B-140790, NOV. 13, 1959

B-140790: Nov 13, 1959

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WAS RECEIVED HERE ON APRIL 8. IS BARRED FROM CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE. IS RECEIVED HERE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. YOU WERE A FEDERAL EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE (COMPETITIVE STATUS). YOU WERE GIVEN AN APPOINTMENT BY TRANSFER AND ASSIGNED TO THE POSITION OF COMMERCIAL COST ACCOUNTANT. YOU WERE EMPLOYED BY THE U.S. YOU WERE SEPARATED FROM THE FEDERAL SERVICE. YOUR CLAIM (EXCLUDING INTEREST) IS FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE AFTER JULY 24. YOU CONTEND THAT YOUR INITIAL PER ANNUM SALARY SHOULD HAVE BEEN $4. - THE RATE YOU WERE RECEIVING PRIOR TO SUCH TRANSFER. - THE PERSONNEL ACTION NOTICE YOU RECEIVED AT THE TIME YOU WERE SEPARATED (RETIRED) FROM THE SERVICE: "THIS ACTION IS SUBJECT TO ALL APPLICABLE LAWS.

B-140790, NOV. 13, 1959

TO MR. MICHAEL F. RICHARDSON:

THIS REFERS TO YOUR LETTER OF AUGUST 30, 1959, REQUESTING FURTHER CONSIDERATION OF OUR SETTLEMENT DATED AUGUST 7, 1959, WHICH DISALLOWED YOUR CLAIM FOR $2,730.19 FOR ADDITIONAL COMPENSATION (SALARY $1,895.07 -- INTEREST $835.12), INCIDENT TO YOUR SERVICES AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY FROM JULY 24, 1947, THROUGH AUGUST 31, 1957.

YOUR ORIGINAL CLAIM LETTER DATED APRIL 4, 1959, WAS RECEIVED HERE ON APRIL 8, 1959. AS A RESULT OF THE ACTS OF OCTOBER 9, 1940, 54 STAT. 1061, AND OCTOBER 17, 1940, 54 STAT. 1181, THAT PORTION OF YOUR CLAIM INVOLVING THE PERIOD PRIOR TO APRIL 8, 1949, CANNOT BE GIVEN CONSIDERATION. SUBSEQUENT TO THE PASSAGE OF THE ABOVE-CITED STATUTES THE CLAIM OF ANY INDIVIDUAL AGAINST THE UNITED STATES FALLING WITHIN THE SCOPE OF SECTION 1 OF THE OCTOBER 1940 ACT, SUPRA, IS BARRED FROM CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE, UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT, IS RECEIVED HERE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. CONSEQUENTLY, NO ACTION CAN NOW BE TAKEN UPON YOUR CLAIM FOR ANY PERIOD PRIOR TO APRIL 8, 1949.

OUR RECORDS SHOW THAT FOR A CONSIDERABLE PERIOD PRIOR TO JULY 24, 1947, YOU WERE A FEDERAL EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE (COMPETITIVE STATUS), AND THAT YOU OCCUPIED SEVERAL POSITIONS AT VARIOUS LOCATIONS IN EASTERN UNITED STATES WITH GRADES RANGING FROM CAF-6 TO CAF-11.

ON JULY 24, 1947, TO AVOID AN OUTRIGHT SEPARATION BECAUSE OF A REDUCTION IN FORCE, YOU WERE GIVEN AN APPOINTMENT BY TRANSFER AND ASSIGNED TO THE POSITION OF COMMERCIAL COST ACCOUNTANT, NAVY AREA AUDIT OFFICE, DEPARTMENT OF THE NAVY, BOSTON, MASSACHUSETTS, GRADE CAF 9, AT $4,149.60 PER ANNUM. IMMEDIATELY PRIOR TO SUCH TRANSFER, YOU WERE EMPLOYED BY THE U.S. MARITIME COMMISSION, OCCUPYING THE POSITION OF CONSTRUCTION COST AUDITOR, WITH A STIPULATED SALARY OF $4,525.80 PER ANNUM--- THIRD STEP IN GRADE CAF-9. YOU WERE SEPARATED FROM THE FEDERAL SERVICE--- RETIRED BECAUSE OF AGE--- EFFECTIVE AUGUST 31, 1957.

