B-158268, JAN. 21, 1966

B-158268, JAN. 21, 1966

TO SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

WE REFER TO THE UNDER SECRETARY'S LETTER OF DECEMBER 29, 1965, WITH ENCLOSURES, IN WHICH HE ASKS OUR OPINION WHETHER THE SALARY RATES OF DR. MAITLAND BALDWIN AND DR. MURRAY SHEAR, OCCUPYING PROFESSIONAL OR SCIENTIFIC POSITIONS WITH THE NATIONAL INSTITUTES OF HEALTH, MAY BE ADJUSTED RETROACTIVELY TO CORRECT WHAT HE BELIEVES TO BE AN ADMINISTRATIVE ERROR.

THE SALARY RATES OF DR. BALDWIN AND DR. SHEAR ARE FIXED ADMINISTRATIVELY UNDER AUTHORITY OF SECTION 208 (G) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, 42 U.S.C. 210 (G) WHICH, SO FAR AS HERE PERTINENT, READS AS FOLLOWS:

"THE SECRETARY IS AUTHORIZED TO ESTABLISH AND FIX THE COMPENSATION FOR * * * NOT MORE THAN ONE HUNDRED AND FIFTY POSITIONS, OF WHICH NOT LESS THAN ONE HUNDRED AND FIFTEEN SHALL BE FOR THE NATIONAL INSTITUTES OF HEALTH, IN THE PROFESSIONAL, SCIENTIFIC, AND EXECUTIVE SERVICE * * *: PROVIDED, THAT THE RATES OF COMPENSATION FOR POSITIONS ESTABLISHED PURSUANT TO THE PROVISIONS OF THIS SUBSECTION SHALL NOT BE LESS THAN THE MINIMUM RATE OF GRADE 16 OF THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, NOR MORE THAN THE HIGHEST RATE OF GRADE 18 OF THE GENERAL SCHEDULE OF SUCH ACT, AND SHALL BE SUBJECT TO THE APPROVAL OF THE CIVIL SERVICE COMMISSION. POSITIONS CREATED PURSUANT TO THIS SUBSECTION SHALL BE INCLUDED IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES, BUT APPOINTMENTS TO SUCH POSITIONS SHALL BE MADE WITHOUT COMPETITIVE EXAMINATION UPON APPROVAL OF THE PROPOSED APPOINTEE'S QUALIFICATIONS BY THE CIVIL SERVICE COMMISSION OR SUCH OFFICERS OR AGENTS AS IT MAY DESIGNATE FOR THIS PURPOSE. * * *"

FROM THE ENCLOSURES WITH THE UNDER SECRETARY'S LETTER, INCLUDING THE MEMORANDUM OF YOUR GENERAL COUNSEL, IT IS UNDERSTOOD THAT THE NAMES OF ALL OR MOST INCUMBENTS OF THE SO-CALLED "SECTION 208 (G)" POSITIONS EXCEPT THOSE OF DR. BALDWIN AND DR. SHEAR WERE REFERRED TO THE UNITED STATES CIVIL SERVICE COMMISSION FOR APPROVAL OF PAY INCREASES ON A FORMULA BASIS TO PARALLEL THOSE PROVIDED FOR EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT SCHEDULE BY THE FEDERAL EMPLOYEES SALARY ACT OF 1964, PUB.L. 88-426, APPROVED AUGUST 14, 1964, 78 STAT. 400. THE PROPOSED INCREASES WERE APPROVED BY THE COMMISSION, EFFECTIVE AUGUST 14, 1964, THE DATE OF ENACTMENT OF PUB.L. 88-426, AND PRESUMABLY THEREAFTER THE RATES OF THE EMPLOYEES SO INCREASED WERE ADJUSTED RETROACTIVELY TO JULY 5, 1964, PURSUANT TO SECTION 3 (A) OF PUB.L. 88 631, APPROVED OCTOBER 6, 1964.

