B-144202, DEC. 30, 1960

B-144202: Dec 30, 1960

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FARMER PURPORTEDLY WAS APPOINTED TO AND APPARENTLY PERFORMED THE DUTIES OF GRADE CAF-14. WAS PAID ONLY AT THE RATE OF $5. 000 WAS EQUIVALENT TO THE THIRD STEP RATE OF CAF-12 AT THE TIME AND SUCH PERIOD OF SERVICE WAS ENTIRELY WITHIN FISCAL YEAR 1942. THE RECORD SHOWS THE APPOINTMENT WAS TO A "NEW POSITION AUTHORIZED 6/12/41.'. IS PROPOSED TO BE EFFECTIVE RETROACTIVELY AS A CORRECTION OF MR. (NORMAL BASE PAY OF CAF 14 WAS $6500 PER ANNUM. ARE CONTAINED IN THE . THAT LIMITATION UPON THE AVAILABILITY OF SUCH APPROPRIATIONS WAS REPEATED FOR FISCAL YEAR 1943. IS AS FOLLOWS: "* * * PROVIDED. WE HELD THAT UNDER PUBLIC LAW 48 IF THE POSITION OR EMPLOYMENT WERE "ADDITIONAL. " THAT IS. REGARDLESS OF THE FACT THAT THE POSITION MAY HAVE BEEN OR THEREAFTER MAY BE REALLOCATED TO A GRADE THE SALARY RANGE OF WHICH IS ABOVE $5.

B-144202, DEC. 30, 1960

TO MR. LEROY P. AFDEM:

YOUR LETTER OF SEPTEMBER 28, 1960, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED PAYROLL VOUCHER, BUREAU SCHEDULE NO. 69- A, FOR $673.02 IN FAVOR OF EDWARD W. FARMER. THAT AMOUNT, BASED ON PERSONNEL ACTION DATED AUGUST 18, 1960, EFFECTIVE OCTOBER 18, 1954, REPRESENTS ADDITIONAL SALARY COMPUTED AT THE SIXTH STEP RATE ($9,360 PER ANNUM) OF GRADE GS-510-13, AS BEING DUE MR. FARMER FOR THE PERIOD OCTOBER 18, 1954, TO JUNE 18, 1955, IN THE CIRCUMSTANCES DESCRIBED BELOW.

THE RECORD SHOWS THAT MR. FARMER PURPORTEDLY WAS APPOINTED TO AND APPARENTLY PERFORMED THE DUTIES OF GRADE CAF-14, BUT WAS PAID ONLY AT THE RATE OF $5,000 PER ANNUM FOR SERVICE FROM AUGUST 16, 1941, TO JUNE 10, 1942, UNDER THE NAVY DEPARTMENT. SUCH PAY RATE OF $5,000 WAS EQUIVALENT TO THE THIRD STEP RATE OF CAF-12 AT THE TIME AND SUCH PERIOD OF SERVICE WAS ENTIRELY WITHIN FISCAL YEAR 1942. THE RECORD SHOWS THE APPOINTMENT WAS TO A "NEW POSITION AUTHORIZED 6/12/41.'

THE COPY OF THE POST OFFICE DEPARTMENT'S PERSONNEL ACTION DATED AUGUST 18, 1960, IS PROPOSED TO BE EFFECTIVE RETROACTIVELY AS A CORRECTION OF MR. FARMER'S APPOINTMENT OF OCTOBER 18, 1954, AS FOLLOWS:

"CORRECTS ITEM 9 OF S.F. 50 DATED 10/18/54, WHICH READ: $8360 PER ANNUM.

"PREVIOUSLY EMPLOYED IN NAVY DEPARTMENT FROM 8/16/41 TO 6/10/42, AS SENIOR CHIEF ACCOUNTANT, CAF-14, WITH RATE LIMITED TO $5000 PER ANNUM BY THE PROVISIONS OF P.L. 48, APPROVED 5/6/41, (NORMAL BASE PAY OF CAF 14 WAS $6500 PER ANNUM--- CONVERTS TO $9600 IN 1954).'

THE PROVISIONS OF PUBLIC LAW 48, MENTIONED IN THE ABOVE PERSONNEL ACTION, ARE CONTAINED IN THE ,MISCELLANEOUS EXPENSES" APPROPRIATION IN THE NAVAL APPROPRIATION ACT, 1942, 55 STAT. 151. THAT LIMITATION UPON THE AVAILABILITY OF SUCH APPROPRIATIONS WAS REPEATED FOR FISCAL YEAR 1943, 56 STAT. 54, PUBLIC LAW 441, APPROVED FEBRUARY 7, 1942. THE LANGUAGE AT 55 STAT. 151, IS AS FOLLOWS:

"* * * PROVIDED, THAT NO PART OF THIS OR ANY OTHER APPROPRIATION FOR THE NAVY DEPARTMENT OR THE NAVAL ESTABLISHMENT FOR FISCAL YEARS 1941 AND 1942, OR OF FUNDS ALLOTTED TO THE NAVY DEPARTMENT, SHALL BE AVAILABLE AFTER MARCH 13, 1941, FOR ANY ADDITIONAL POSITIONS IN THE DISTRICT OF COLUMBIA OR ELSEWHERE AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM, EITHER ON A PER DIEM OR PER ANNUM BASIS, EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED: * * *.'

