B-144493, DECEMBER 8, 1960, 40 COMP. GEN. 346

B-144493: Dec 8, 1960

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CIVILIAN PERSONNEL - COMPENSATION - LONGEVITY INCREASES - STATUTORY CONSTRUCTION - GENERAL LAWS IN THE DETERMINATION OF WHETHER THE PROVISION IN 19 U.S.C. 8 WHICH AUTHORIZES THE FILING OF A VACANCY IN THE OFFICE OF A COLLECTOR OF CUSTOMS BY AN ASSISTANT COLLECTOR WHO RECEIVES THE COMPENSATION OF THE HIGHER OFFICE UNTIL THE APPOINTMENT AND QUALIFICATION OF A COLLECTOR IS A LAW OF GENERAL APPLICATION WITHIN THE MEANING OF THE LONGEVITY INCREASE PROVISION IN SUBSECTION 703 OF THE CLASSIFICATION ACT OF 1949. THE FACT THAT 19 U.S.C. 8 OPERATES OVER EVERY PERSON WITHIN THAT CLASSIFICATION AND SUCH CLASS IS GERMANE TO THE PURPOSE OF THE LAW MAKES IT A LAW OF GENERAL APPLICATION. MEINER WAS PROMOTED TO THE POSITION OF ASSISTANT COLLECTOR OF CUSTOMS.

B-144493, DECEMBER 8, 1960, 40 COMP. GEN. 346

CIVILIAN PERSONNEL - COMPENSATION - LONGEVITY INCREASES - STATUTORY CONSTRUCTION - GENERAL LAWS IN THE DETERMINATION OF WHETHER THE PROVISION IN 19 U.S.C. 8 WHICH AUTHORIZES THE FILING OF A VACANCY IN THE OFFICE OF A COLLECTOR OF CUSTOMS BY AN ASSISTANT COLLECTOR WHO RECEIVES THE COMPENSATION OF THE HIGHER OFFICE UNTIL THE APPOINTMENT AND QUALIFICATION OF A COLLECTOR IS A LAW OF GENERAL APPLICATION WITHIN THE MEANING OF THE LONGEVITY INCREASE PROVISION IN SUBSECTION 703 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1123 (A), SO AS TO ENTITLE AN ASSISTANT COLLECTOR TO COME WITHIN THE EXEMPTION TO THE REQUIREMENT FOR THREE YEARS OF CONTINUOUS SERVICE AT THE MAXIMUM RATE OF THE GRADE WITHOUT AN INCREASE IN COMPENSATION, THE FACT THAT 19 U.S.C. 8 OPERATES OVER EVERY PERSON WITHIN THAT CLASSIFICATION AND SUCH CLASS IS GERMANE TO THE PURPOSE OF THE LAW MAKES IT A LAW OF GENERAL APPLICATION; THEREFORE, THE ASSISTANT COLLECTOR QUALIFIES FOR A LONGEVITY INCREASE NOTWITHSTANDING TENURE IN THE HIGHER GRADE AS ACTING COLLECTOR.

TO ROBERT J. WHITE, DEPARTMENT OF THE TREASURY, DECEMBER 8, 1960:

ON NOVEMBER 18, 1960, THE ADMINISTRATIVE ASSISTANT SECRETARY, TREASURY DEPARTMENT, FORWARDED YOUR REQUEST FOR OUR DECISION CONCERNING THE ENTITLEMENT OF MR. BERNARD A. MEINERS, ASSISTANT COLLECTOR OF CUSTOMS, TO A FIRST LONGEVITY STEP-INCREASE IN GRADE NOTWITHSTANDING A TENURE OF 22 DAYS IN A HIGHER GRADE, NAMELY, GS-15, AS THE ACTING COLLECTOR OF CUSTOMS, PURSUANT TO 19 U.S.C. 8.

