B-155507, NOV. 12, 1964

B-155507, NOV. 12, 1964

TO EDWARD L. KATZENBACH, JR., ACTING ATTORNEY GENERAL, DEPARTMENT OF JUSTICE:

ON OCTOBER 26, 1964, THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION ASKED OUR DECISION REGARDING CERTAIN QUESTIONS ARISING UNDER SECTION 102 (B) (6) OF PUB.L. 88-426, APPROVED AUGUST 14, 1964, WHICH SECTION RELATES TO PROMOTIONS DURING THE RETROACTIVE PERIOD OF THE STATUTE.

THE FACTS IN THE CASES PRESENTED ARE SET FORTH IN THE LETTER AS FOLLOWS:

"ON AUGUST 3, 1964, AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE WAS PROMOTED FROM GS-15, STEP 4 ($17,210), TO GS-16, STEP 5 ($18,000/--- THIS BEING THE APPLICABLE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED UNDER SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED.

"EFFECTIVE WITH THE PASSAGE OF PUBLIC LAW 88-426, AND IN ACCORDANCE WITH SECTION 102 (B) (6), THEREOF, THE EMPLOYEE'S BASIC COMPENSATION WAS ADJUSTED RETROACTIVELY FOR THE PERIOD FROM JULY 5, 1964--- THE EFFECTIVE DATE OF THE ACT FOR THIS DEPARTMENT--- TO AUGUST 15, 1964, AS INDICATED:

CHART

FROM TO

PERIOD GRADE STEP RATE GRADE STEP RATE JULY 5 TO AUG. 2, 1964 15 4 $17,210 15 4 $18,170 AUG. 3 TO AUG. 15, 1964 16 5 18,000 16

2 19,590

"IN ANOTHER INSTANCE THE IMMIGRATION AND NATURALIZATION SERVICE APPLIED THEIR INTERPRETATION OF SECTION 102 (B) (6) TO A PROMOTION EFFECTED AUGUST 3, 1964, FROM STEP 7 OF GS-14 ($16,315), OLD RATE, TO STEP 4 OF GS-15 ($18,170), NEW RATE.'

FACTUALLY, BOTH CASES, AS STATED BY THE ASSISTANT ATTORNEY GENERAL, FALL WITHIN THE PURVIEW OF SECTION 102 (B) (6) OF PUB.L. 88-426. THE LANGUAGE OF THAT SECTION FIRST APPEARED AS SECTION 2 (B) (6) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, 69 STAT. 172 AND LATER, AS SUBSECTION 2 (B) (5) OF THE SALARY INCREASE ACT OF 1958, 72 STAT. 203. THE LEGISLATIVE HISTORY OF THE SECTION WAS DISCUSSED IN 38 COMP. GEN. 188. ALTHOUGH WE DO NOT APPEAR TO HAVE DECIDED A CASE IN POINT THE EFFECT OF THE SECTION AGAIN WAS DISCUSSED IN OUR DECISION OF SEPTEMBER 24, 1964, B-155068, A COPY OF WHICH IS ENCLOSED.

THE INTENT OF THE SECTION IS TO PLACE THE PROMOTED EMPLOYEE IN THE SAME STEP AND RATE THAT HE WOULD HAVE ATTAINED ON THE DATE OF ENACTMENT HAD THE 1964 STATUTE NOT BEEN RETROACTIVE IN EFFECT. THUS, THE SECTION PRECLUDES THE APPLICATION OF THE RULE STATED IN 31 COMP. GEN. 166, QUESTION AND ANSWER 7.

IN THE FIRST CASE REFERRED TO BY THE ASSISTANT ATTORNEY GENERAL'S LETTER, THE EMPLOYEE AS A CONSEQUENCE OF HIS PROMOTION WAS REQUIRED TO BE PLACED IN THE 5TH STEP OF GRADE GS-16 AT $18,000 PER ANNUM. HAD THE STATUTE BEEN PROSPECTIVE ONLY IN EFFECT, THE EMPLOYEE'S RATE IN GRADE GS-16 WOULD HAVE BEEN INCREASED ON THE DATE OF ENACTMENT TO THE RATE FOR THE 5TH STEP OF GRADE GS-16 OF THE NEW SCHEDULE OR $21,555 PER ANNUM,BY VIRTUE OF SUBSECTION 102 (B) (1) OF THE ACT. SUBSECTION 102 (B) (6) ENSURES THAT AN EMPLOYEE PROMOTED UNDER THE RELATED CIRCUMSTANCES WILL RECEIVE THE SAME TREATMENT AS THOUGH THE STATUTE WAS PROSPECTIVE IN OPERATION. IN OTHER WORDS, IT REQUIRES THAT HE BE RETAINED IN THE STEP IN GRADE IN WHICH PLACED PRIOR TO ENACTMENT OF THE STATUTE AND RECEIVE THE INCREASE APPLICABLE TO SUCH STEP FROM THE DATE OF THE PROMOTION. THEREFORE, THE RATE OF $19,590 PAID FOR THE PERIOD AUGUST 3 TO AUGUST 15, 1964, SHOULD BE ADJUSTED TO THE RATE OF $21,555.

IN THE SECOND CASE, THE EMPLOYEE UPON PROMOTION ON AUGUST 3, 1964, WAS REQUIRED BY SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO BE PLACED IN THE 5TH STEP OF GRADE GS-15 AT $17,725 PER ANNUM. VIRTUE OF SECTION 102 (B) (6) OF THE SALARY ACT OF 1964, HE BECAME ENTITLED TO THE RATE CORRESPONDING TO THE SAME STEP UNDER THE NEW SCHEDULE, OR $18,740, AS OF THE DATE OF HIS PROMOTION.