, NOT LESS THAN TEN YEARS OF SERVICE IN THE POSITION WHICH HE THEN OCCUPIES, OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE.'

WHILE YOU APPARENTLY COMPLETED THE THREE YEARS OF CONTINUOUS SERVICE ON OR ABOUT AUGUST 30, 1960, THE DEPARTMENT DID NOT GRANT YOU A LONGEVITY INCREASE AT THAT TIME ON THE BASIS THAT YOU WOULD NOT SATISFY THE REQUIREMENT OF THE 10 YEARS OF SERVICE IN THE POSITION THEN OCCUPIED, PLUS SERVICE IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE, UNTIL JANUARY 26, 1963. IN ARRIVING AT THAT DATE THE ADMINISTRATIVE OFFICE ALLOWED YOU CREDIT FOR SERVICE FROM JANUARY 26, 1953, THE DATE YOU WERE FIRST ASSIGNED TO THE POSITION OF IMMIGRANT INSPECTOR. THAT ACTION WAS PREDICATED ON OUR DECISION IN 33 COMP. GEN. 362, WHICH HELD THAT SERVICE IN A POSITION PRIOR TO RECLASSIFICATION TO A HIGHER GRADE (WITHOUT MATERIAL CHANGE IN DUTIES) MAY BE COUNTED TOWARD THE 10-YEAR PERIOD FOR A LONGEVITY INCREASE BECAUSE IT CONSTITUTES SERVICE IN AN EQUIVALENT CLASS OR GRADE.

IT IS YOUR CONTENTION THAT IN ADDITION TO CREDIT FOR THE SERVICE AS AN IMMIGRANT INSPECTOR, WHEN THAT POSITION WAS CLASSIFIED AS GRADE GS 7 BETWEEN JANUARY 26, 1953, AND AUGUST 30, 1953, YOU ALSO ARE ENTITLED TO CREDIT FOR THE ENTIRE PERIOD OF YOUR SERVICE IN THE POSITION OF PATROL INSPECTOR, GRADE GS-7. ON THAT BASIS THE 10-YEAR REQUIREMENT WOULD HAVE BEEN SATISFIED BEFORE YOU OTHERWISE COMPLETED THE OTHER REQUIREMENT OF THREE YEARS OF CONTINUOUS SERVICE AT THE MAXIMUM SCHEDULE STEP OF GRADE GS -9 ON AUGUST 30, 1960.

THE RULE EXPRESSED IN OUR DECISION IN 33 COMP. GEN. 362, WHICH IN THE INSTANT CASE PERMITS CREDIT OF SERVICE IN THE IMMIGRANT INSPECTOR POSITION EVEN WHEN IT WAS CLASSIFIED AS GRADE 7, IS PREDICATED ON THE FACT THAT WHEN A POSITION IS RECLASSIFIED WITHOUT ANY MATERIAL CHANGE IN DUTIES IT REMAINS ESSENTIALLY THE SAME POSITION AND MAY BE REGARDED AS A POSITION OF EQUIVALENT CLASS OR GRADE WITHIN THE MEANING OF THE STATUTE. HOWEVER, WE DO NOT BELIEVE THE WORDING OF THE STATUTE IS SUCH TO PERMIT US TO EXTEND OUR RULING TO PERMIT CREDIT OF SERVICE IN A DIFFERENT POSITION WHICH IS CLASSIFIED IN A LOWER GRADE THAN THE GRADE OCCUPIED (GS-9). THE RECLASSIFICATION OF THE POSITION OF PATROL INSPECTOR FROM GRADE GS-7 TO GS -8 AT OR ABOUT THE SAME TIME THE POSITION OF IMMIGRANT INSPECTOR WAS RECLASSIFIED TO GRADE GS-9 IS INDICATIVE OF THE FACT THAT THE POSITIONS WERE NOT OF AN EQUIVALENT CLASS OR GRADE. THEREFORE, OUR SETTLEMENT OF SEPTEMBER 16, 1964, DISALLOWING YOUR CLAIM MUST BE SUSTAINED.

IN RESPONSE TO THE INQUIRY CONCERNING AN APPEAL OF A DECISION OF OUR OFFICE YOU ARE ADVISED THAT THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO PROCEDURE PRESCRIBED FOR APPEALING FROM OUR DECISIONS AS SUCH. HOWEVER, YOUR ATTENTION IS CALLED TO THE PROVISIONS OF 28 U.S.C. 1346; ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED STATES COURT OF CLAIMS.