B-135636, APR. 30, 1958

B-135636, APR. 30, 1958

TO MR. ALBERT N. THOMPSON:

YOUR LETTER OF MARCH 14, 1958, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT DATED JANUARY 16, 1958, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE ON THE BASIS THAT YOU WERE INCORRECTLY PAID FOR SERVICES RENDERED SUBSEQUENT TO SEPTEMBER 24, 1955, AS A MEAT INSPECTOR WITH THE DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, MEMPHIS, TENNESSEE.

WHILE WORKING AS A NURSING ASSISTANT GS-2, AT $3,300 PER ANNUM WITH THE VETERANS ADMINISTRATION IN MEMPHIS, TENNESSEE, YOUR NAME WAS SELECTED FROM THE CIVIL SERVICE REGISTER FOR A POSITION WITH THE DEPARTMENT OF AGRICULTURE AS A MEAT INSPECTOR. YOU WERE APPOINTED AS A MEAT INSPECTOR ON SEPTEMBER 25, 1955, AND YOUR APPOINTMENT WAS EFFECTED WITHOUT A BREAK IN SERVICE FROM YOUR PRIOR POSITION; HOWEVER, IT WAS NOT PROCESSED AS A TRANSFER FROM THE VETERANS ADMINISTRATION AS YOUR APPOINTMENT WAS MADE DIRECTLY FROM THE CIVIL SERVICE REGISTER. YOUR INITIAL SALARY RATE WAS SHOWN AT $3,430 PER ANNUM.

SECTION 25.103 (B) (1) OF THE FEDERAL EMPLOYEES PAY REGULATION, 21 318 OF THE FEDERAL PERSONNEL MANUAL PROVIDES IN PART, AS FOLLOWS:

"/B) (1) SUBJECT TO THE MANDATORY REQUIREMENTS OF PARAGRAPH (D) OF THIS SECTION AND SECTION 25.104, AN EMPLOYEE WHO IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED, OR DEMOTED MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. IF THE EMPLOYEE'S HIGHEST PREVIOUS RATE FALLS BETWEEN THE SCHEDULED RATES OF THE NEW GRADE, HE MAY BE GIVEN THE HIGHER RATE. IF THE EMPLOYEE'S EXISTING RATE OF BASIC COMPENSATION IS LESS THAN THE MINIMUM SCHEDULED RATE OF THE NEW GRADE, HIS COMPENSATION SHALL BE INCREASED TO THE MINIMUM RATE. * * *"

IT WILL BE NOTED THAT THE APPOINTMENT AT A RATE IN EXCESS OF THE MINIMUM BASED ON PREVIOUS SERVICE IS NOT A VESTED RIGHT OF AN EMPLOYEE BUT IS DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE. IF THE ADMINISTRATIVE OFFICE INTENTIONALLY APPOINTS AN EMPLOYEE AT THE MINIMUM SALARY OF THE GRADE SUCH RATE MAY NOT BE INCREASED EXCEPT UPON COMPLETION OF THE PERIODS OF SATISFACTORY SERVICE REQUIRED BY THE CLASSIFICATION ACT FOR WITHIN- GRADE SALARY INCREASES.

IN CONSONANCE WITH THE DISCRETION VESTED BY SECTION 25.103 (B) (1), IT IS AND WAS THE PRACTICE OF THE MEAT INSPECTION SERVICE TO HIRE ALL LAY MEAT INSPECTORS AS TRAINEES AT THE MINIMUM OF GRADE GS-3. THE ONLY EXCEPTION TO THIS IS AN OCCASIONAL REINSTATEMENT OF FORMER MEAT INSPECTORS.

THUS THE INITIAL FIXING OF YOUR SALARY AT THE RATE OF $3,430 PER ANNUM INSTEAD OF $3,175 PER ANNUM, WAS CONTRARY TO THE ESTABLISHED PRACTICE AND TO THE INTENT OF THE RESPONSIBLE OFFICERS. ACCORDINGLY, THE PROMPT CORRECTIVE ACTION REDUCING YOUR RATE TO $3,175 PER ANNUM WAS PROPER.

THE DISALLOWANCE OF YOUR CLAIM THEREFORE WAS PROPER 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.