A-55877, JUNE 29, 1934, 13 COMP. GEN. 480

A-55877: Jun 29, 1934

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INCLUDING EMPLOYEES OF THE CUSTOMS SERVICE WHOSE SALARY RATES ARE SUBJECT TO THE TERMS OF THE ACT OF MAY 29. ID. 399 ARE RENDERED INOPERATIVE. THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED: "/C) CLERKS. READS AS FOLLOWS: "ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30. ARE CONTINUED IN FULL FORCE AND EFFECT FOR THE FISCAL YEAR ENDING JUNE 30. AUTOMATIC PROMOTIONS FOR CLERKS IN THE CUSTOMS SERVICE HAVE BEEN SUSPENDED SINCE THE CLOSE OF BUSINESS ON JUNE 30.

A-55877, JUNE 29, 1934, 13 COMP. GEN. 480

COMPENSATION - RESTORATION OF AUTOMATIC PROMOTIONS - CUSTOMS SERVICE IN VIEW OF THE PROVISIONS OF THE ACT OF JUNE 27, 1934, 48 STAT. 1265, ALL OFFICERS AND EMPLOYEES OF THE GOVERNMENT ENTITLED TO AUTOMATIC INCREASES IN COMPENSATION, INCLUDING EMPLOYEES OF THE CUSTOMS SERVICE WHOSE SALARY RATES ARE SUBJECT TO THE TERMS OF THE ACT OF MAY 29, 1928, 45 STAT. 955, MAY BE CREDITED WITH SERVICES PERFORMED DURING THE FISCAL YEARS 1933 AND 1934 IN DETERMINING BOTH THE AMOUNT AND EFFECTIVE DATE OF AUTOMATIC INCREASES ON AND AFTER JULY 1, 1934, AND DURING THE FISCAL YEAR 1935 PURSUANT TO THE TERMS OF SUBPARAGRAPH (1), SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 523. 13 COMP. GEN. 384; ID. 399 ARE RENDERED INOPERATIVE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JUNE 29, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 24, 1934, AS FOLLOWS:

SECTION 1 OF THE BACHARACH ACT APPROVED MAY 29, 1928 (45 STAT. 955), READS IN PART AS FOLLOWS:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED:

"/C) CLERKS, ENTRANCE SALARY, $1,700; CLERKS HAVING ONE YEAR'S SATISFACTORY SERVICE, $1,800; CLERKS HAVING TWO YEARS' SATISFACTORY SERVICE, $1,900; CLERKS HAVING THREE YEARS' SATISFACTORY SERVICE, $2,000; CLERKS HAVING FOUR YEARS' SATISFACTORY SERVICE, $2,100; THEREAFTER PROMOTION OF CLERKS TO HIGHER RATES OF COMPENSATION SHALL BE IN ACCORDANCE WITH EXISTING LAW.'

SECTION 201, TITLE II, PART II, OF THE ACT OF CONGRESS APPROVED JUNE 30, 1932, MAKING APPROPRIATIONS FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1933; AND FOR OTHER PURPOSES, READS AS FOLLOWS:

"ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.'

THE PROVISIONS OF SECTION 201, REFERRED TO ABOVE, ARE CONTINUED IN FULL FORCE AND EFFECT FOR THE FISCAL YEAR ENDING JUNE 30, 1934, BY SECTION 4 (A), TITLE II, OF THE ACT OF CONGRESS APPROVED MARCH 3, 1933, MAKING APPROPRIATIONS FOR THE TREASURY AND POST OFFICE DEPARTMENTS FOR THE FISCAL YEAR ENDING JUNE 30, 1934, AND FOR OTHER PURPOSES.

UNDER THE PROHIBITION CONTAINED IN SECTION 201 OF THE ACT OF JUNE 30, 1932, AND CONTINUED IN THE ACT OF MARCH 3, 1933, AUTOMATIC PROMOTIONS FOR CLERKS IN THE CUSTOMS SERVICE HAVE BEEN SUSPENDED SINCE THE CLOSE OF BUSINESS ON JUNE 30, 1932.

SECTION 24, TITLE II, OF THE ACT OF CONGRESS DATED MARCH 28, 1934, KNOWN AS THE "INDEPENDENT OFFICES APPROPRIATION ACT, 1935," PROVIDES FOR THE CONTINUANCE IN FULL FORCE DURING THE FISCAL YEAR 1935 OF THE ABOVE-QUOTED SECTION 201 AND FOR THE INSERTION AT THE END THEREOF OF THE FOLLOWING AMENDMENT:

"THIS SECTION SHALL NOT APPLY DURING THE FISCAL YEAR ENDING JUNE 30, 1935, EXCEPT TO THE EXTENT THAT IT SUSPENDS THE LONGEVITY INCREASES PROVIDED FOR IN THE TENTH PARAGRAPH OF SECTION 1 OF THE PAY ADJUSTMENT ACT OF 1922. THIS AMENDMENT SHALL NOT AUTHORIZE THE PAYMENT OF BACK MPENSATION.'

