B-167218, AUG. 14, 1969

B-167218, AUG. 14, 1969

CIVIL PAY - COMPENSATION INCREASES - SCIENTISTS DECISION SUSTAINING CLAIMS DIVISION ACTION DENYING CLAIM FOR RETROACTIVE INCREASE IN COMPENSATION TO CONFORM WITH CLASSIFICATION ACT RATES. VISITING SCIENTIST APPOINTED TO SERVICE FELLOWSHIP WHOSE SALARY WAS SET AND INCREASED BY ADMINISTRATIVE ACTION WAS NOT ENTITLED TO THE RETROACTIVE INCREASE AUTHORIZED UNDER PUBLIC LAW 90-206 AND THEREFORE ACTION TO INCREASE STIPENDS EFFECTIVE APRIL 23, 1968 MAY NOT BE GIVEN RETROACTIVE EFFECT.

TO DR. DAVID J. M. MACKENZIE:

WE REGRET THE DELAY IN REPLYING TO YOUR LETTERS OF MAY 15 AND MAY 28, 1969, APPEALING A DECISION OF THE CLAIMS DIVISION OF THIS OFFICE OF MAY 20, 1969, DENYING YOUR CLAIM FOR RETROACTIVE SALARY ADJUSTMENT FOR THE PERIOD OCTOBER 1, 1967, TO APRIL 23, 1968. IT HAS BEEN NECESSARY TO OBTAIN CERTAIN ADDITIONAL INFORMATION FROM THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE CONCERNING THE MATTER AND THIS HAS, IN PART, ACCOUNTED FOR THE LENGTH OF TIME REQUIRED TO GIVE YOUR APPEAL CONSIDERATION.

IT IS OUR UNDERSTANDING, FROM OUR REVIEW OF YOUR LETTERS, THAT YOU FEEL YOU WERE UNJUSTLY DISCRIMINATED AGAINST BY THE UNITED STATES GOVERNMENT BECAUSE YOUR SALARY AS A VISITING SCIENTIST, APPOINTED TO A SERVICE FELLOWSHIP AT THE NATIONAL COMMUNICABLE DISEASE CENTER OF THE PUBLIC HEALTH SERVICE, WAS NOT INCREASED EFFECTIVE AS OF THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER OCTOBER 1, 1967, THE DATE SALARY INCREASES WERE MADE EFFECTIVE FOR MOST EMPLOYEES OF THE FEDERAL GOVERNMENT BY ENACTMENT OF THE POSTAL REVENUE AND FEDERAL SALARY ACT OF 1967, PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967.

IT IS YOUR BELIEF THAT SINCE YOUR SALARY WAS NOT INCREASED ON THE DATE IN QUESTION A SUBSEQUENT ADMINISTRATIVE INCREASE FROM $19,000 PER ANNUM TO $21,000 PER ANNUM, EFFECTIVE APRIL 23, 1968, WHICH YOU RECEIVED, SHOULD HAVE BEEN MADE RETROACTIVE TO OCTOBER 1, 1967. SINCE YOUR REQUESTS THAT THE INCREASE BE MADE RETROACTIVE WERE DENIED, YOUR CLAIM IS FOR THE AMOUNT OF SALARY YOU WOULD HAVE RECEIVED AT THE RATE OF $21,000 PER ANNUM DURING THE PERIOD OCTOBER 1, 1967, TO APRIL 22, 1968.

AS YOU ARE NO DOUBT AWARE, A VARIETY OF COMPENSATION SYSTEMS EXIST IN THE UNITED STATES GOVERNMENT, EACH DESIGNED TO MEET SPECIALIZED REQUIREMENTS OF VARYING KINDS OF EMPLOYMENT SITUATIONS. IN GENERAL, EACH OF THESE COMPENSATION SYSTEMS OPERATES UNDER DIFFERENT REGULATORY PATTERNS PURSUANT TO VARYING STATUTORY REQUIREMENTS. ONE RESULT OF APPLYING DIFFERING PAY SYSTEMS TO DIFFERENT GROUPS OF EMPLOYEES IS THAT SUBSTANTIAL DIFFERENCES DO EXIST BETWEEN THE METHODS BY WHICH SALARY RATES ARE ESTABLISHED, B- 167218 INCREASED AND DECREASED. CONSEQUENTLY, WHEN CERTAIN GOVERNMENT EMPLOYEES RECEIVE SALARY INCREASES AUTOMATICALLY AND, IN THIS PARTICULAR INSTANCE, RETROACTIVELY, DUE TO ENACTMENT OF LEGISLATION WHILE OTHER INDIVIDUALS ALSO COMPENSATED BY THE GOVERNMENT DO NOT RECEIVE COMPARABLE INCREASES, INEQUITIES APPEAR TO EXIST.

WE WISH TO EMPHASIZE THAT IN YOUR CASE THERE IS NO INDICATION WHATEVER OF ANY INTENTION TO DISCRIMINATE AGAINST YOU AS AN INDIVIDUAL OR BECAUSE YOU ARE NOT A UNITED STATES CITIZEN. THE DIFFERENCE IN PROCEDURES FOLLOWED WITH RESPECT TO YOUR SALARY INCREASE AND THOSE FOLLOWED IN THE CASE OF EMPLOYEES COVERED BY THE SALARY INCREASE PROVISIONS OF PUBLIC LAW 90-206 RESULT ENTIRELY FROM THE OPERATION OF LAW.

IT IS OUR UNDERSTANDING THAT YOU WERE APPOINTED AND YOUR SALARY WAS DETERMINED UNDER A BROAD GRANT OF AUTHORITY AVAILABLE TO THE DIRECTOR OF THE PUBLIC HEALTH SERVICE PURSUANT TO LANGUAGE INCLUDED IN SUCCESSIVE APPROPRIATION ACTS FOR THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. WE ENCLOSE A COPY OF PUBLIC LAW 90-132, THE APPROPRIATION ACT FOR THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE FOR FISCAL YEAR 1968, THE YEAR DURING WHICH THE SALARY INCREASE INVOLVED HERE BECAME EFFECTIVE. THE PREAMBLE TO THE APPROPRIATION PROVISIONS FOR THE PUBLIC HEALTH SERVICE (P. 10, 11), YOU WILL FIND THE LANGUAGE MARKED WHICH AUTHORIZES THE APPOINTMENT OF VISITING SCIENTISTS AS SERVICE FELLOWSHIP "AT RATES ESTABLISHED BY THE SURGEON GENERAL, OR THE SECRETARY WHERE SUCH ACTION IS REQUIRED BY STATUTE, NOT TO EXCEED $24,500 PER ANNUM * * *.' ON PAGE 12 UNDER THE HEADING ,COMMUNICABLE DISEASE" THERE WAS APPROPRIATED THE FUNDS FROM WHICH THE PUBLIC HEALTH SERVICE PAID THE SALARIES AUTHORIZED IN THE PREAMBLE.

THE EFFECT OF YOUR APPOINTMENT UNDER THIS PROVISION OF LAW MEANT THAT THE RATE AT WHICH YOUR SALARY WAS ESTABLISHED AND INCREASED DEPENDED ENTIRELY UPON THE DISCRETION OF THE OFFICER TO WHOM WAS DELEGATED THE AUTHORITY OF THE SURGEON GENERAL OR THE SECRETARY TO ACT SUBJECT TO THE LIMITATION OF A MAXIMUM OF $24,500 PER ANNUM. ACCORDING TO THE FILE THAT AUTHORITY APPEARS TO HAVE BEEN DELEGATED TO THE DIRECTOR OF THE NATIONAL COMMUNICABLE DISEASE CENTER. IN OTHER WORDS, YOUR SALARY WAS SET AND INCREASED ENTIRELY BY ADMINISTRATIVE ACTION, WITHOUT THE NECESSITY OF ENACTMENT OF SPECIAL LEGISLATION. B-167218

ON THE OTHER HAND, THOSE EMPLOYEES OF THE GOVERNMENT WHOSE SALARIES WERE INCREASED BY ENACTMENT OF PUBLIC LAW 90-206 RECEIVE THEIR PAY ONLY AT RATES SPECIFICALLY FIXED BY LAW. THESE RATES CANNOT BE CHANGED MERELY AT THE ADMINISTRATIVE DISCRETION OF SUPERVISORS AS WAS THE CASE IN YOUR POSITION.

THIS OFFICE HAS ON A NUMBER OF OCCASIONS AND IN A VARIETY OF SITUATIONS BEEN REQUIRED TO DETERMINE WHETHER A SALARY INCREASE GRANTED BY ADMINISTRATIVE ACTION, AS IN YOUR CASE, COULD BE MADE RETROACTIVE. THE RULE HAS LONG BEEN ESTABLISHED THAT THE EFFECTIVE DATE OF A SALARY CHANGE RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE PROPER AUTHORITY, OR A SUBSEQUENT DATE SPECIFICALLY FIXED. SUCH CHANGE IN SALARY RATES MAY NOT BE MADE EFFECTIVE RETROACTIVELY IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING. 10 COMP. GEN. 514; 25 COMP. GEN. 601.

IN RECENT YEARS THE SALARY INCREASE ACTS FOR GOVERNMENT EMPLOYEES IN GENERAL WHEN MADE RETROACTIVE HAVE CONTAINED PROVISIONS AUTHORIZING THE RATES OF PAY OF OTHER EMPLOYEES FIXED BY ADMINISTRATIVE ACTION TO BE MADE RETROACTIVE TO THE SAME EXTENT AS OTHERWISE PROVIDED BY SUCH ACTS. HOWEVER, THOSE PROVISIONS DID NOT DISTURB THE ADMINISTRATIVE DISCRETION TO DETERMINE WHETHER INCREASES WOULD OR WOULD NOT BE GRANTED AND IF GRANTED WHETHER THEY WOULD BE MADE RETROACTIVE AS PERMITTED BY THE STATUTE. ALTHOUGH SIMILAR AUTHORITY WAS PROVIDED IN PUBLIC LAW 90 206 IT IS OUR UNDERSTANDING, FROM INFORMATION SUPPLIED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, THAT NO ADMINISTRATIVE INTENT EXISTED TO CONFORM THE STIPENDS OF VISITING SCIENTISTS TO INCREASES IN SALARIES AUTHORIZED FOR CLASSIFIED EMPLOYEES. THE INCREASE YOU SUBSEQUENTLY RECEIVED IN APRIL 1968 WAS DETERMINED BY AN ADMINISTRATIVE ACTION HAVING NO RELATIONSHIP TO THE ENACTMENT OF PUBLIC LAW 90-206 AND NO INTENT EVER EXISTED TO MAKE YOUR INCREASE RETROACTIVE. AS IT WAS ENTIRELY WITHIN THE DISCRETION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE NOT TO INCREASE VISITING SCIENTIST STIPENDS TO CONFORM WITH CLASSIFICATION ACT RATES AND AS NO ACTION WAS TAKEN BY THE AGENCY TO DO THIS, THIS OFFICE IS WITHOUT AUTHORITY TO REQUIRE THAT THE INCREASE YOU RECEIVED BE MADE RETROACTIVE. THEREFORE, THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR CLAIM MUST BE SUSTAINED.