B-130444, APR. 15, 1957

B-130444: Apr 15, 1957

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THE DISALLOWANCE WAS PREDICATED UPON THE LACK OF REQUIRED EFFICIENCY RATING OF "GOOD" OR BETTER AND ALSO THE LACK OF AN ADMINISTRATIVE CERTIFICATE OF SATISFACTORY CONDUCT AND SERVICE. THAT YOUR EFFICIENCY RATING RECEIVED PREVIOUSLY IN THE WAR DEPARTMENT WAS SUFFICIENT AND THAT THE REQUIRED CERTIFICATE OF SATISFACTORY CONDUCT AND SERVICE WAS "A TRICK COOKED UP" BY OTHER EMPLOYEES OF THE SERVICE. THE FOLLOWING PERTINENT CONDITIONS FOR PERIODIC SALARY ADVANCEMENTS: (A) THAT THE EMPLOYEE'S CURRENT EFFICIENCY RATING IS "GOOD" OR BETTER. (C) THAT THE SERVICE AND CONDUCT OF THE EMPLOYEE ARE CERTIFIED AS BEING OTHERWISE SATISFACTORY BY THE HEAD OF THE DEPARTMENT OR SUCH OTHER OFFICIAL AS HE MAY HAVE DESIGNATED.

B-130444, APR. 15, 1957

TO MR. CHANDLER H. LAPSLAY:

YOUR LETTERS OF FEBRUARY 23, MARCH 18, 19, APRIL 2, AND 3, 1957, REQUEST REVIEW OF OUR OFFICE SETTLEMENT OF FEBRUARY 18, 1957, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE YOU AS AN EMPLOYEE OF THE TREASURY DEPARTMENT, BUREAU OF INTERNAL REVENUE (NOW INTERNAL REVENUE SERVICE), FOR THE PERIOD JANUARY 28, 1946, TO APRIL 30, 1956, BECAUSE OF DELAY IN RECEIVING A WITHIN GRADE SALARY INCREASE FROM JANUARY 28, 1946, TO APRIL 28, 1947. THE DISALLOWANCE WAS PREDICATED UPON THE LACK OF REQUIRED EFFICIENCY RATING OF "GOOD" OR BETTER AND ALSO THE LACK OF AN ADMINISTRATIVE CERTIFICATE OF SATISFACTORY CONDUCT AND SERVICE. IN YOUR LETTER OF FEBRUARY 23, YOU SAY, AMONG OTHER THINGS, THAT YOUR EFFICIENCY RATING RECEIVED PREVIOUSLY IN THE WAR DEPARTMENT WAS SUFFICIENT AND THAT THE REQUIRED CERTIFICATE OF SATISFACTORY CONDUCT AND SERVICE WAS "A TRICK COOKED UP" BY OTHER EMPLOYEES OF THE SERVICE.

THE CLASSIFICATION ACT OF 1923, AS AMENDED, 59 STAT. 295, 298, PRESCRIBED, IN ADDITION TO THE TIME IN GRADE REQUIREMENT, THE FOLLOWING PERTINENT CONDITIONS FOR PERIODIC SALARY ADVANCEMENTS: (A) THAT THE EMPLOYEE'S CURRENT EFFICIENCY RATING IS "GOOD" OR BETTER, AND (C) THAT THE SERVICE AND CONDUCT OF THE EMPLOYEE ARE CERTIFIED AS BEING OTHERWISE SATISFACTORY BY THE HEAD OF THE DEPARTMENT OR SUCH OTHER OFFICIAL AS HE MAY HAVE DESIGNATED.

YOUR ENTITLEMENT TO THE SALARY INCREASE CLAIMED TURNS UPON A SHOWING THAT THE STATUTORY REQUIREMENTS HAVE BEEN SATISFIED. THIS INVOLVES AN AFFIRMATIVE EXERCISE OF ADMINISTRATIVE DISCRETION WHICH IS CONCLUSIVE ON OUR OFFICE.

BY LETTER OF NOVEMBER 30, 1956, SIGNED BY THE ACTING DIRECTOR, FISCAL MANAGEMENT DIVISION, OFFICE OF THE COMMISSIONER OF THE INTERNAL REVENUE SERVICE, THERE WAS REPORTED AS FOLLOWS:

"THE CLAIMANT ALLEGES THAT ON JANUARY 28, 1946 "MY EFFICIENCY RATING WAS EXCELLENT, AS BROUGHT OVER WHEN TRANSFERRED FROM THE WAR DEPARTMENT.' THERE IS NO SUCH RATING IN MR. LAPSLEY'S FILE. EVEN IF SUCH A RATING WAS GIVEN BY THE WAR DEPARTMENT, IT COULD NOT BE CONSIDERED AN "APPROPRIATE CURRENT RATING" TO DETERMINE ELIGIBILITY FOR A PERIODIC WITHIN-GRADE PROMOTION ACCORDING TO THE REGULATIONS IN E1-6 OF THE FEDERAL PERSONNEL MANUAL CURRENT AT THAT TIME, SINCE THE RATING HAD NOT BEEN MADE WITHIN 90 CALENDAR DAYS OF THE COMPLETION OF THE WAITING PERIOD.

"THE AFOREMENTIONED REGULATIONS IN CHAPTER E1 OF THE FEDERAL PERSONNEL MANUAL REQUIRED THAT A ,SPECIAL" RATING BE PREPARED WHEN A PERIODIC STEP INCREASE FELL DUE AND NO APPROPRIATE CURRENT RATING WAS AVAILABLE. REGULAR PERIODIC RATINGS UNDER THEN EXISTING INSTRUCTIONS WERE PREPARED ANNUALLY AS OF MARCH 31ST FOR ALL EMPLOYEES. SINCE THE WAITING PERIOD FOR THE STEP INCREASE IN THE INSTANT CASE ENDED ON JANUARY 28, NO APPROPRIATE CURRENT RATING WAS AVAILABLE FOR USE AS A PARTIAL BASIS FOR GRANTING THE INCREASE; A SPECIAL RATING SHOULD HAVE BEEN PREPARED.

"THERE IS NO EVIDENCE THAT A SPECIAL RATING WAS PREPARED AT THAT TIME. HOWEVER, THERE IS AMPLE INDICATION IN THE RECORD THAT THIS WAS NOT AN OVERSIGHT BUT, RATHER, DUE TO THE SUBSTANDARD PERFORMANCE OF MR. LANSLEY IN HIS THEN HELD POSITION. THERE IS FURTHER INDICATION THAT A SPECIAL RATING, HAD IT BEEN PREPARED, WOULD HAVE RESULTED IN AN ADJECTIVE LOWER THAN "GOOD," THE MINIMUM RATING PREREQUISITE FOR GRANTING A PERIODIC STEP INCREASE. FOR EXAMPLE, THE RECORD CONTAINS A MEMORANDUM DATED FEBRUARY 4, 1946 FROM THE HEAD OF THE DIVISION TO THE ACTING DEPUTY COMMISSIONER ADVISING THAT HE DID NOT DEEM IT ADVISABLE TO MAKE AN INTERIM RATING AT THE TIME FOR THE REASON THAT "MR. LAPSLEY HAS PERFORMED NO WORK TO THE PRESENT TIME OF THE CHARACTER THAT IS REQUIRED OF A REVIEWER IN GRADE CAF- 12, SUCH AS, CLAIMS FOR RELIEF UNDER THE PROVISIONS OF SECTION 722 OF THE CODE; FORMULATING REPLIES TO LETTERS FROM INTERNAL REVENUE AGENTS IN CHARGE, REQUESTING TECHNICAL ADVICE, AND THE POST-REVIEW OF REPORTS ON CASES INVOLVING CONSOLIDATED INCOME AND EXCESS PROFITS TAX RETURNS; " MEMORANDUM DATED FEBRUARY 18, 1946 TO THE EMPLOYEE STATING THAT THE TRAINING DIVISION ADVISED "THAT WHILE YOU ENROLLED FOR THE INDIVIDUAL INCOME TAX COURSE UNDER DATE OF SEPTEMBER 18, 1945, YOU HAVE NEVER SUBMITTED ANY ANSWERS TO THE QUIZZERS WHICH ACCOMPANIED THE LECTURES. ALL NEWLY APPOINTED AUDITORS OR REVIEWERS ARE REQUIRED TO ENROLL FOR AND COMPLETE THE INDIVIDUAL INCOME TAX, THE CORPORATION INCOME AND EXCESS PROFITS TAX, AND THE EVIDENCE AND PROCEDURE COURSES, IN THE ORDER NAMED, IT IS REQUESTED THAT YOU COMPLY * * * PROMPTLY.'

"JULY 17, 1946, AN OFFICIAL RATING OF "FAIR" WAS GIVEN THE EMPLOYEE FOR THE PERIOD FROM SEPTEMBER 17, 1945 TO THAT DATE. AN ADMINISTRATIVE HEARING REQUESTED BY THE EMPLOYEE WAS HELD SEPTEMBER 9, 1946. THE APPEAL COMMITTEE SUSTAINED THE ORIGINAL RATING OF "FAIR" (EXHIBIT 5). PURSUANT TO THE EMPLOYEE'S REQUEST OF NOVEMBER 12, 1946 THAT "THE RATING IS NOT BASED ON MY RECORD WITH OR WORK IN THE BUREAU" A HEARING WAS HELD IN MARCH, 1947 BEFORE THE TREASURY DEPARTMENT EFFICIENCY RATING BOARD OF REVIEW, THE HIGHEST APPELLATE AUTHORITY IN THE FEDERAL SERVICE. THAT BOARD ALSO SUSTAINED THE EFFICIENCY RATING OF "FAIR" AS EVIDENCED BY NOTICE OF DECISION DATED APRIL 16, 1947.

