B-141241, DEC. 14, 1959

B-141241: Dec 14, 1959

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WE WILL TREAT THE MATTER AS COMING FROM YOU AS HEAD OF THE AGENCY. THAT THOSE STANDARDS WERE IMPLEMENTED IN REGION 2. AT THE TIME OF THE IMPLEMENTATION IT WAS ADMINISTRATIVELY DETERMINED THAT ESTABLISHMENT OF A GRADE GS-11 POSITION WAS REQUIRED TO PROVIDE FOR PROMOTIONAL OPPORTUNITIES TO THE GRADE GS-12 LEVEL BECAUSE OF THE "WHITTEN" AMENDMENT PROMOTION RESTRICTIONS. IT WAS DISCOVERED THAT THE ESTABLISHMENT OF A GRADE GS-11 POSITION IN CLASS IV TOWERS WAS UNNECESSARY AND. CONSTITUTED AN ADMINISTRATIVE ERROR BECAUSE CIVIL SERVICE REGULATION 2.502 (F) PERMITS TWO-GRADE PROMOTIONS AT GRADE GS-12 AND ABOVE IF THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION AT THE NEXT LOWER GRADE. WHEN THE ERROR WAS DISCOVERED.

B-141241, DEC. 14, 1959

TO THE HONORABLE E. R. QUOSADA, ADMINISTRATOR, FEDERAL AVIATION AGENCY:

THIS REFERS TO THE LETTER OF NOVEMBER 6, 1959, FROM THE REGIONAL PERSONNEL OFFICER, FEDERAL AVIATION AGENCY, REGION 2, P.O. BOX 1689, FORT WORTH 1, TEXAS, REQUESTING OUR DECISION AS TO WHETHER WE WOULD OBJECT TO THE ADMINISTRATIVE CORRECTION OF FIVE PERSONNEL ACTIONS PROCESSED BY THAT REGION ON SEPTEMBER 28, 1959, SO AS TO SHOW THE EFFECTIVE DATE OF PROMOTION AS APRIL 19, 1959, RATHER THAN OCTOBER 4, 1959, UPON THE BASIS OF THE FACTS HEREINAFTER RELATED.

WE DIRECT ATTENTION OF YOUR AGENCY TO THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 31, 1894, AS AMENDED, 31 U.S.C. 74 (THIRD PARAGRAPH), WHICH AUTHORIZES OUR OFFICE TO RENDER A DECISION ONLY UPON THE REQUEST, AMONG OTHERS, OF THE HEAD OF A DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT CONCERNING THE PROPRIETY OF A PAYMENT TO BE MADE BY THEM OR UNDER THEM; ALSO TO CIRCULAR LETTER OF OUR OFFICE DATED DECEMBER 13, 1946, B-62476, 26 COMP. GEN. 593. COMPARE 22 COMP. GEN. 725 (LAST PARAGRAPH). IN ORDER TO AVOID DELAY, IN THIS PARTICULAR INSTANCE, WE WILL TREAT THE MATTER AS COMING FROM YOU AS HEAD OF THE AGENCY.

THE LETTER OF NOVEMBER 6 STATES THAT IN OCTOBER 1958, THE CIVIL SERVICE COMMISSION PUBLISHED NEW CLASSIFICATION STANDARDS FOR THE AIR TRAFFIC CONTROL SERIES NO. 2152; THAT THOSE STANDARDS WERE IMPLEMENTED IN REGION 2, EFFECTIVE APRIL 19, 1959; AND THAT THE NEW STANDARDS PROVIDED FOR A GRADE STRUCTURE IN THE ATLANTA, GEORGIA, AND MIAMI, FLORIDA, CLASS IV TOWERS AS FOLLOWS: GRADES GS-2152-6, 8, 10, 12, 13, AND 14. AT THE TIME OF THE IMPLEMENTATION IT WAS ADMINISTRATIVELY DETERMINED THAT ESTABLISHMENT OF A GRADE GS-11 POSITION WAS REQUIRED TO PROVIDE FOR PROMOTIONAL OPPORTUNITIES TO THE GRADE GS-12 LEVEL BECAUSE OF THE "WHITTEN" AMENDMENT PROMOTION RESTRICTIONS.

SUBSEQUENT TO APRIL 19, 1959, IT WAS DISCOVERED THAT THE ESTABLISHMENT OF A GRADE GS-11 POSITION IN CLASS IV TOWERS WAS UNNECESSARY AND, THEREFORE, CONSTITUTED AN ADMINISTRATIVE ERROR BECAUSE CIVIL SERVICE REGULATION 2.502 (F) PERMITS TWO-GRADE PROMOTIONS AT GRADE GS-12 AND ABOVE IF THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION AT THE NEXT LOWER GRADE.

WHEN THE ERROR WAS DISCOVERED, ACTION WAS TAKEN ON SEPTEMBER 28, 1959, TO PROMOTE FIVE EMPLOYEES TO GRADE GS-12 EFFECTIVE OCTOBER 4, 1959. UNDER THE CIRCUMSTANCES OUTLINED ABOVE, OUR DECISION IS REQUESTED AS TO WHETHER THOSE EMPLOYEES NOW CAN BE PROMOTED RETROACTIVELY TO APRIL 19, 1959, WITH AN APPROPRIATE ADJUSTMENT IN COMPENSATION--- THAT DATE BEING THE ONE ON WHICH THE CLASSIFICATION STANDARDS WERE IMPLEMENTED IN REGION 2. THE LETTER STATES THAT EACH OF THESE EMPLOYEES "HAS BEEN PERFORMING SUBSTANTIALLY AT THE GS-12 LEVEL SINCE IMPLEMENTATION OF THE NEW STANDARDS ON APRIL 19, 1959.'

THE PRINCIPLE IS WELL ESTABLISHED THAT ADMINISTRATIVE CHANGES IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING. THEREFORE, THE PROMOTION TO THE GRADE GS-12 POSITIONS MAY NOT BE GIVEN RETROACTIVE EFFECT. FURTHER WHILE IT IS SAID IN THE LETTER OF NOVEMBER 6 THAT THE GRADE GS-11 POSITIONS WERE ESTABLISHED TO FACILITATE PROMOTIONS TO THE GRADE GS-12 POSITIONS, ACTUALLY THE EXISTENCE OF THE GRADE GS-11 POSITION NORMALLY WOULD OPERATE TO PROHIBIT THE PROMOTIONS TO THE GRADE GS-12 POSITIONS UNTIL APRIL 19, 1960. HOWEVER, IN VIEW OF THE FACT THAT THE EMPLOYEES CONCERNED COULD HAVE BEEN PROMOTED DIRECTLY FROM THE GRADE GS-10 TO THE GRADE GS-12 POSITIONS UNDER "NORMAL LINE OF PROMOTION" EXCEPTION TO THE YEAR IN GRADE RULE OF THE WHITTEN AMENDMENT AND THAT THE ESTABLISHMENT OF THE GRADE GS- 11 POSITION WAS SO CLEARLY CONTRARY TO THE ADMINISTRATIVE PURPOSE IN CREATING SUCH POSITION WE WILL NOT OBJECT TO THE PROMOTIONS TO GRADE GS-12 POSITIONS EFFECTIVE OCTOBER 4, 1959.