B-157659, MAR. 11, 1966

B-157659, MAR. 11, 1966

TO GREGORIO P. CHUA, M.D.:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 19, 1966, ASKING FOR RECONSIDERATION OF OUR DECISION B-157659, TO YOU, DATED SEPTEMBER 29, 1965, SUSTAINING OUR EARLIER SETTLEMENT OF JUNE 3, 1965, DENYING YOUR CLAIM FOR ADJUSTMENT OF PAY. YOU CONSIDER THAT YOUR PAY WAS IMPROPERLY ADJUSTED UNDER THE FEDERAL SALARY REFORM ACT OF 1962, PUB.L. 87-793, APPROVED OCTOBER 11, 1962, 76 STAT. 841.

SINCE THE FACTS HAVE BEEN DETAILED IN THE ABOVE CORRESPONDENCE THEY WILL BE DEVELOPED ONLY AS ESSENTIAL TO THE RESOLUTION OF THE QUESTION YOU HAVE POSED. YOU NOW CONTEND THAT YOUR SALARY SHOULD HAVE BEEN FIXED ON THE BASIS OF THE PROVISIONS OF CIVIL SERVICE COMMISSION REGULATIONS, SECTION 530.305/A) (1) (FPM SUPP. 990-1), RATHER THAN UNDER THE PROVISIONS OF FEDERAL PERSONNEL MANUAL LETTER 531-16 OF OCTOBER 11, 1962, THE LATTER BEING APPLICABLE ONLY TO EMPLOYEES OCCUPYING POSITIONS COVERED BY INCREASED MINIMUM RATES UNDER FORMER SECTION 803 OF THE CLASSIFICATION ACT OF 1949 (5 U.S.C. 1133).

IN REGARD TO YOUR ALLEGATION THAT YOUR POSITION WAS NOT SUBJECT TO THE PROVISIONS OF FORMER SECTION 803 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, AUTHORIZING INCREASED MINIMUM RATES, WE POINT OUT THAT SUCH PROVISIONS WERE MADE APPLICABLE TO ALL MEDICAL OFFICERS, GS 602-0 SERIES, ALL SPECIALTIES, AS OF THE FIRST PAY PERIOD AFTER JULY 30, 1955. DEPARTMENTAL CIRCULAR NO. 793, SUPPLEMENT NO. 5, JULY 29, 1955; D.C. NO. 793, SUPPLEMENT NO. 58, NOVEMBER 16, 1959. IT IS ALSO FOR NOTING THAT THE GEOGRAPHIC COVERAGE OF THE MINIMUM RATE RANGES FOR MEDICAL OFFICERS SET FORTH IN FBI LETTER 531-16, IS WORLDWIDE.

THE FACT THAT THE COMPENSATION OF YOUR PARTICULAR POSITION WAS NEVER INCREASED UNDER THE PROVISIONS OF FORMER SECTION 803 OF THE ACT (SINCE YOU WERE ALREADY RECEIVING PAY ABOVE THE MINIMUM RATE) DID NOT EXEMPT YOU FROM THE REGULATIONS OF THE CIVIL SERVICE COMMISSION CONTAINED IN LETTER OF OCTOBER 11, 1962, CITED ABOVE. THE COMMISSION IN APPLYING THE PROVISIONS OF FORMER SECTION 803 OF THE ACT DID SO BY GROUPS OR CLASSES OF POSITIONS. THEREFORE, WE MUST CONCLUDE THAT YOUR POSITION WAS ONE OF A CLASS COVERED BY THE INCREASED MINIMUM RATES OF FORMER SECTION 803, THE SALARY AND STEP IN GRADE THEREOF BEING SUBJECT TO FPM LETTER 531-16 OF OCTOBER 11, 1962.

SECTION 530.305/A) (1), FPM SUPPLEMENT 990-1, WHICH YOU CONSIDER TO BE APPLICABLE IN DETERMINING YOUR RATE OF PAY PROVIDES AS FOLLOWS:

"EXCEPT AS PROVIDED IN SUBPARAGRAPH (2) OF THIS PARAGRAPH, WHEN AN EMPLOYEE IS IN A POSITION TO WHICH A SPECIAL RATE RANGE BECOMES APPLICABLE, THE DEPARTMENT OR AGENCY SHALL FIX HIS RATE AT THE NUMERICAL RANK IN THE SPECIAL RATE RANGE FOR HIS GRADE OR LEVEL WHICH CORRESPONDS TO HIS EXISTING NUMERICAL RANK IN THE RATE RANGE FOR HIS GRADE OR LEVEL.'

AS YOU STATE IN YOUR LETTER THIS REGULATION WHICH BECAME EFFECTIVE ON DECEMBER 15, 1963, FOR THE FIRST TIME PROVIDED FOR FIXING THE RATE OF AN EMPLOYEE COMING INTO THE SPECIAL RATE RANGE AT THE SAME NUMERICAL RANK WHICH CORRESPONDS TO HIS EXISTING NUMERICAL RANK IN THE RATE RANGE FOR HIS GRADE. HOWEVER, AS PREVIOUSLY POINTED OUT, IN OCTOBER 1962 YOU WERE SERVING IN A POSITION COVERED UNDER FORMER SECTION 803 OF THE CLASSIFICATION ACT AND, THEREFORE, YOUR SALARY WAS PROPERLY ADJUSTED UNDER THE 1962 PAY ACT IN ACCORDANCE WITH THE PROVISIONS OF THE COMMISSION'S EARLIER REGULATIONS AS CONTAINED IN FPM LETTER 531-16 OF OCTOBER 11, 1962. ACCORDINGLY, THERE IS NO BASIS FOR MODIFYING OUR DECISION OF SEPTEMBER 29, 1965.