B-126725, MAR. 12, 1956

B-126725: Mar 12, 1956

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THEREAFTER YOU WERE APPOINTED TO A POSITION WITH THE DEPARTMENT OF THE ARMY. YOUR SALARY WAS FIXED AT $8. 360 PER ANNUM WHICH AT THAT TIME WAS THE MINIMUM SALARY RATE OF GRADE GS-13. YOUR CLAIM WAS PREDICATED UPON THE ARGUMENT THAT YOU WERE ENTITLED TO THE MAXIMUM SALARY RATE OF GRADE GS-13 BECAUSE OF YOUR PRIOR SERVICE AT A HIGHER RATE. WAS DISALLOWED BY OUR SETTLEMENT OF DECEMBER 29. BECAUSE THE INITIAL SALARY RATE GRANTED YOU UPON YOUR APPOINTMENT WAS A LEGAL RATE UNDER THE CLASSIFICATION ACT FOR A GRADE GS-13 POSITION WHICH THE DEPARTMENT OF THE ARMY DENIES WAS FIXED IN ERROR. YOUR REQUEST FOR REVIEW IS BASED PRIMARILY UPON THE PROPOSITION THAT OUR SETTLEMENT OF DECEMBER 29. THE MATERIAL FACTS OF YOUR CASE SO FAR AS OUR OFFICE HAS JURISDICTION ARE AS RECITED ABOVE.

B-126725, MAR. 12, 1956

TO MR. ALBERT A. PERMUT:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT DATED DECEMBER 29, 1955, WHICH DISALLOWED YOUR CLAIM FOR A RETROACTIVE PAY INCREASE AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE RECORD DISCLOSES THAT YOU SERVED WITH THE DEPARTMENT OF THE AIR FORCE IN A GRADE GS-14 POSITION AT $9,600 PER ANNUM FOR A PERIOD OF SLIGHTLY LESS THAN SIX MONTHS. THEREAFTER YOU WERE APPOINTED TO A POSITION WITH THE DEPARTMENT OF THE ARMY, ROCKY MOUNTAIN ARSENAL, DENVER, COLORADO, ON JANUARY 22, 1954, AND YOUR SALARY WAS FIXED AT $8,360 PER ANNUM WHICH AT THAT TIME WAS THE MINIMUM SALARY RATE OF GRADE GS-13. YOUR CLAIM WAS PREDICATED UPON THE ARGUMENT THAT YOU WERE ENTITLED TO THE MAXIMUM SALARY RATE OF GRADE GS-13 BECAUSE OF YOUR PRIOR SERVICE AT A HIGHER RATE. WAS DISALLOWED BY OUR SETTLEMENT OF DECEMBER 29, 1955, BECAUSE THE INITIAL SALARY RATE GRANTED YOU UPON YOUR APPOINTMENT WAS A LEGAL RATE UNDER THE CLASSIFICATION ACT FOR A GRADE GS-13 POSITION WHICH THE DEPARTMENT OF THE ARMY DENIES WAS FIXED IN ERROR.

YOUR REQUEST FOR REVIEW IS BASED PRIMARILY UPON THE PROPOSITION THAT OUR SETTLEMENT OF DECEMBER 29, 1955, DID NOT GIVE DUE WEIGHT TO ALL OF THE FACTS OF YOUR CASE. THE MATERIAL FACTS OF YOUR CASE SO FAR AS OUR OFFICE HAS JURISDICTION ARE AS RECITED ABOVE.

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, NAMELY SECTION 25 103 PROVIDE IN EFFECT, THAT AN ADMINISTRATIVE AGENCY MAY, IN ITS DISCRETION, FIX AN EMPLOYEE'S SALARY RATE UPON REEMPLOYMENT AT ANY SCHEDULED RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE OF COMPENSATION IN SOME PRIOR POSITION IN THE GOVERNMENT SERVICE AS DEFINED IN THE CLASSIFICATION ACT OF 1949, AS AMENDED.

UNDER THOSE REGULATIONS IT WAS PERMISSIBLE FOR THE ROCKY MOUNTAIN ARSENAL TO FIX YOUR SALARY RATE IN GRADE GS-13 NOT TO EXCEED THE RATE OF $9,600 PER ANNUM, THE RATE WHICH YOU HAD OBTAINED IN YOUR PRIOR POSITION. HOWEVER, WHEN AN AGENCY HAS EXERCISED ITS DISCRETION AND FIXED A SALARY RATE LOWER THAN THAT WHICH IT MIGHT HAVE FIXED UNDER THE ABOVE REGULATION, THE RATE SO FIXED MAY BE CHANGED ONLY WHEN THERE IS A CLEAR SHOWING OF ADMINISTRATIVE ERROR. THE RULE IS SET FORTH IN 30 COMP. GEN. 15, WHICH, QUOTING FROM THE SYLLABUS, READS AS FOLLOWS:

"THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HIM, AND THEREFORE THE CORRECTION OF AN ADMINISTRATIVE ERROR MADE IN FIXING THE SALARY OF AN EMPLOYEE UPON REEMPLOYMENT AT A LOWER RATE THAN THE HIGHEST SALARY RATE PREVIOUSLY HELD BY SUCH EMPLOYEE CAN BE ACCOMPLISHED ONLY BY ADMINISTRATIVE ACTION AND UPON SHOWING THAT AN ADMINISTRATIVE ERROR WAS IN FACT MADE IN FIXING THE ORIGINAL SALARY RATE UPON REEMPLOYMENT.'

THE RECORD HERE FAILS TO SUPPORT A CONCLUSION THAT A SALARY RATE OTHER THAN THE ONE PAID YOU WAS INTENDED TO BE FIXED BY THE DEPARTMENT OF THE ARMY NOR DOES IT APPEAR THAT THE REGULATIONS OF THE DEPARTMENT CONCERNING THE FIXING OF INITIAL SALARY RATES WERE NOT CLOSELY FOLLOWED.

ACCORDINGLY, ON THE RECORD OUR SETTLEMENT IS CORRECT AND UPON REVIEW IT MUST BE, AND IS SUSTAINED.

IN RESPONSE TO YOUR QUESTION AS TO WHERE YOU MAY HAVE YOUR CASE REVIEWED 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 SUCH DECISIONS. HOWEVER, YOUR ATTENTION IS CALLED TO THE PROVISIONS OF 28 U.S.C. 1436; ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.