THE RECORD SUBMITTED SHOWS THAT ON JULY 13, 1944, MR. MEINER WAS PROMOTED TO THE POSITION OF ASSISTANT COLLECTOR OF CUSTOMS, GRADE GS 13, AT THE PORT OF CHICAGO, ILLINOIS; EFFECTIVE SEPTEMBER 15, 1950, HIS POSITION WAS REALLOCATED TO GRADE GS-14; EFFECTIVE AUGUST 25, 1957, HE RECEIVED A PERIODIC STEP-INCREASE TO THE TOP STEP IN GRADE GS-14; EFFECTIVE NOVEMBER 19, 1959, HE WAS PROMOTED TO GRADE GS-15 AS ACTING COLLECTOR OF CUSTOMS PURSUANT TO 19 U.S.C. 8; AND EFFECTIVE DECEMBER 11, 1959, HE REVERTED TO HIS POSITION AS ASSISTANT COLLECTOR OF CUSTOMS IN GRADE GS-14.

SUBSECTIONS (A) AND (B) (6) OF SECTION 703 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1123 (A) AND (B) (6) PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 1123. LONGEVITY INCREASES.

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, AND AS A REWARD FOR LONG AND FAITHFUL SERVICE, EACH DEPARTMENT SHALL GRANT AN ADDITIONAL STEP- INCREASE (TO BE KNOWN AS A LONGEVITY STEP-INCREASE) BEYOND THE MAXIMUM SCHEDULED RATE OF THE GRADE IN WHICH HIS POSITION IS PLACED, TO EACH OFFICER OR EMPLOYEE FOR EACH THREE YEARS OF CONTINUOUS SERVICE COMPLETED BY HIM AT SUCH MAXIMUM RATE OR AT A RATE IN EXCESS THEREOF AUTHORIZED BY THIS SECTION WITHOUT INCREASE IN GRADE OR RATE OF BASIC COMPENSATION EXCEPT SUCH INCREASE AS MAY BE PRESCRIBED BY ANY PROVISION OF LAW OF GENERAL APPLICATION. * * * ( ITALICS SUPPLIED).

(B) (6) THE OFFICER OR EMPLOYEE SHALL HAVE HAD, IN THE AGGREGATE, NOT LESS THAN TEN YEARS OF SERVICE IN THE POSITION WHICH HE THEN OCCUPIES, OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE.

SECTION 8 OF TITLE 19 OF THE U.S.C. IS, IN PERTINENT PART, AS FOLLOWS:

IN CASE OF A VACANCY IN THE OFFICE OF A COLLECTOR OF CUSTOMS * * * SUCH ASSISTANT COLLECTOR * * * SHALL * * * ACT AS SUCH OFFICER, AND RECEIVE THE COMPENSATION OF SUCH OFFICE UNTIL AN APPOINTMENT THERETO HAS BEEN MADE AND THE PERSON SO APPOINTED HAS DULY QUALIFIED. * * *

THE QUESTION HERE TO BE RESOLVED IS WHETHER THAT STATUTE IS ONE OF "GENERAL APPLICATION" AS THOSE WORDS ARE USED IN 5 U.S.C. 1123, QUOTED ABOVE, SO AS TO COME WITHIN THE EXCEPTION TO THE REQUIREMENT OF THE LATER ACT FOR THREE YEARS OF CONTINUOUS SERVICE AT THE MAXIMUM RATE OF THE GRADE WITHOUT AN INCREASE IN GRADE OR BASIC COMPENSATION.

THE PROVISION OF LAW IN QUESTION HERE CONCERNS ONLY THE ASSISTANT COLLECTORS OF CUSTOMS BUT IT DOES OPERATE OVER EVERY PERSON WITHIN THAT CLASSIFICATION. THE CLASS COMPREHENDED IS GERMANE TO THE PURPOSE OF THE LAW AND IT IS CHARACTERIZED BY SUBSTANTIAL QUALITIES WHICH RENDER THE LEGISLATION NECESSARY AND APPROPRIATE FOR THE INDIVIDUAL MEMBERS OF THE CLASS. THEREFORE, WE CONCLUDE THAT THE STATUTE IS ONE OF GENERAL APPLICATION WITHIN THE MEANING OF THE EXCEPTION CONTAINED IN 5 U.S.C. 1123 (A). UPON THAT PREMISES, PROVIDED MR. MEINERS IS OTHERWISE ENTITLED THERETO, HE MAY BE PROMOTED TO THE FIRST LONGEVITY STEP INCREASE IN GRADE EFFECTIVE SEPTEMBER 4, 1960. COMPARE 26 COMP. GEN. 964.