ON JULY 7, 1930, LEO M. ACKLEY, AN EMPLOYEE IN THE CUSTOMS COLLECTION DISTRICT OF LOS ANGELES, CALIFORNIA, WAS TRANSFERRED FROM VERIFIER OPENER- PACKER TO CLERK AT $1,700 PER ANNUM; AND EFFECTIVE JULY 7, 1931, HIS SALARY WAS INCREASED FROM $1,700 TO $1,800 UPON THE COMPLETION OF ONE YEAR OF CONTINUOUS SATISFACTORY CLERICAL SERVICE. AT THE CLOSE OF BUSINESS OF JULY 6, 1932, MR. ACKLEY COMPLETED TWO YEARS OF CONTINUOUS SATISFACTORY CLERICAL SERVICE; AND AT THE CLOSE OF BUSINESS ON JULY 6, 1933, HE COMPLETED THREE YEARS OF CONTINUOUS SATISFACTORY CLERICAL SERVICE, BUT WAS NOT GIVEN AN AUTOMATIC INCREASE OF $100, EFFECTIVE JULY 7, 1932, OR AN INCREASE OF $100 EFFECTIVE JULY 7, 1933, DUE TO THE PROHIBITION AGAINST AUTOMATIC INCREASES DURING THE FISCAL YEARS 1933 AND 1934 CONTAINED IN THE ECONOMY LEGISLATION REFERRED TO HEREIN.

ON MAY 5, 1930, JOHN LYONS, AN EMPLOYEE IN THE CUSTOMS COLLECTION DISTRICT OF SAN FRANCISCO, CALIFORNIA, WAS TRANSFERRED FROM VERIFIER OPENER-PACKER TO CLERK AT $1,700 PER ANNUM; EFFECTIVE MAY 5, 1931, HIS SALARY WAS INCREASED FROM $1,700 TO $1,800 UPON THE COMPLETION OF ONE YEAR OF CONTINUOUS SATISFACTORY CLERICAL SERVICE; AND EFFECTIVE MAY 5, 1932, HIS SALARY WAS INCREASED FROM $1,800 TO $1,900 UPON THE COMPLETION OF TWO YEARS OF CONTINUOUS SATISFACTORY CLERICAL SERVICE. AT THE CLOSE OF BUSINESS ON MAY 4, 1933, HE COMPLETED THREE YEARS OF CONTINUOUS SATISFACTORY CLERICAL SERVICE; AND AT THE CLOSE OF BUSINESS ON MAY 4, 1934, HE COMPLETED FOUR YEARS OF CONTINUOUS SATISFACTORY CLERICAL SERVICE, BUT WAS NOT GIVEN AN AUTOMATIC INCREASE OF $100, EFFECTIVE MAY 5, 1933, OR AN INCREASE OF $100, EFFECTIVE MAY 5, 1934, DUE TO THE PROHIBITION AGAINST AUTOMATIC INCREASES DURING THE FISCAL YEARS 1933 AND 1934, CONTAINED IN THE ECONOMY LEGISLATION REFERRED TO HEREIN. HAD THE INCREASES IN 1933 AND 1934, ABOVE REFERRED TO, NOT BEEN PROHIBITED MR. LYONS ON MAY 5, 1934, WOULD HAVE REACHED A SALARY OF $2,100 PER ANNUM, THE MAXIMUM PROVIDED BY THE BACHARACH ACT FOR CLERKS.

IT IS ASSUMED THAT THE PROHIBITION AGAINST PAYMENT OF BACK COMPENSATION CONTAINED IN SECTION 24, TITLE II, OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, REFERS ONLY TO MAKING AUTOMATIC INCREASES EFFECTIVE ON DATES OCCURRING BETWEEN THE CLOSE OF BUSINESS ON JUNE 30, 1932, AND JULY 1, 1934, THAT IS, MAKING AUTOMATIC INCREASES RETROACTIVE TO THE DATES OF THE COMPLETION OF ONE, TWO, THREE, OR FOUR YEARS' SERVICE.

THE CASES OF MESSRS. ACKLEY AND LYONS ARE SIMILAR TO MANY OTHERS IN THE CUSTOMS SERVICE GOVERNED BY THE SAME PRINCIPLES. THEREFORE, THIS DEPARTMENT WILL APPRECIATE AN EXPRESSION OF YOUR VIEWS ON THE FOLLOWING QUESTIONS:

(A) UNDER THE PROVISIONS OF THE BACHARACH ACT, QUOTED ABOVE, IN CONJUNCTION WITH THE PROVISIONS OF SECTION 24, TITLE II, OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, ABOVE REFERRED TO, IS THERE AUTHORITY FOR AN INCREASE IN MR. ACKLEY'S SALARY IN THE AMOUNT OF $200, EFFECTIVE JULY 1, 1934, IN ADDITION TO THE $100 INCREASE TO WHICH HE WILL BE ENTITLED UPON THE COMPLETION OF FOUR YEARS OF CONTINUOUS SATISFACTORY CLERICAL SERVICE AT THE CLOSE OF BUSINESS JULY 6, 1934?