YOUR CLAIM (EXCLUDING INTEREST) IS FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE AFTER JULY 24, 1947. YOU CONTEND THAT YOUR INITIAL PER ANNUM SALARY SHOULD HAVE BEEN $4,525.80 (THIRD STEP IN GRADE CAF 9/--- THE RATE YOU WERE RECEIVING PRIOR TO SUCH TRANSFER--- IN LIEU OF $4,190.60 (MINIMUM RATE THEN PRESCRIBED FOR GRADE CAF-9). YOUR ORIGINAL REQUEST FOR ADDITIONAL COMPENSATION CONTAINS THE FOLLOWING QUOTATION WHICH APPEARS IN PARAGRAPH 20, STANDARD FORM 50, DATED SEPTEMBER 3, 1957--- THE PERSONNEL ACTION NOTICE YOU RECEIVED AT THE TIME YOU WERE SEPARATED (RETIRED) FROM THE SERVICE:

"THIS ACTION IS SUBJECT TO ALL APPLICABLE LAWS, RULES, AND REGULATIONS AND MAY BE SUBJECT TO INVESTIGATION AND APPROVAL BY THE UNITED STATES CIVIL SERVICE COMMISSION. THE ACTION MAY BE CORRECTED OR CANCELLED IF NOT IN ACCORDANCE WITH ALL REQUIREMENTS.'

THE ABOVE-QUOTED PROVISION RELATES EXCLUSIVELY TO ADMINISTRATIVE PERSONNEL ACTIONS WHICH AFFECT THE SEPARATION OF OFFICERS AND EMPLOYEES FROM THE FEDERAL SERVICE. ALL SUCH PERSONNEL ACTIONS ARE SUBJECT TO REVIEW AND APPROVAL AND MAY NOT CONTRAVENE APPLICABLE LAWS OR THE ESTABLISHED RULES AND REGULATORY REQUIREMENTS.

ACTION UPON YOUR CLAIM IS, OF COURSE, GOVERNED BY THE LAWS AND REGULATIONS IN EFFECT IN THE TIME OF YOUR TRANSFER. SECTION 25.103 OF THE FEDERAL EMPLOYEES PAY REGULATIONS (SEE CODE OF FEDERAL REGULATION, SECTION 25.103), ISSUED BY THE CIVIL SERVICE COMMISSION IMMEDIATELY FOLLOWING THE PASSAGE OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 964, PROVIDES GENERALLY THAT AN EMPLOYEE WHO IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR DEMOTED MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. THAT REGULATION IS STILL IN EFFECT AND IT WAS THE ESTABLISHED RULE WHICH GOVERNED THE RATES OF PAY FOR TRANSFERRED EMPLOYEES AT THE TIME OF YOUR APPOINTMENT BY TRANSFER WITH THE DEPARTMENT OF THE NAVY. THUS, A CIVILIAN EMPLOYEE WHO IS TRANSFERRED FROM ONE AGENCY TO ANOTHER WITH DIFFERENT DUTIES AND RESPONSIBILITIES, ACQUIRES NO VESTED RIGHT TO BE PAID INITIALLY AT ANY SALARY RATE OR STEP WITHIN THE GRADE TO WHICH APPOINTED EXCEPT THE MINIMUM SALARY RATE PRESCRIBED FOR GRADE. WHILE THE ADMINISTRATIVE OFFICE COULD HAVE ACCEPTED YOUR TRANSFER AT THE HIGHER RATE OF SALARY IF IT SO DESIRED AND FUNDS OTHERWISE WERE AVAILABLE IT WAS NOT REQUIRED TO DO SO. IT CLEARLY WAS WITHIN ADMINISTRATIVE DISCRETION TO FIX YOUR SALARY RATE AT THE MINIMUM OF THE GRADE AS IT CHOSE TO DO. SINCE WE FIND THAT YOU RECEIVED THE MINIMUM RATE PRESCRIBED FOR GRADE CAF-9--- THE RATE ADMINISTRATIVELY FIXED--- THERE IS NO AUTHORITY TO PAY ADDITIONAL COMPENSATION AS CLAIMED.

ALTHOUGH NO AMOUNT IS FOUND DUE YOU FOR UNPAID SALARY, AS YOU WERE ADVISED IN THE SETTLEMENT OF AUGUST 7, 1959, THE UNITED STATES IS NOT LIABLE FOR THE PAYMENT OF INTEREST ON ITS OBLIGATIONS EXCEPT WHEN INTEREST IS STIPULATED FOR IN LEGAL AND PROPER CONTRACTS, OR WHEN THE ALLOWANCE OF INTEREST IS SPECIFICALLY DIRECTED BY STATUTE.

UPON REVIEW, THE SETTLEMENT OF AUGUST 7, 1959, DISALLOWING YOUR CLAIM, IS FOUND TO BE CORRECT AND IT IS HEREBY SUSTAINED.