"AT THE HEARING THE APPELLATE CONTENDED HIS PERFORMANCE OF JUNE 30, 1946 WAS UNDER A TENTATIVE OR TRIAL ASSIGNMENT AND HIS SERVICE DURING THIS TIME WAS IN THE CAPACITY OF A TRAINEE. HOWEVER, HE WAS ADVISED BY THE BOARD OF REVIEW THAT HE HAD APPLIED FOR AND HAD BEEN GIVEN A POSITION IN A GRADE WHICH, UNDER THE LAW, CONTEMPLATED THE PERFORMANCE OF WORK WITH LITTLE OR NO SUPERVISION, BUT ENTAILING FULL RESPONSIBILITY FOR RESULTS. THE HEARING WAS ALLOWED TO CONTINUE FOR THREE AND ONE-HALF DAYS, IN ORDER THAT THE APPELLANT WOULD HAVE EVERY OPPORTUNITY TO PRESENT HIS CASE AND CONTEST THE EVIDENCE SUBMITTED BY THE REVENUE SERVICE. THE APPELLANT AND HIS REPRESENTATIVE, A PRACTICING LAWYER, WERE PRESENT DURING THE ENTIRE PROCEEDINGS AND MADE FULL AND EXTENSIVE USE OF THEIR OPPORTUNITIES.

"ATTACHED IN TABULATED FORM, IS A COMPLETE DETAILED RECORD OF MR. LAPSLEY'S EMPLOYMENT TOGETHER WITH COPIES OF ALL PERTINENT PERSONNEL ACTIONS IN ACCORDANCE WITH YOUR REQUEST. THE ATTACHED RECORD VERIFIES THAT THE EMPLOYEE RECEIVED TIMELY WITHIN-GRADE SALARY ADVANCEMENTS, AS WELL AS A LONGEVITY INCREASE IN SALARY, AS STATUTORY REQUIREMENTS THEREFOR WERE MET. ACCORDINGLY, NO ADDITIONAL SALARY IS DUE THE CLAIMANT AND HIS CLAIM IS RETURNED HEREWITH WITHOUT ADMINISTRATIVE APPROVAL.'

THE REPORT FURTHER SAYS, IN EFFECT, THAT NO CERTIFICATION OF SATISFACTORY CONDUCT AND SERVICE HAD BEEN MADE AS OF JANUARY 28, 1956. THE DOCUMENTS ON FILE HERE SHOW STOCK FORM 2249 DATED JULY 28, 1947, COVERING A PERIODIC PAY INCREASE EFFECTIVE APRIL 20, 1947. UNDER "JUSTIFICATION" IS THE STATEMENT "DELAYED BECAUSE OF EFFICIENCY RATING OF FAIR APPROVED 7-15- 46.' NO STOCK FORM 2249 DATED PRIOR TO JULY 28, 1947, HAS BEEN SUBMITTED TO US.

IN THE LIGHT OF THE FOREGOING REPORT THE EFFICIENCY RATINGS RECEIVED IN THE WAR DEPARTMENT PRIOR TO YOUR TRANSFER DO NOT APPEAR TO BE FOR APPLICATION. ALSO, IT IS EVIDENT FROM THE ADMINISTRATIVE REPORT THAT THE STATUTORY REQUIREMENTS ABOVE, WERE NOT SATISFIED AS OF JANUARY 28, 1956. IN THE ABSENCE OF THE REQUIRED EFFICIENCY RATING OF "GOOD"OR BETTER AND THE REQUIRED CERTIFICATION OF SATISFACTORY CONDUCT AND SERVICE, WE ARE PRECLUDED FROM ALLOWING YOUR CLAIM, IRRESPECTIVE OF THE CORRECTNESS OF OTHER ADMINISTRATIVE ACTIONS IN THE MATTER.

CONCERNING THE DISCREPANCY BETWEEN THE ADMINISTRATIVE REPORT AND YOUR STATEMENTS AS TO THE EFFICIENCY RATING AND CERTIFICATION OF SATISFACTORY CONDUCT AND SERVICE, YOU ARE INFORMED THAT IN ALL CASES OF DISCREPANCY BETWEEN ADMINISTRATIVELY REPORTED FACTS AND THOSE ALLEGED BY A CLAIMANT, OUR OFFICE MUST ACCEPT THE ADMINISTRATIVE REPORT AS CONTROLLING IN THE ABSENCE OF THE SUBMISSION OF EVIDENCE OF SUFFICIENT WEIGHT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVELY REPORTED FACTS. SUCH EVIDENCE HAS BEEN SUBMITTED BY YOU.