(B) UNDER THE PROVISIONS OF THE BACHARACH ACT, QUOTED ABOVE, IN CONJUNCTION WITH THE PROVISIONS OF SECTION 24, TITLE II, OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, ABOVE REFERRED TO, IS THERE AUTHORITY FOR AN INCREASE IN MR. LYONS' SALARY IN THE AMOUNT OF $200, EFFECTIVE JULY 1, 1934?

(C) IF IT IS HELD THAT MESSRS. ACKLEY AND LYONS CANNOT BE GIVEN INCREASES IN THE AMOUNT OF $200 PER ANNUM EACH, EFFECTIVE JULY 1, 1934, WHEN CAN THEY BE GIVEN AUTOMATIC INCREASES AND IN WHAT AMOUNT?

IN DECISION OF MAY 24, 1934, A-55507, 13 COMP. GEN. 384, TO THE POSTMASTER GENERAL, IT WAS HELD AS FOLLOWS:

IT IS TO BE NOTED THAT SECTION 201 OF THE ECONOMY ACT COMPLETELY SUSPENDED THE OPERATION OF ALL FEDERAL STATUTES AUTHORIZING AUTOMATIC INCREASES IN COMPENSATION. CONSEQUENTLY, ALL SUCH STATUTES MUST NECESSARILY BE REGARDED AS NOT HAVING BEEN IN EXISTENCE DURING THE PERIOD JULY 1, 1932, TO JUNE 30, 1934, INCLUSIVE. HENCE, NOT ONLY WAS THE GRANTING OF THE AUTOMATIC INCREASE IN COMPENSATION PROHIBITED BUT ALSO NO SERVICE DURING THAT PERIOD MAY BE INCLUDED IN COMPUTING LONGEVITY TO DETERMINE EITHER THE AMOUNT OR THE EFFECTIVE DATE OF AN AUTOMATIC INCREASE IN COMPENSATION, AS BOTH WOULD NECESSARILY BE BASED UPON A STATUTE NOT OPERATIVE DURING SUCH PERIOD. IT NECESSARILY FOLLOWS THERE MAY BE INCLUDED FOR THE PURPOSES OF SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, ONLY PERIODS OF SERVICE PRIOR TO JULY 1, 1932, AND ON AND AFTER JULY 1, 1934, DURING THE FISCAL YEAR 1935. SEE THE DECISIONS CONSIDERING THE APPLICATION OF SECTION 103 OF THE ECONOMY ACT, PURSUANT TO WHICH THE RIGHT TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY WAS "SUSPENDED" DURING THE PERIOD JUNE 30, 1932, TO AND INCLUDING MARCH 31, 1933, HOLDING THAT NO LEAVE ACCRUED DURING THE PERIOD THE ACT WAS IN EFFECT (12 COMP. GEN. 575; ID. 601; ID. 609, 613; ID. 621). AND WITH RESPECT TO THE PARTICULAR STATUTE HERE INVOLVED, IT IS TO BE NOTED ALSO THAT PROMOTIONS FROM GRADE TO GRADE ARE SPECIFICALLY RESTRICTED TO "THE NEXT HIGHER GRADE," THUS PROHIBITING THE SKIPPING OF ONE OR MORE GRADES IN ANY CIRCUMSTANCES.

SEE ALSO DECISION OF MAY 31, 1934, A-55654, 13 COMP. GEN. 399, TO THE SECRETARY OF STATE, INVOLVING FOREIGN SERVICE OFFICERS.

HOWEVER, THE SUBSEQUENT ACT OF JUNE 27, 1934, 48 STAT. 1265, PROVIDES AS FOLLOWS:

THAT IN THE ADMINISTRATION OF THE PROVISION OF SUBPARAGRAPH (1) OF SECTION 24 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, AMENDING SECTION 201 OF PART II OF THE LEGISLATIVE APPROPRIATION ACT FOR THE FISCAL YEAR 1933, ALL SERVICE RENDERED BY POSTAL AND OTHER OFFICERS AND EMPLOYEES PRIOR TO JULY 1, 1932, AND SUBSEQUENT TO JUNE 30, 1932, SHALL BE CREDITED TO THE OFFICERS OR EMPLOYEES AND SUCH OFFICERS OR EMPLOYEES PROMOTED TO THE GRADE TO WHICH THEY WOULD HAVE PROGRESSED HAD SECTION 201 (SUSPENDING AUTOMATIC INCREASES IN COMPENSATION) OF PART II OF THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1933, NOT BEEN ENACTED.

IN VIEW OF THIS LEGISLATION, ENACTED SUBSEQUENT TO THE DECISIONS OF MAY 24, 1934, A-55507, TO THE POSTMASTER GENERAL, 13 COMP. GEN. 384, AND MAY 31, 1934, A-55654, TO THE SECRETARY OF STATE, 13 COMP. GEN. 399, QUESTIONS (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE.