B-129585, DEC. 3, 1956

B-129585: Dec 3, 1956

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DENMAN: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2. THE RECORD DISCLOSES THAT YOUR POSITION WAS REGRADED DOWNWARD AS A CONSEQUENCE OF A CLASSIFICATION REVIEW FOLLOWING THE TRANSFER OF RESPONSIBILITY FOR THE MILITARY SUPPLY AND PROCUREMENT PROGRAM TO THE OFFICE OF THE DISTRICT ENGINEER FROM THE OFFICE OF THE DIVISION ENGINEER. THE REVIEW WAS UNDERTAKEN FOR THE PURPOSE OF BRINGING YOUR POSITION INTO ALIGNMENT WITH CIVIL SERVICE CLASSIFICATION STANDARDS AND OTHER KEY JOBS OF THE DISTRICT. YOU ARE ENTITLED TO THE DIFFERENCE BETWEEN THE COMPENSATION RECEIVED AND THAT PRESCRIBED FOR GRADE GS-14 FROM APRIL 18. SECTION 802/A) OF THE ABOVE-CITED STATUTE SPECIFICALLY PROVIDES THAT THE RATE OF BASIC COMPENSATION TO BE RECEIVED BY ANY OFFICER OR EMPLOYEE TO WHOM SUCH ACT APPLIES SHALL BE GOVERNED BY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION WHEN HIS POSITION IS CHANGED FROM ONE GRADE TO ANOTHER.

B-129585, DEC. 3, 1956

TO MR. MORRIS S. DENMAN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2, 1956, WITH ENCLOSURES, REQUESTING A REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 25, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION BELIEVED TO BE DUE AS A RESULT OF THE REALLOCATION OF YOUR POSITION FROM INDUSTRIAL ENGINEER GS- 14, AT $10,400 PER ANNUM TO SUPERVISORY INDUSTRIAL ENGINEER GS-13, AT $9,360 PER ANNUM, EFFECTIVE APRIL 18, 1954, INCIDENT TO YOUR EMPLOYMENT WITH THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, FORT WORTH DISTRICT.

THE RECORD DISCLOSES THAT YOUR POSITION WAS REGRADED DOWNWARD AS A CONSEQUENCE OF A CLASSIFICATION REVIEW FOLLOWING THE TRANSFER OF RESPONSIBILITY FOR THE MILITARY SUPPLY AND PROCUREMENT PROGRAM TO THE OFFICE OF THE DISTRICT ENGINEER FROM THE OFFICE OF THE DIVISION ENGINEER. THE REVIEW WAS UNDERTAKEN FOR THE PURPOSE OF BRINGING YOUR POSITION INTO ALIGNMENT WITH CIVIL SERVICE CLASSIFICATION STANDARDS AND OTHER KEY JOBS OF THE DISTRICT. YOU CONTEND THAT THERE HAS BEEN NO MATERIAL CHANGE IN YOUR DUTIES AND RESPONSIBILITIES AND THAT UNDER THE PAY SAVING PROVISIONS OF THE CLASSIFICATION ACT OF 1949 (63 STAT. 954), APPROVED OCTOBER 28, 1949, YOU ARE ENTITLED TO THE DIFFERENCE BETWEEN THE COMPENSATION RECEIVED AND THAT PRESCRIBED FOR GRADE GS-14 FROM APRIL 18, 1954.

SECTION 802/A) OF THE ABOVE-CITED STATUTE SPECIFICALLY PROVIDES THAT THE RATE OF BASIC COMPENSATION TO BE RECEIVED BY ANY OFFICER OR EMPLOYEE TO WHOM SUCH ACT APPLIES SHALL BE GOVERNED BY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION WHEN HIS POSITION IS CHANGED FROM ONE GRADE TO ANOTHER. EFFECTIVE AUGUST 18, 1951, THE CIVIL SERVICE COMMISSION PROMULGATED A REGULATION--- SECTION 25.103/E), FEDERAL EMPLOYEES PAY REGULATIONS--- (Z1-318 FEDERAL PERSONNEL MANUAL), READING AS FOLLOWS:

"EMPLOYEES WHO ON THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 OCCUPIED POSITIONS (1) WHICH IMMEDIATELY PRIOR TO SUCH DATE WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, (2) WHICH WERE INITIALLY ALLOCATED TO ANY OF THE GRADES OF THE CLASSIFICATION ACT OF 1949 IN THE MANNER PRESCRIBED THEREIN, AND (3) WHICH THEREAFTER ARE REDUCED BELOW SUCH GRADE, MAY CONTINUE TO RECEIVE THE SAME RATES OF BASIC COMPENSATION WHICH THEY RECEIVED ON THE EFFECTIVE DATE OF THE ACTION TAKEN TO REDUCE THE GRADE OF SUCH POSITION, SO LONG AS THEY REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI.'

THE QUOTED REGULATION WAS IN EFFECT AT THE TIME YOUR POSITION WAS REALLOCATED DOWNWARD. SUCH REGULATION FAILED TO VEST ANY MANDATORY RIGHT IN AN EMPLOYEE WHO MIGHT OTHERWISE HAVE COME WITHIN ITS PROVISIONS, BUT MERELY AUTHORIZES A DEPARTMENT OR AGENCY TO SAVE THE SALARY RATE OF AN EMPLOYEE WHO IS REDUCED IN GRADE UNDER THE CONDITIONS SET FORTH IN THE REGULATION.

IN THE EXAMINATION OF YOUR CLAIM IT IS NOTED THAT YOU PREVIOUSLY MADE REFERENCE TO DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION N1.6-6C, DATED SEPTEMBER 9, 1954. THAT REGULATION DERIVED FROM FEDERAL EMPLOYEES PAY REGULATION 25.103/E) REFERRED TO ABOVE. BOTH REGULATIONS, HOWEVER, REQUIRED AFFIRMATIVE ADMINISTRATIVE APPROVAL OF THE SALARY SAVING PROVISION BEFORE IT BECAME EFFECTIVE WITH REGARD TO THE EMPLOYEE.

IN YOUR CASE THE DEPARTMENT OF THE ARMY HAS DISAPPROVED PAYMENT OF YOUR CLAIM, IT HAVING DETERMINED THAT THE TRANSFER OF SOME OF YOUR DUTIES OR RESPONSIBILITIES AS CHIEF OF AN INDEPENDENT FIELD OFFICE TO THE JURISDICTION OF THE DIVISION ENGINEER AND SUBSEQUENTLY TO THE JURISDICTION OF THE DISTRICT ENGINEER SO MATERIALLY CHANGED THE DUTIES OR RESPONSIBILITIES OF YOUR FORMER POSITION AS TO PRECLUDE THE APPLICATION OF THE PAY SAVING REGULATIONS REFERRED TO HEREIN.

AS YOU NO DOUBT ARE AWARE, THE FUNCTION OF DETERMINING THE PROPER ALLOCATION OF POSITIONS IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION, IS NOT ONE WITHIN THE GENERAL JURISDICTION OF OUR OFFICE, BUT IS IN EVERY CASE THE RESPONSIBILITY OF THE EMPLOYING AGENCY SUBJECT TO REVIEW OF THE UNITED STATES CIVIL SERVICE COMMISSION. IN VIEW OF THE DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOU DO NOT HOLD THE SAME POSITION AS THAT OCCUPIED ON THE EFFECTIVE DATE OF THE CLASSIFICATION ACT OF 1949, WE HAVE NO ALTERNATIVE BUT TO DISALLOW YOUR CLAIM.

ACCORDINGLY, OUR SETTLEMENT OF SEPTEMBER 25, 1956, IS FOUND TO BE CORRECT AND IS SUSTAINED.