B-148317, JAN. 16, 1963
Highlights
ARE APPLICABLE TO YOUR CASE. THE FACTS GIVING RISE TO YOUR CLAIM HERETOFORE HAVE BEEN STATED IN PRIOR CORRESPONDENCE AND NEED NOT BE REPEATED HERE. IT HAS BEEN HELD THAT ONE WHO HOLDS OFFICE IS ENTITLED TO NO MORE THAN THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED WHETHER OR NOT HE PERFORMS THE DUTIES OF AN OFFICE OF HIGHER GRADE. THE COURT STATED THAT: "THE SALARIES FIXED BY CONGRESS ARE THE SALARIES PAYABLE TO THOSE WHO HOLD THE OFFICE AND NOT TO THOSE WHO PERFORM THE DUTIES OF THE OFFICE. WHERE THE PLAINTIFF HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE IS APPOINTED HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER THE LAW.'. IN THE MCLEAN CASE A POSTMASTER SUED TO RECOVER THE SALARY WHICH HE INSISTED SHOULD HAVE BEEN FIXED FOR HIS OFFICE BY THE POSTMASTER GENERAL.
B-148317, JAN. 16, 1963
TO MR. HARRY B. ATKINSON:
THIS REFERS TO YOUR LETTER OF NOVEMBER 20, 1962, WHEREIN YOU SAY THAT YOU DO NOT BELIEVE THAT TWO DECISIONS CITED IN OUR DECISION OF AUGUST 2, 1962, COLEMAN V. UNITED STATES, 100 CT.CL. 41, AND UNITED STATES V. MCLEAN, 95 U.S. 750, ARE APPLICABLE TO YOUR CASE.
THE FACTS GIVING RISE TO YOUR CLAIM HERETOFORE HAVE BEEN STATED IN PRIOR CORRESPONDENCE AND NEED NOT BE REPEATED HERE.
IN OUR DECISION OF AUGUST 2, 1962, B-148317, TO YOU, WE STATED AS FOLLOWS:
"CONCERNING YOUR CONTENTION THAT YOU HAD BEEN DOING FOR A LONG TIME WORK WHICH HAD BEEN CLASSIFIED AT A HIGHER RATE OF PAY OR GRADE LEVEL, IT HAS BEEN HELD THAT ONE WHO HOLDS OFFICE IS ENTITLED TO NO MORE THAN THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED WHETHER OR NOT HE PERFORMS THE DUTIES OF AN OFFICE OF HIGHER GRADE. SEE COLEMEN V. UNITED STATES, 100 CT.CL. 41, UNITED STATES V. MCLEAN, 95 U.S. 750.'
IN THE COLEMAN CASE THE PLAINTIFF SUED THE GOVERNMENT FOR THE DIFFERENCE BETWEEN THE PAY RECEIVED BY HIM IN THE POSITION TO WHICH APPOINTED AND PAY OF THE POSITION WHICH HE ALLEGED HE PERFORMED DURING THE PERIOD IN QUESTION. THE COURT STATED THAT:
"THE SALARIES FIXED BY CONGRESS ARE THE SALARIES PAYABLE TO THOSE WHO HOLD THE OFFICE AND NOT TO THOSE WHO PERFORM THE DUTIES OF THE OFFICE. ONE MAY HOLD THE OFFICE ONLY BY APPOINTMENT BY HIS SUPERIOR, AND THE LAW VESTS IN THE SUPERIOR THE DISCRETION AS TO WHETHER OR NOT APPOINTMENT TO THE OFFICE SHALL BE MADE. WHERE THE PLAINTIFF HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE IS APPOINTED HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER THE LAW.'
IN THE MCLEAN CASE A POSTMASTER SUED TO RECOVER THE SALARY WHICH HE INSISTED SHOULD HAVE BEEN FIXED FOR HIS OFFICE BY THE POSTMASTER GENERAL. THE COURT OF CLAIMS ALLOWED RECOVERY, BUT THE SUPREME COURT REVERSED THE ACTION OF THE COURT OF CLAIMS AND HELD THAT CONGRESS HAD CONFERRED ON THE POSTMASTER GENERAL THE AUTHORITY TO FIX THE SALARY OF THE OFFICE, AND NOT THE COURT OF CLAIMS, AND, THEREFORE, IT WAS HELD THAT CLAIMANT WAS ENTITLED TO RECOVER NO MORE THAN THE SALARY FIXED BY THE POSTMASTER GENERAL.
WE CITED THE ABOVE REFERRED-TO CASES IN OUR DECISION OF AUGUST 2, 1962, TO SHOW THAT REGARDLESS OF THE DUTIES PERFORMED BY A GOVERNMENT EMPLOYEE, THE EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS LEGALLY APPOINTED.
AS PREVIOUSLY POINTED OUT OUR DECISION 30 COMP. GEN. 156, AS AMPLIFIED BY 37 COMP. GEN. 492, REQUIRES THAT AFTER THE POSITION IS FINALLY CLASSIFIED BY THE OFFICER HAVING AUTHORITY TO DO SO, THE INCUMBENT, IF OTHERWISE QUALIFIED, MUST BE PROMOTED WITHIN A REASONABLE TIME AFTER THE DATE OF FINAL POSITION CLASSIFICATION. THE RECORD SHOWS THAT THE CLASSIFICATION OF YOUR POSITION FINALLY WAS ACTED UPON BY THE BRANCH CHIEF ON JUNE 25, 1958, AND THAT YOU WERE PROMOTED TO THE HIGHER GRADE ON JUNE 29, 1958. WITHIN THE PURVIEW OF OUR DECISION YOUR PROMOTION WAS EFFECTED WITHIN A REASONABLE TIME AFTER THE DATE YOUR POSITION WAS CLASSIFIED. THEREFORE YOUR SALARY INCREASE MAY NOT BE MADE EFFECTIVE AT A DATE EARLIER THAT ADMINISTRATIVELY DESIGNATED.
THEREFORE, THE PRIOR ACTION OF OUR OFFICE IN DISALLOWING YOUR CLAIM MUST BE SUSTAINED.