B-169448, APR. 14, 1970

B-169448: Apr 14, 1970

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PRIOR TO PERIODIC STEP INCREASE ALTHOUGH 5 U.S.C. 5336 (B) PROVIDES QUALITY INCREASE IS NOT EQUIVALENT INCREASE WITHIN MEANING OF 5335 (A). SINCE IT IS RULE OF STATUTORY CONSTRUCTION THAT CONGRESSIONAL INTENT IN ANY PART MUST BE DEDUCED FROM READING OF WHOLE STATUTE. INSTRUCTIONS OF CSC HAVE GIVEN EFFECT TO BOTH AFOREMENTIONED PROVISIONS BY AUTHORIZING EMPLOYEE ADVANCED TO STEP 4 BY QUALITY INCREASE TO ADVANCE TO STEP 5 AFTER 104 WEEKS OF SERVICE COMMENCING WITH DATE OF ADVANCEMENT TO STEP 3. SETTLEMENT DISALLOWING ADDITIONAL COMPENSATION IS SUSTAINED. FIRES THIS IS IN REPLY TO YOUR LETTER DATED MARCH 13. THE RECORD SHOWS THAT YOU WERE ADVANCED TO STEP 3 OF PAY GRADE GS-13 IN MAY OF 1968 AND THAT YOU RECEIVED A QUALITY INCREASE TO STEP 4 OF PAY GRADE GS-13.

B-169448, APR. 14, 1970

COMPENSATION--PROMOTIONS--QUALITY INCREASES--PRIOR TO PERIODIC STEP INCREASE ALTHOUGH 5 U.S.C. 5336 (B) PROVIDES QUALITY INCREASE IS NOT EQUIVALENT INCREASE WITHIN MEANING OF 5335 (A), LATTER PROVISION REQUIRES WAITING PERIOD OF 104 WEEKS IN STEP 4 BEFORE ADVANCEMENT TO STEP 5. SINCE IT IS RULE OF STATUTORY CONSTRUCTION THAT CONGRESSIONAL INTENT IN ANY PART MUST BE DEDUCED FROM READING OF WHOLE STATUTE, AND INSTRUCTIONS OF CSC HAVE GIVEN EFFECT TO BOTH AFOREMENTIONED PROVISIONS BY AUTHORIZING EMPLOYEE ADVANCED TO STEP 4 BY QUALITY INCREASE TO ADVANCE TO STEP 5 AFTER 104 WEEKS OF SERVICE COMMENCING WITH DATE OF ADVANCEMENT TO STEP 3, SETTLEMENT DISALLOWING ADDITIONAL COMPENSATION IS SUSTAINED. SEE COMP. GEN. DECS. CITED.

TO MR. SYDNEY J. FIRES

THIS IS IN REPLY TO YOUR LETTER DATED MARCH 13, 1970, REQUESTING RECONSIDERATION OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION AS AN EMPLOYEE OF THE SMALL BUSINESS ADMINISTRATION.

THE RECORD SHOWS THAT YOU WERE ADVANCED TO STEP 3 OF PAY GRADE GS-13 IN MAY OF 1968 AND THAT YOU RECEIVED A QUALITY INCREASE TO STEP 4 OF PAY GRADE GS-13, EFFECTIVE JUNE 28, 1968. YOUR ADMINISTRATIVE OFFICE ADVISED YOU THAT SINCE YOUR QUALITY INCREASE PLACED YOU IN STEP 4, YOU MUST WAIT 104 WEEKS FROM MAY 13, 1968, BEFORE BEING ELIGIBLE FOR A FURTHER STEP INCREASE. THIS ADVICE WAS REAFFIRMED BY THE SETTLEMENT OF THIS OFFICE WHICH DISALLOWED YOUR CLAIM.

YOU CONTEND THAT PURSUANT TO THE PROVISIONS OF 5 U.S.C. 5335 AND 5336, YOU WERE ELIGIBLE FOR A STEP INCREASE 52 WEEKS FROM MAY 13, 1968, AND THAT THE INTERVENING QUALITY INCREASE COULD NOT ALTER THE WAITING PERIOD AND EXTEND IT FROM 52 WEEKS TO 104 WEEKS. YOU BASE YOUR CONCLUSION ON THE WORDING OF 5 U.S.C. 5336 AND THE CONCLUSION REACHED IN 21 COMP. GEN. 855 (1942). YOU STATE THAT UNDER THE RATIONALE FOLLOWED IN THE CERTIFICATE OF SETTLEMENT OF OUR OFFICE YOU WERE SHIFTED FROM YOUR STATUS IN STEP 3 TO A STATUS IN STEP 4 DURING THE PERIOD YOU WERE ACCUMULATING TIME FOR MOVEMENT UNDER STEP 3; THAT AS A RESULT YOUR QUALITY INCREASE WAS NOT IN ADDITION TO WHAT YOU CONTEND YOU ARE ENTITLED UNDER 5 U.S.C. 5335 (A) BUT, RATHER, IT WAS AN ACCELERATION OF YOUR MOVEMENT TO THE STEP CATEGORY THAT YOU ARE PRESENTLY IN. YOU ALSO POINT OUT THAT WHEN A QUALITY INCREASE OCCURS IN THE THIRD OR SIXTH STEPS, IT HAS THE EFFECT OF EXTENDING THE TIME ONE MUST WAIT FOR MOVEMENT TO THE NEXT STEP, AND THAT THIS "PROPOSITION IS APPLICABLE WHENEVER THE QUALITY INCREASE IS GRANTED, UNDER THE CONCLUSION SET FORTH IN THE CERTIFICATE, BECAUSE IT MERELY HAS THE EFFECT OF MOVING AN EMPLOYEE MORE QUICKLY TO THE LAST AND FINAL STEP."