IN OUR DECISION B-16883 OF MAY 21, 1941, 20 COMP. GEN. 803 (806-807, IN QUESTION NO. 3), WE HELD THAT UNDER PUBLIC LAW 48 IF THE POSITION OR EMPLOYMENT WERE "ADDITIONAL," THAT IS, CREATED AFTER MARCH 13, 1941, A RATE OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM MAY NOT BE PAID TO THE INCUMBENT AFTER MARCH 13, 1941, REGARDLESS OF THE FACT THAT THE POSITION MAY HAVE BEEN OR THEREAFTER MAY BE REALLOCATED TO A GRADE THE SALARY RANGE OF WHICH IS ABOVE $5,000 PER ANNUM, WHETHER OR NOT THE EMPLOYEE WAS IN THE SERVICE ON OR PRIOR TO MARCH 13, 1941. THE LEGISLATIVE HISTORY CITED AT 20 COMP. GEN. 806 EXPRESSES THE LEGISLATIVE INTENT THAT SUCH LIMITATION ON THE NAVY DEPARTMENT'S APPROPRIATIONS BE "A PROVISION BARRING ADDITIONAL POSITIONS AT PAY RATES IN EXCESS OF $5,000 PER ANNUM," EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION IN THAT ACT OR THEREAFTER GRANTED BY AN ACT OF CONGRESS. FOR EXAMPLES OF SPECIFIC AUTHORIZATIONS SEE 55 STAT. 559, ID. 753. SUCH PROVISO CLEARLY WAS DESIGNED TO PREVENT EMPLOYMENT IN NEWLY CREATED POSITIONS AT RATES OF PAY ABOVE CAF-12 AND P-5, AS EXISTING UNDER THE CLASSIFICATION ACT OF 1923 AT THE TIME. SEE HOUSE REPORT NO. 247 DATED MARCH 13, 1941, PAGES 10 AND 11 (77TH CONGRESS) AND THE TESTIMONY OF THE NAVY DEPARTMENT OFFICIALS ON MARCH 17, 1941, PAGE 21 OF THE HEARINGS OF THE SENATE SUBCOMMITTEE ON APPROPRIATIONS CONSIDERING H.R. 3981 WHICH BECAME PUBLIC LAW 48, 55 STAT. 151.

THE PERSONNEL RECORD YOU SUBMITTED CONTAINS A COPY OF THE FORM LETTER OF AUGUST 6, 1941, FILE MRG:AHD, FROM THE CIVIL SERVICE COMMISSION PURPORTING TO APPROVE AN APPOINTMENT OF MR. FARMER TO A POSITION AS SENIOR CHIEF ACCOUNTANT, CAF-12, $5,000 PER ANNUM, IN THE OFFICE OF THE SUPERVISORY COST INSPECTOR, FOURTH NAVAL DISTRICT, PHILADELPHIA, PENNSYLVANIA, FOR THE DURATION OF THE THEN CURRENT NATIONAL DEFENSE PROGRAM, AND IN ACCORDANCE WITH EXECUTIVE ORDER NO. 8564 DATED OCTOBER 8, 1940. HOWEVER, THAT EXECUTIVE ORDER AND THE USUAL PROCEDURES THEREUNDER AND UNDER THE CLASSIFICATION ACT OF 1923 WERE NOT CONTROLLING IN THIS CASE TO THE EXTENT THAT THEY WERE IN CONFLICT WITH THE RESTRICTIONS THE CONGRESS HAD INTERPOSED BY PUBLIC LAW 48. MOREOVER, SUCH USUAL PROCEDURES UNDER THE 1923 ACT DID NOT REATTACH TO MR. FARMER'S POSITION PRIOR TO JUNE 10, 1942, THE DATE HE LEFT THE SERVICE OF THE NAVY DEPARTMENT.

THEREFORE, AND SINCE THE RATE OF $5,000 PER ANNUM WAS THE ONLY VALID RATE PAYABLE AT THE TIME, AND WAS LESS THAN $6,500 PER ANNUM, THE FIRST STEP RATE OF CAF-14 AT THE TIME, OUR VIEW IS THAT SUCH $6,500 RATE WAS NOT LEGALLY ATTAINED BY MR. FARMER DURING THE PERIOD IN QUESTION. THE FACT THAT THE LAW SUBSEQUENTLY WAS CHANGED DOES NOT AFFECT THE MATTER HERE. THE PRESENT RECORD, WE HOLD THAT MR. FARMER WAS NOT, IN FACT, IN A VALID CAF-14 POSITION DURING THE PERIOD OF HIS EMPLOYMENT WITH THE NAVY. SUBSEQUENT TO TERMINATION OF HIS EMPLOYMENT WITH THE NAVY, WE UNDERSTAND THAT MR. FARMER DID NOT REENTER THE FEDERAL SERVICE UNTIL JULY 12, 1952, IN GRADE GS-11 AT $5,940 PER ANNUM, WHEN HE WAS EMPLOYED BY THE ATOMIC ENERGY COMMISSION, LEAVING THAT SERVICE ON JUNE 30, 1954, AT GS-12, SECOND STEP $7,240 PER ANNUM. THUS, UPON HIS EMPLOYMENT BY THE POST OFFICE DEPARTMENT ON OCTOBER 18, 1954, IN THE GS-13 POSITION HERE IN QUESTION, WE DO NOT FIND THAT ANY CURRENT RATE OF GRADE GS-14 LAWFULLY WAS TO BE APPLIED TO MR. FARMER AS HAVING BEEN ATTAINED IN PRIOR FEDERAL SERVICE.

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS THE VOUCHER, BUREAU SCHEDULE NO. 69-A, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.