B-155270, OCT. 12, 1964

B-155270: Oct 12, 1964

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YOU REQUESTED OUR DECISION CONCERNING THE SALARY STEP OF GRADE GS-16 TO WHICH YOU ARE ENTITLED. SINCE YOUR LETTER IS IN THE NATURE OF A CLAIM AGAINST THE UNITED STATES AND AS THE QUESTION INVOLVED IS ONE OF GENERAL INTEREST WE BELIEVE AN EXCEPTION IS WARRANTED IN THIS PARTICULAR INSTANCE. THE FACTS PERTINENT TO YOUR CASE ARE SUMMARIZED AS FOLLOWS: IN FEBRUARY 1953 YOU ACCEPTED THE POSITION OF EXECUTIVE OFFICER. YOU HAVE OCCUPIED SUCH POSITION CONTINUOUSLY SINCE THAT DATE. YOU WERE ADVANCED TO THE FIFTH STEP OF GRADE GS-16. THE TIME OF SUCH ADVANCEMENT THE FIFTH STEP OF GRADE GS-16 WAS THE TOP STEP OF THAT GRADE AND CONTINUED TO BE THE TOP STEP UNTIL ENACTMENT OF PUB.L. 88-426. THE QUESTION YOU PRESENT IS WHETHER YOUR SERVICE BETWEEN JULY 24.

B-155270, OCT. 12, 1964

TO MR. R. W. BUNCH:

ON SEPTEMBER 22, 1964, YOU REQUESTED OUR DECISION CONCERNING THE SALARY STEP OF GRADE GS-16 TO WHICH YOU ARE ENTITLED. ORDINARILY, YOU WOULD NOT BE ENTITLED TO A DECISION UPON THE MATTER PRESENTED AT THIS TIME. HOWEVER, SINCE YOUR LETTER IS IN THE NATURE OF A CLAIM AGAINST THE UNITED STATES AND AS THE QUESTION INVOLVED IS ONE OF GENERAL INTEREST WE BELIEVE AN EXCEPTION IS WARRANTED IN THIS PARTICULAR INSTANCE.

THE FACTS PERTINENT TO YOUR CASE ARE SUMMARIZED AS FOLLOWS:

IN FEBRUARY 1953 YOU ACCEPTED THE POSITION OF EXECUTIVE OFFICER, BUREAU OF STATE SERVICES (COMMUNITY HEALTH), PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. YOU HAVE OCCUPIED SUCH POSITION CONTINUOUSLY SINCE THAT DATE, AND EFFECTIVE JULY 24, 1960, YOU WERE ADVANCED TO THE FIFTH STEP OF GRADE GS-16, WHICH GRADE YOU STILL HOLD. THE TIME OF SUCH ADVANCEMENT THE FIFTH STEP OF GRADE GS-16 WAS THE TOP STEP OF THAT GRADE AND CONTINUED TO BE THE TOP STEP UNTIL ENACTMENT OF PUB.L. 88-426, WHICH ADDED FOUR ADDITIONAL STEPS.

THE QUESTION YOU PRESENT IS WHETHER YOUR SERVICE BETWEEN JULY 24, 1960, AND JULY 5, 1964--- THE EFFECTIVE DATE OF PUB.L. 88-426 FOR PUBLIC HEALTH SERVICE EMPLOYEES--- MAY BE COUNTED FOR PURPOSES OF ADVANCEMENT TO MORE THAN ONE ADDITIONAL STEP INCREASE IN GRADE GS-16.

AS YOU POINTED OUT IN YOUR LETTER, PUB.L. 88-426 DOES NOT SPECIFY WHETHER OR HOW MUCH PAST SERVICE IS CREDITABLE FOR PURPOSES OF ADVANCEMENT TO THE ADDITIONAL STEPS ADDED BY SUCH LAW IN GRADE GS-16. MOREOVER, WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THAT LAW INDICATING THE INTENT OF CONGRESS IN SUCH REGARD.

IN THE ABSENCE OF ANY EXPRESS LANGUAGE IN PUB.L. 88-426 OR CLEAR INDICATION OF LEGISLATIVE INTENT CONCERNING THE AMOUNT OF PAST SERVICE THAT IS CREDITABLE TOWARD THE ADDITIONAL WITHIN GRADE STEPS ADDED TO GRADE GS-16 BY THAT LAW, YOUR QUESTION MUST BE DECIDED UPON THE BASIS OF THE PROVISIONS OF SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, AS ADDED BY SECTION 603 OF PUB.L. 87-793, READING IN PART AS FOLLOWS:

"SEC. 701. (A) EACH OFFICER OR EMPLOYEE COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAS NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF (1) EACH FIFTY-TWO CALENDAR WEEKS OF SERVICE IN SALARY RATES 1, 2, AND 3, OR (2) EACH ONE HUNDRED AND FOUR CALENDAR WEEKS OF SERVICE IN SALARY RATES 4, 5, AND 6, OR (3) EACH ONE HUNDRED AND FIFTY-SIX CALENDAR WEEKS OF SERVICE IN SALARY RATES 7, 8, AND 9, SUBJECT TO THE FOLLOWING CONDITIONS:

"/A) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD; * * *"

YOU SAY IN YOUR LETTER THAT ON AUGUST 30, 1964, YOU WERE ADVANCED TO STEP SIX OF GRADE GS-16, AT WHICH TIME YOU WERE ADVISED BY YOUR AGENCY THAT YOU WERE NOT ENTITLED TO ANY FURTHER STEP INCREASES. WHILE YOUR LETTER DOES NOT SO STATE, WE ASSUME THAT SUCH ADVANCEMENT WAS MADE RETROACTIVELY EFFECTIVE TO JULY 5, 1964, THE EFFECTIVE DATE OF THE ACT (PUB.L. 88-426). YOU ADVANCEMENT TO STEP SIX ON SUCH DATE WOULD RESULT IN YOUR RECEIVING AN EQUIVALENT INCREASE IN COMPENSATION WHICH, UNDER THE QUOTED PROVISIONS OF SECTION 701 OF THE CLASSIFICATION ACT, WOULD PRECLUDE THE GRANTING OF ANOTHER STEP INCREASE UNTIL YOU HAD SERVED THE APPROPRIATE WAITING PERIOD WHICH FOR EMPLOYEES IN STEP SIX WOULD BE TWO ADDITIONAL YEARS FROM THE DATE OF YOUR ADVANCEMENT TO THAT STEP. ACCORDINGLY, IT IS OUR OPINION THAT THE ADVICE GIVEN YOU BY YOUR EMPLOYING AGENCY, THAT YOU WERE NOT ENTITLED TO ANY FURTHER STEP INCREASE AT THE TIME YOU WERE ADVANCED TO STEP SIX, WAS CORRECT.