B-116723, FEB. 6, 1957

B-116723, FEB. 6, 1957

TO THE SECRETARY OF LABOR:

YOUR LETTER OF JANUARY 12, 1957, REQUESTS RECONSIDERATION OF OUR DECISION, OF SEPTEMBER 11, 1953, B-116723, AND, ALSO, A DECISION REGARDING YOUR PRESENT AUTHORITY TO APPLY THE HIGHEST PREVIOUS SALARY RATE RULE TO REAPPOINTMENTS OF TEMPORARY EMPLOYEES ON MEXICAN FARM LABOR PROGRAM WHERE THEIR SERVICES ARE CONTINUOUS.

OUR DECISION OF SEPTEMBER 11, 1953, CONSIDERED THE CASE OF AN EMPLOYEE'S CONTINUOUS SERVICE UNDER A SERIES OF TEMPORARY APPOINTMENTS EFFECTIVE JUNE 11, AUGUST 8, AND SEPTEMBER 8, 1951, IN GRADE GS-5, UNDER WHICH HIS SALARY WAS INITIALLY FIXED AT A RATE OF $3,475 PER ANNUM BASED ON THE RECEIPT OF A PRIOR SALARY RATE OF $3,450 IN THE DEPARTMENT OF THE ARMY. THE LAST TEMPORARY APPOINTMENT EXPIRED OCTOBER 22, 1951. ON OCTOBER 23, 1951, THE EMPLOYEE WAS GIVEN AN INDEFINITE APPOINTMENT IN LIEU OF REINSTATEMENT AND HIS SALARY RATE WAS CHANGED TO $3,910 PER ANNUM. PREVIOUS PERSONNEL ACTIONS BEGINNING WITH THE TEMPORARY APPOINTMENT OF AUGUST 8, 1951, WERE CHANGED TO SHOW THE INCREASED SALARY RATE. HE WAS GIVEN A PERIODIC INCREASE TO $4,035 ON JUNE 11, 1952. BASED ON THOSE FACTS AND UPON THE STATUTORY PROVISION IN SECTION (B) (1) OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 612, REQUIRING ANY ADJUSTMENT BY THAT ACT TO BE BASED ON THE BASIC COMPENSATION OF WHICH THE EMPLOYEE WAS IN RECEIPT IMMEDIATELY PRECEEDING THE EFFECTIVE DATE OF THAT ACT (JULY 8, 1951), WE HELD THAT HIS PROPER RATE OF COMPENSATION CONTINUED TO BE $3,475, PER ANNUM THROUGHOUT ALL OF THE TEMPORARY APPOINTMENTS UNTIL CHANGED BY THE ACT OF OCTOBER 24, 1951, EFFECTIVE JULY 8, 1951, TO $3,785, AND THAT HE WAS NOT ENTITLED TO THE RATE OF $3,910 UNTIL THE BEGINNING OF THE FIRST PAY PERIOD AFTER JUNE 11, 1952.

THAT DECISION APPEARS TO HAVE BEEN CORRECT UNDER THE FACTS AND LAW THEN CONTROLLING. HOWEVER THAT MAY BE, IT IS A WELL-ESTABLISHED RULE OF LAW THAT A SUCCESSOR IN OFFICE MAY NOT REOPEN A SETTLEMENT TO CORRECT AN ERROR OF LAW BY HIS PREDECESSOR. SEE UNITED STATES V. BANK OF METROPOLIS, 15 PETERS 401, AND OTHER AUTHORITIES CITED IN 1 COMP. GEN. 548; 16 ID. 51 AND 118; 17 ID. 516. ACCORDINGLY WE MAY NOT REVIEW THE DECISION OF THE FORMER COMPTROLLER GENERAL REGARDING THE CASE OF THE PARTICULAR EMPLOYEE THEREIN CONSIDERED.

IN YOUR REQUEST FOR DECISION WHETHER YOU MAY CURRENTLY APPLY THE AUTHORIZED PREVIOUS SALARY RULE TO APPOINTMENTS OF A TEMPORARY NATURE, YOU CALL ATTENTION TO THE SECOND PARAGRAPH OF SECTION 25.103 (B) (1) OF THE CIVIL SERVICE REGULATIONS WHICH PROVIDES:

"AN EMPLOYEE WHOSE TYPE OF APPOINTMENT IS CHANGED IN THE SAME POSITION MAY CONTINUE TO BE PAID AT HIS EXISTING RATE OR MAY BE PAID AT ANY HIGHER SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; AND IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO SCHEDULED RATES OF THE GRADE, HE MAY BE GIVEN THE HIGHER RATE.'

THIS PARAGRAPH OF THE CIVIL SERVICE REGULATIONS WAS NOT IN THE REGULATIONS AT THE TIME THE DECISION OF SEPTEMBER 11, 1953, WAS RENDERED, HAVING BEEN INSERTED IN JULY 1955. THIS PARAGRAPH AUTHORIZES THE APPLICATION OF THE HIGHEST PREVIOUS SALARY RULE AT ANY TIME A CHANGE IS MADE IN THE EMPLOYEE'S APPOINTMENT REGARDLESS OF WHETHER HIS SERVICE HAS BEEN CONTINUOUS. THE QUOTED REGULATION READ IN CONNECTION WITH THE FIRST PARAGRAPH OF SECTION 25.103 (B) (1) WOULD APPEAR TO REMOVE ANY OBJECTION TO THE APPLICATION OF THE HIGHEST PREVIOUS SALARY RULE UPON ANY TEMPORARY APPOINTMENT OF AN EMPLOYEE NOTWITHSTANDING THAT THERE HAS BEEN NO BREAK IN HIS SERVICE BETWEEN THE TEMPORARY APPOINTMENTS. THE REGULATIONS, OF COURSE, MAY NOT BE APPLIED RETROACTIVELY TO ADJUST ANY RATE UNDER A CURRENT APPOINTMENT.