B-132580, SEP. 10, 1957

B-132580: Sep 10, 1957

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THAT EXCEPTION WAS BASED ON OUR HOLDING THAT MR. HAYES IS NOT ENTITLED TO SALARY RETENTION UNDER PUBLIC LAW 594. HE WAS ASSIGNED TO A NEWLY-CREATED POSITION WHICH WAS CLASSIFIED BY THE CIVIL SERVICE COMMISSION AT THAT TIME AS GRADE GS-11. THE POSITION WAS ADMINISTRATIVELY RECLASSIFIED TO GRADE GS-13. THE POSITION WAS RECLASSIFIED DOWN TO GS- 12. HAYES' RATE OF PAY WAS ADMINISTRATIVELY CHANGED BACK TO THE MINIMUM OF GRADE GS-13. THIS IS THE ACTION TO WHICH WE HAVE TAKEN EXCEPTION. SECTION (B) OF PUBLIC LAW 594 PROVIDES THAT AN EMPLOYEE WHOSE POSITION WAS RECLASSIFIED TO A LOWER GRADE DURING THE PERIOD JULY 1. - IT BEING REPORTED THAT THERE WERE NO MATERIAL CHANGES IN THE DUTIES AND RESPONSIBILITIES OF HIS POSITION DURING THE TWO-YEAR PERIOD IMMEDIATELY PRECEDING THE RECLASSIFICATION ON JUNE 18.

B-132580, SEP. 10, 1957

TO HONORABLE ERNEST H. FEIDLER, ADMINISTRATOR, NATIONAL GALLERY OF ART:

ON JULY 5, 1957, YOU ASKED US TO RECONSIDER OUR EXCEPTION OF JUNE 4, 1957, WHICH CONCERNED MR. LLOYD D. HAYES, AN EMPLOYEE OF THE NATIONAL GALLERY OF ART. THAT EXCEPTION WAS BASED ON OUR HOLDING THAT MR. HAYES IS NOT ENTITLED TO SALARY RETENTION UNDER PUBLIC LAW 594, 84TH CONGRESS, APPROVED JUNE 18, 1956, 70 STAT. 291.

MR. HAYES HAS BEEN AN EMPLOYEE OF THE GALLERY SINCE JUNE 1941. FEBRUARY 14, 1950, HE WAS ASSIGNED TO A NEWLY-CREATED POSITION WHICH WAS CLASSIFIED BY THE CIVIL SERVICE COMMISSION AT THAT TIME AS GRADE GS-11. ON AUGUST 16, 1954, THE POSITION WAS ADMINISTRATIVELY RECLASSIFIED TO GRADE GS-13. ON JUNE 18, 1955, THE POSITION WAS RECLASSIFIED DOWN TO GS- 12, BY ORDER OF THE CIVIL SERVICE COMMISSION AFTER POST AUDIT. UPON THE ENACTMENT OF PUBLIC LAW 594, MR. HAYES' RATE OF PAY WAS ADMINISTRATIVELY CHANGED BACK TO THE MINIMUM OF GRADE GS-13, EFFECTIVE JULY 29, 1956, PURPORTEDLY PURSUANT TO THE PROVISION OF THAT ACT. THIS IS THE ACTION TO WHICH WE HAVE TAKEN EXCEPTION.

SECTION (B) OF PUBLIC LAW 594 PROVIDES THAT AN EMPLOYEE WHOSE POSITION WAS RECLASSIFIED TO A LOWER GRADE DURING THE PERIOD JULY 1, 1954, TO JUNE 18, 1956, SHALL BE PAID--- SUBJECT TO CERTAIN STATUTORY RESTRICTIONS--- AT THE RATE OF THE HIGHER GRADE, PROVIDED HE HOLDS SUCH POSITION ON ITS ENACTMENT DATE AND THAT HE HAS HELD SUCH POSITION FOR A CONTINUOUS PERIOD OF NOT LESS THAN 2 YEARS ENDING IMMEDIATELY PRIOR TO SUCH ENACTMENT DATE.

WHILE THE RECLASSIFICATION ACTION WHICH DOWNGRADED THIS EMPLOYEE--- IT BEING REPORTED THAT THERE WERE NO MATERIAL CHANGES IN THE DUTIES AND RESPONSIBILITIES OF HIS POSITION DURING THE TWO-YEAR PERIOD IMMEDIATELY PRECEDING THE RECLASSIFICATION ON JUNE 18, 1956--- WOULD SEEM TO FALL WITHIN THE LITERAL MEANING OF THE STATUTE, IT IS A WELL ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT THE OPERATION OF A STATUTE MUST BE RESTRICTED WITHIN NARROWER LIMITS THAN THE WORDING IMPORTED WHERE THE LITERAL MEANING WOULD COVER CASES NOT INTENDED BY THE LEGISLATIVE BODY. BREWER V. BLOUGHER, 14 PET. 178; UNITED STATES V. AMERICAN BELL TELEPHONE COMPANY, 159 U.S. 548; HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457; 6 COMP. GEN. 288; 17 ID. 736; 19 ID. 516.

THE LEGISLATIVE INTENT IN ENACTING PUBLIC LAW 594 APPEARS TO HAVE BEEN TO AVOID THE HARDSHIP CASES RESULTING FROM THE REDUCTION OF THE EMPLOYEE'S RATE OF BASIC COMPENSATION WHERE HE HAS BEEN ENJOYING THAT RATE OVER A CONSIDERABLE PERIOD OF TIME (AT LEAST 2 YEARS) AND WHICH MAY HAVE FORMED THE BASIS OF LONG TIME COMMITMENTS BY HIM. AS MR. HAYES WAS IN RECEIPT OF THE HIGHER PAY OF GS-13 FOR ONLY 9 MONTHS PRIOR TO THE CIVIL SERVICE COMMISSION ACTION, HE WOULD NOT APPEAR TO COME WITHIN THE SPIRIT OR INTENT OF THE LEGISLATION AS DERIVED FROM THE LEGISLATIVE HISTORY OF THIS ACT. -104080, NOVEMBER 29, 1956. THUS, HE IS NOT ELIGIBLE TO SALARY RETENTION UNDER PUBLIC LAW 594, AND IS ENTITLED ONLY TO THE COMPENSATION APPLICABLE TO THE APPROPRIATE STEP IN GRADE GS-12.

THEREFORE, WE MUST SUSTAIN OUR EXCEPTION OF JUNE 4, 1957. THE NOTICE THEREOF, WHICH YOU TRANSMITTED WITH YOUR LETTER, IS HEREBY RETURNED.

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