THE NAMES OF DR. BALDWIN AND DR. SHEAR ARE UNDERSTOOD TO HAVE BEEN WITHHELD BECAUSE OF WHAT THEN WERE CONSIDERED TO BE VALID ADMINISTRATIVE REASONS APPARENTLY RELATING TO ANTICIPATED REALIGNMENT OF THE DUTIES AND RESPONSIBILITIES OF THEIR POSITIONS OR OTHER CONTEMPLATED ADMINISTRATIVE CHANGES. THE ANTICIPATED CHANGES ARE SAID TO HAVE NOT MATERIALIZED BUT AS A CONSEQUENCE OF THE SITUATION DR. BALDWIN'S SALARY INCREASE FROM $20,000 TO $24,500 PER ANNUM DID NOT BECOME EFFECTIVE UNTIL DECEMBER 9, 1964, WHILE THAT OF DR. SHEAR WAS NOT INCREASED TO $23,500 UNTIL DECEMBER 6, 1964.

THE CIVIL SERVICE COMMISSION EXPRESSES THE VIEW THAT HAD THE NAMES OF DR. BALDWIN AND DR. SHEAR BEEN INCLUDED WITH THOSE FOR WHOM IT APPROVED SALARY INCREASES ON AUGUST 14, 1964, IT WOULD HAVE APPROVED ALSO INCREASES FOR THOSE EMPLOYEES.

THE ISSUE RAISED BY THE UNDER SECRETARY'S LETTER IS WHETHER WE ARE CLOTHED WITH AUTHORITY TO NOW APPROVE A RETROACTIVE CHANGE IN THE EFFECTIVE DATE OF THE ADMINISTRATIVE INCREASES SO THAT THEY MAKE TAKE EFFECT JULY 5, 1964.

WE HAVE IN SEVERAL CASES UNDER STATUTES SIMILAR TO 42 U.S.C. 210 (G) AUTHORIZED THE REGULARIZATION OF ADMINISTRATIVE INCREASES MADE WITHOUT THE APPROVAL OF THE CIVIL SERVICE COMMISSION WHEN THE COMMISSION SUBSEQUENTLY HAS DETERMINED THAT IF ITS APPROVAL HAD BEEN SOUGHT AT THE TIME OF THE ADMINISTRATIVE ACTION IT WOULD HAVE BEEN GRANTED. IN SUCH CASES WE HAVE PERMITTED THE IRREGULAR INCREASES TO STAND. SEE OUR DECISION OF SEPTEMBER 17, 1963, B-152382, COPY HEREWITH. CF. 37 COMP. GEN. 87. ALSO, WE HAVE AUTHORIZED RETROACTIVE CORRECTION OF ERRORS IN FIXING SALARY RATES IN CASES WHEN THE EVIDENCE SHOWS THAT THROUGH INADVERTENCE OR CLERICAL MISTAKE THE CLEARLY DEMONSTRATED ADMINISTRATIVE INTENT WAS NOT CARRIED INTO EFFECT. 34 COMP. GEN. 380; 32 ID. 211. THE RULE IS OTHERWISE IF ADMINISTRATIVE ACTION OR FAILURE TO ACT IS NOT OTHERWISE UNLAWFUL AND ACCORDS WITH THE ADMINISTRATIVE INTENT AT THE TIME. SEE 32 COMP. GEN. 463.

IT IS UNDERSTOOD FROM THE RECORD BEFORE US THAT THE NAMES OF DR. BALDWIN AND DR. SHEAR WERE EXCEPTED FROM THE ADMINISTRATIVE RECOMMENDATION FOR SALARY INCREASES WHICH WERE APPROVED BY THE COMMISSION ON AUGUST 14, 1964, FOR REASONS THAT WERE VALID PER SE AT THE TIME AND WHICH PROPERLY MAY BE SAID TO EVIDENCE THE THEN EXISTING ADMINISTRATIVE INTENT. A SIMILAR CONCLUSION APPEARS TO HAVE BEEN REACHED BY THE CIVIL SERVICE COMMISSION.

UNFOLDING EVENTS APPEAR TO HAVE LEAD TO A CHANGE IN ADMINISTRATIVE VIEWS BUT WE ARE UNABLE TO CONCLUDE THAT THE REASONS GUIDING THE ADMINISTRATIVE ACTION IN AUGUST 1964 WERE EITHER ERRONEOUS AT THE TIME OR UNLAWFUL.

IN THE CIRCUMSTANCES, WE WOULD NOT BE WARRANTED IN APPROVING A RETROACTIVE MODIFICATION OF THE EFFECTIVE DATES OF THE SALARY INCREASES FOR DR. BALDWIN AND DR. SHEAR.