B-155336, OCT. 15, 1964

B-155336, OCT. 15, 1964

TO THE HONORABLE JOHN W. MACY, JR., CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF OCTOBER 6, 1964, ASKS OUR DECISION WHETHER CERTAIN HEARING EXAMINERS WHOSE POSITIONS WERE DETERMINED TO BE PROPERLY ALLOCABLE FROM GRADE GS-15 TO GRADE GS-16 IN APRIL 1963 BUT WHO COULD NOT BE PROMOTED UNTIL JULY 1964 BECAUSE OF THE UNAVAILABILITY OF AUTHORIZED POSITIONS IN GRADE GS-16 NOW MAY BE CREDITED WITH THE SERVICE RENDERED DURING THAT INTERVENING PERIOD TOWARD STEP INCREASES IN THEIR PRESENT GRADE.

SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY SECTION 603, PUB.L. 87-793, APPROVED OCTOBER 11, 1962, PROVIDES 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:"

YOUR STATEMENT OF THE FACTS AND VIEW OF THE LAW APPLICABLE TO THESE CASES ARE EXPRESSED IN YOUR LETTER AS FOLLOWS:

"A NUMBER OF HEARING EXAMINERS WERE NOTIFIED IN APRIL, 1963, THAT THEIR POSITIONS WERE PROPERLY ALLOCABLE TO GRADE GS-16, BUT THAT NOT ALL OF THEM COULD BE PROMOTED TO GS-16 BECAUSE OF THE STATUTORY LIMIT ON THE NUMBER OF POSITIONS WHICH COULD BE PLACED IN THAT GRADE. A LIMITED NUMBER WERE PROMOTED AT THAT TIME, AND THE REMAINDER WERE PROMOTED IN JULY, 1964, WHEN THE FEDERAL EMPLOYEES SALARY ACT OF 1964, SECTION 103 (B), INCREASED THE NUMBER OF HEARING EXAMINER POSITIONS WHICH COULD BE PLACED IN GS-16.

"THE DIFFERENCE IN TIME OF PROMOTION RESULTS IN A DIFFERENCE WITH RESPECT TO WITHIN-GRADE INCREASES OR THE RATE IN THE GRADE IN WHICH THE LATER- PROMOTED EXAMINERS ARE PLACED. THE COMMISSION HAS CAREFULLY CONSIDERED REQUESTS RECEIVED THROUGH THE FEDERAL TRIAL EXAMINERS CONFERENCE, BUT HAS BEEN UNABLE TO DETERMINE ANY AUTHORITY UNDER WHICH THE PERIOD BETWEEN THE DATE OF NOTIFICATION IN APRIL, 1963, AND THE PROMOTION IN JULY, 1964, COULD BE CREDITED TOWARD WITHIN-GRADE INCREASES OR RATE IN GRADE IN GS- 16.

"THE COMPENSATION OF HEARING EXAMINERS IS REQUIRED BY SECTION 11 OF THE ADMINISTRATIVE PROCEDURE ACT TO BE PRESCRIBED BY THE COMMISSION INDEPENDENTLY OF AGENCY RECOMMENDATIONS OR RATINGS AND IN ACCORDANCE WITH THE CLASSIFICATION ACT, EXCEPT THAT PROVISIONS AS TO EFFICIENCY RATINGS ARE NOT APPLICABLE (5 U.S.C. 1010). BECAUSE OF THE REQUIREMENT THAT THE COMMISSION PRESCRIBE THEIR COMPENSATION IN ACCORDANCE WITH THE CLASSIFICATION ACT, WE CONCLUDED THAT THEIR RATES ON THE DATE OF PROMOTION MUST BE FIXED UNDER SECTION 802 (B) OF THAT ACT (5 U.S.C. 1132 (B) (, AND THAT THE INCREASE THUS RECEIVED WOULD BE AN "EQUIVALENT INCREASE" UNDER SECTION 701 (A) OF THE ACT (5 U.S.C. 1121 (A) ( WHICH WOULD PREVENT ANY SERVICE PRIOR TO THAT DATE FROM BEING CREDITED TOWARD AN INCREASE TO THE NEXT RATE.'

WE HAVE THOROUGHLY EXAMINED THE RECORD AND LAW APPLICABLE TO THESE CASES AND WE FIND NO BASIS FOR ANY VIEW OTHER THAN THAT EXPRESSED IN YOUR LETTER.

REGARDLESS OF THE FACT THAT THE POSITIONS OF THESE EMPLOYEES WERE DETERMINED IN APRIL 1963 TO BE ALLOCABLE TO GRADE GS-16, THE INCUMBENTS OF THE POSITIONS, BECAUSE OF THE CIRCUMSTANCES THEN CONTROLLING, COULD NOT HAVE BEEN AND WERE NOT PROMOTED TO THE HIGHER GRADE UNTIL JULY 1964, WHEN FURTHER GRADE GS-16 POSITIONS WERE MADE AVAILABLE BY STATUTE. WE MUST ASSUME THAT AT THAT TIME THEY RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION WITHIN THE PURVIEW OF SECTION 701 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1121, FROM WHICH THEIR RIGHTS TO STEP INCREASES MUST STEM. THAT BEING THE CASE A NEW WAITING PERIOD FOR STEP INCREASES IN GRADE GS-16 BEGAN EFFECTIVE WITH THE DATE OF THE PROMOTIONS AND ELIMINATED ANY CREDIT FOR SERVICE IN GRADE GS 15.