B-132580, OCT. 22, 1957

B-132580: Oct 22, 1957

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NATIONAL GALLERY OF ART: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11. IS NOT ENTITLED TO THE SALARY RETENTION BENEFITS AUTHORIZED BY THE ACT OF JUNE 18. SECTION (B) OF PUBLIC LAW 594 PROVIDES THAT AN EMPLOYEE WHOSE POSITION WAS RECLASSIFIED TO A LOWER GRADE DURING THE PERIOD JULY 1. PROVIDED HE HOLDS SUCH POSITION ON ITS ENACTMENT DATE AND THAT HE WAS HELD SUCH POSITION FOR A CONTINUOUS PERIOD OF NOT LESS THAN TWO YEARS ENDING IMMEDIATELY PRIOR TO SUCH ENACTMENT DATE. 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 GRADE GS-12 BY ORDER OF THE CIVIL SERVICE COMMISSION AFTER POST AUDIT.

B-132580, OCT. 22, 1957

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

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11, 1957, REGARDING OUR DECISION OF SEPTEMBER 10, 1957, B-132580, IN WHICH WE HELD THAT MR. LLOYD D. HAYES, AN EMPLOYEE OF THE NATIONAL GALLERY OF ART, IS NOT ENTITLED TO THE SALARY RETENTION BENEFITS AUTHORIZED BY THE ACT OF JUNE 18, 1956, 70 STAT. 291, PUBLIC LAW 594, 84TH CONGRESS. YOU URGE THAT IN VIEW OF THE CIRCUMSTANCES OF THIS CASE THE DECISION BE GIVEN PROSPECTIVE RATHER THAN RETROACTIVE APPLICATION.

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 WAS HELD SUCH POSITION FOR A CONTINUOUS PERIOD OF NOT LESS THAN TWO YEARS ENDING IMMEDIATELY PRIOR TO SUCH ENACTMENT DATE.

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 GRADE GS-12 BY ORDER OF THE CIVIL SERVICE COMMISSION AFTER POST AUDIT. UPON 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 PROVISIONS OF THAT ACT. THIS IS THE ACTION WHICH WE HAVE HELD TO BE IMPROPER.

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 WORKING IMPORTED WHERE THE LITERAL MEANING WOULD COVER CASES NOT INTENDED BY THE LEGISLATIVE BODY. THE LEGISLATIVE INTEND 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 TWO YEARS) AND WHICH MAY HAVE FORMED THE BASIS OF LONG TIME COMMITMENTS BY HIM. AS MY. HAYES WAS IN RECEIPT OF THE HIGHER PAY OF GRADE GS-13 FOR ONLY NINE 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. WE, THUS, HELD 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.

THE OVERPAYMENTS, HOWEVER, SEEM TO HAVE BEEN MADE UNDER WHAT THEN APPEARED TO BE A NOT UNREASONABLE CONSTRUCTION OF PUBLIC LAW 594. ACCORDINGLY, IN VIEW OF THE ADMINISTRATIVE PROBLEMS FLOWING FROM PUBLIC LAW 594, THE ABSENCE OF INTERPRETIVE DECISIONS AND GUIDING REGULATIONS, AND SINCE IT APPEARS THAT CORRECTIVE ACTION HAS BEEN TAKEN PURSUANT TO THE DECISION OF SEPTEMBER 10, 1957, TO ADJUST THE EMPLOYEE'S SALARY TO THE PROPER RATE, WE SHALL NOT REQUIRE ADJUSTMENT OF THE ..END :

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