THE REQUIRED WAITING PERIODS FOR STEP INCREASE PURPOSES ARE SET FORTH IN 5 U.S.C. 5335 (A) AS FOLLOWS:

"AN EMPLOYEE PAID ON AN ANNUAL BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE GENERAL SCHEDULE, WHO HAS NOT REACHED THE MAXIMUM RATE OF PAY FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN PAY SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF---

"(1) EACH 52 CALENDAR WEEKS OF SERVICE IN PAY RATES 1, 2, AND 3;

"(2) EACH 104 CALENDAR WEEKS OF SERVICE IN PAY RATES 4,5, AND 6; OR

"(3) EACH 156 CALENDAR WEEKS OF SERVICE IN PAY RATES 7,8, AND 9; SUBJECT TO THE FOLLOWING CONDITIONS:

"(A) THE EMPLOYEE DID NOT RECEIVE AN EQUIVALENT INCREASE IN PAY FROM ANY CAUSE DURING THAT PERIOD; AND

"(B) THE WORK OF THE EMPLOYEE, EXCEPT A HEARING EXAMINER APPOINTED UNDER SECTION 3105 OF THIS TITLE, IS OF AN ACCEPTABLE LEVEL OF COMPETENCE AS DETERMINED BY THE HEAD OF THE AGENCY."

THE FOLLOWING DETAILED PERTINENT INSTRUCTION OF THE CIVIL SERVICE COMMISSION CONCERNING THE WAITING PERIOD FOR A WITHIN-GRADE INCREASE OF AN EMPLOYEE WHO HAS RECEIVED A QUALITY INCREASE APPEARS IN BOOK 531 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2:

"S4-12 QUALITY INCREASES

"E. RELATION TO REGULAR WITHIN-GRADE INCREASE.

QUALITY INCREASES ARE IN ADDITION TO REGULAR WITHIN-GRADE INCREASES AND ARE NOT CONSIDERED TO BE EQUIVALENT INCREASES IN PAY. THIS MEANS THAT AN EMPLOYEE WHO RECEIVES A QUALITY INCREASE DOES NOT THEREBY START A NEW WAITING PERIOD TO MEET THE TIME REQUIREMENTS FOR A REGULAR WITHIN GRADE INCREASE. THE FOLLOWING EXAMPLES ILLUSTRATE THIS POINT:

"(2) A QUALITY INCREASE IS GIVEN TO AN EMPLOYEE IN THE THIRD RATE OF HIS GRADE WHO HAS COMPLETED 40 WEEKS OF CREDITABLE SERVICE TOWARD AN INCREASE TO THE FOURTH RATE. AFTER THE QUALITY INCREASE PLACES HIM IN THE FOURTH RATE, WHICH IS IN A HIGHER WAITING-PERIOD CATEGORY, HE WILL REQUIRE ONLY 64 WEEKS MORE OF CREDITABLE SERVICE TO COMPLETE THE 104 WEEK WAITING- PERIOD REQUIREMENT FOR ADVANCEMENT TO THE FIFTH RATE."

IT IS A RULE OF STATUTORY CONSTRUCTION THAT THE INTENT OF CONGRESS AS EXPRESSED IN ANY PART OF A STATUTE MUST BE GATHERED FROM THE READING OF THE STATUTE AS A WHOLE. SECTIONS 5335 AND 5336 OF TITLE 5 WERE DERIVED FROM SECTION 603, PUBLIC LAW 87-793, AND MUST BE CONSTRUED TOGETHER. SECTION 5335 (A) REQUIRES A WAITING PERIOD OF 104 WEEKS IN STEP 4 BEFORE AN EMPLOYEE MAY BE ADVANCED TO STEP 5; SECTION 5336 (B) PROVIDES THAT A QUALITY INCREASE IS NOT AN EQUIVALENT INCREASE IN PAY WITHIN THE MEANING OF 5 U.S.C. 5335 (A). THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION GIVE EFFECT TO BOTH SECTIONS BY PROVIDING THAT AN EMPLOYEE WHO IS ADVANCED TO STEP 4 BY A QUALITY INCREASE MAY BE ADVANCED TO STEP 5 FOLLOWING 104 WEEKS OF SERVICE AFTER HIS ADVANCEMENT TO STEP 3. THIS APPEARS TO BE IN LINE WITH THE INTENT OF CONGRESS. SEE PAGE 9 OF SENATE REPORT NO. 2120 ON H. R. 7927, WHICH BECAME PUBLIC LAW 87-793, WHEREIN REFERENCE IS MADE TO QUALITY INCREASES AS BEING "SPEEDED-UP WITHIN-GRADE INCREASES." 48 COMP. GEN. 150 (1968). THE VIEW THAT YOUR QUALITY INCREASE WAS BUT AN ACCELERATION TO THE STEP YOU ARE PRESENTLY IN IS NOT INCONSISTENT WITH THIS EXPRESSION OF CONGRESSIONAL INTENT.

IN REGARD TO YOUR REFERENCE TO THE DECISION PUBLISHED AT 21 COMP. GEN 855 (1942), THE STATUTE THEN IN EFFECT DID NOT PROVIDE FOR WAITING PERIODS OF VARYING LENGTH IN THE SAME PAY GRADE SUCH AS NOW SET FORTH IN 5 U.S.C. 5335 (A). FOR EXAMPLE, THE WAITING PERIOD FOR GRADE GS-13 WAS THEN 30 MONTHS FOR ALL STEPS IN THAT GRADE. THE DECISION, THEREFORE, HAS NO APPLICATION TO THE PRESENT CASE.

FOR THE FOREGOING REASONS THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.