B-156092, FEB 23, 1971

B-156092, FEB 23, 1971

LONGEVITY STEP INCREASE DECISION DISALLOWING CLAIM FOR A LONGEVITY STEP INCREASE IN GRADE GS 9 RETROACTIVE TO SEPTEMBER 1, 1960, TO JIM C. THAXTON INCIDENT TO HIS SERVICE IN THE IMMIGRATION AND NATURALIZATION SERVICE. 33 COMP. GEN. 362 (1954), WHICH HELD THAT AN EMPLOYEE WHO IS ASSIGNED TO ANOTHER POSITION IN A HIGHER GRADE IS ENTITLED TO CREDIT FOR SERVICE IN HIS FORMER LOWER GRADE POSITION WHICH HAD BEEN REALLOCATED WITHOUT A CHANGE IN DUTIES TO A SIMILAR HIGHER GRADE TOWARD THE AGGREGATE 10 YEARS OF SERVICE REQUIRED FOR A LONGEVITY STEP INCREASE BY SECTION 703(B) OF THE CLASSIFICATION ACT, WAS NEVER INTENDED TO REQUIRE RECONSIDERATION OF LONGEVITY CREDITS BASED ON EVENTS TRANSPIRING SUBSEQUENT TO THE DATE A LONGEVITY STEP INCREASE WAS GRANTED. THE CLAIM, THEREFORE, MUST BE DISALLOWED. LONGEVITY STEP INCREASE - RETROACTIVE EFFECT SUSTAINING PRIOR DISALLOWANCE OF CLAIM FOR A LONGEVITY INCREASE IN GRADE GS-9 TO BE EFFECTIVE ON OR ABOUT SEPTEMBER 1, 1960, INCIDENT TO CLAIMANT'S POSITION AS A PATROL INSPECTOR. 33 COMP. GEN. 362 (1954) IS NOT HERE APPLICABLE BECAUSE IT WAS NOT INTENDED TO APPLY TO RECLASSIFICATION ACTIONS OCCURING SUBSEQUENT TO THE TIME AN EMPLOYEE OTHERWISE WAS GRANTED A LONGEVITY INCREASE. THEREFORE, NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF THE CLAIM.

TO MR. JIM C. THAXTON:

YOUR LETTER OF DECEMBER 9, 1970, REQUESTS RECONSIDERATION OF OUR DECISION B-156092, DATED FEBRUARY 26, 1965, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM (SETTLEMENT DATED SEPTEMBER 16, 1964) FOR A LONGEVITY STEP INCREASE IN GRADE GS-9 TO BE EFFECTIVE ON OR ABOUT SEPTEMBER 1, 1960.

THE PERTINENT FACTS OF YOUR CASE HAVE BEEN SET FORTH IN PRIOR CORRESPONDENCE AND SHALL NOT BE REPEATED HERE. IN THE DECISION OF FEBRUARY 26, 1965, WE HELD THAT THE SERVICE WHICH YOU PERFORMED AS PATROL INSPECTOR, GRADE GS-7, PRIOR TO JANUARY 26, 1953, COULD NOT BE COUNTED TOWARD THE 10 YEARS SERVICE REQUIREMENT IMPOSED BY SECTION 703(B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1123(B) (1958 ED.), FOR ENTITLEMENT TO A LONGEVITY STEP INCREASE. WE POINTED OUT THAT THE ABOVE- CITED LAW REQUIRED 10 YEARS OF SERVICE "IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE" AND THAT YOUR SERVICE AS PATROL INSPECTOR, GS-7, WAS NOT EQUIVALENT IN CLASS OR GRADE TO YOUR THEN CURRENT POSITION - IMMIGRANT INSPECTOR, GRADE GS-9.

IN YOUR LETTER OF DECEMBER 9, 1970, YOU ADVISE THAT EFFECTIVE JUNE 28, 1970, THE POSITION OF PATROL INSPECTOR WAS RECLASSIFIED TO GRADE GS 9. SINCE THAT POSITION HAS BEEN MADE EQUIVALENT IN GRADE TO THAT OF IMMIGRANT INSPECTOR, YOU BELIEVE THAT IN ACCORDANCE WITH OUR DECISION PUBLISHED AT 33 COMP. GEN. 362 (1954) YOU NOW ARE ENTITLED TO A LONGEVITY STEP INCREASE IN GRADE GS-9 RETROACTIVE TO SEPTEMBER 1, 1960.

IN THE CITED DECISION WE HELD THAT AN EMPLOYEE WHO IS ASSIGNED TO ANOTHER POSITION IN A HIGHER GRADE IS ENTITLED TO CREDIT FOR SERVICE IN HIS FORMER LOWER GRADE POSITION WHICH HAD BEEN REALLOCATED WITHOUT A CHANGE IN DUTIES TO A SIMILAR HIGHER GRADE TOWARD THE AGGREGATE 10 YEARS OF SERVICE REQUIRED BY SECTION 703(B) OF THE CLASSIFICATION ACT. IF THE RECLASSIFICATION TO WHICH YOU REFER HAD OCCURED PRIOR TO THE TIME YOU OTHERWISE BECAME ELIGIBLE FOR THE LONGEVITY INCREASE IN QUESTION, IT MIGHT BE THAT DECISION WOULD HAVE BEEN APPLICABLE. HOWEVER, WE POINT OUT THAT SUCH DECISION WAS NEVER INTENDED TO REQUIRE RECONSIDERATION OF LONGEVITY CREDITS BASED ON EVENTS TRANSPIRING SUBSEQUENT TO THE DATE A LONGEVITY INCREASE WAS GRANTED.

THEREFORE, IN VIEW OF THE ABOVE YOU MAY NOT BE ALLOWED A LONGEVITY INCREASE RETROACTIVE TO SEPTEMBER 1, 1960.