B-105611, OCTOBER 22, 1951, 31 COMP. GEN. 149

B-105611, OCTOBER 22, 1951, 31 COMP. GEN. 149

COMPENSATION - WITHIN-GRADE ADVANCEMENTS - ELIGIBILITY AS AFFECTED BY TEMPORARY PROMOTIONS THE COMPENSATION INCREASE RECEIVED BY IMMIGRATION INSPECTORS WHOSE POSITIONS WERE TEMPORARILY ALLOCATED TO HIGHER GRADES--- KNOWN BY THE EMPLOYEES TO BE TEMPORARY--- DID NOT CONSTITUTE "AN EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 25.11 (F) OF THE FEDERAL PERSONNEL MANUAL, AND THEREFORE, SUCH EMPLOYEES UPON RESTORATION TO THEIR FORMER POSITIONS, WHICH IN THE MEANTIME HAD BEEN BROUGHT UNDER THE CLASSIFICATION ACT AND ALLOCATED IN LOWER GRADES, ARE ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS AFTER THE EXPIRATION OF THE REQUIRED WAITING PERIOD FROM THE LAST EQUIVALENT INCREASE RECEIVED IN THEIR REGULAR POSITIONS.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, OCTOBER 22, 1951:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 13, 1951, YOUR REFERENCE A 8, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, REQUESTING DECISION WHETHER THE INCREASE IN COMPENSATION OF CERTAIN IMMIGRATION INSPECTORS UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RECITED CONSTITUTED "AN EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 25.11 (F) PAGE Z1-314 OF THE FEDERAL PERSONNEL MANUAL.

IT APPEARS THAT DEPORTATION HEARINGS PRIOR TO FEBRUARY 20, 1950, HAD BEEN CONDUCTED BY IMMIGRATION INSPECTORS WHOSE RATES OF PAY WERE ESTABLISHED BY THE REED-JENKINS ACT, THE MAXIMUM RATE OF PAY BEING $4,228.80 PER ANNUM. BY DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF SUNG V. MCGRATH ET AL., 339 U.S. 33, SUCH HEARINGS WERE REQUIRED TO BE CONDUCTED UNDER THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 1004, 1006, 1007, WHICH NECESSITATED ADMINISTRATIVE ALLOCATION OF SUCH POSITIONS PURSUANT TO WHICH THEY WERE PLACED IN GS-11 WITH SALARIES OF $5,400 PER ANNUM; AND THAT THE NOTICE OF SUCH ACTION CONTAINED THE FOLLOWING STATEMENT:

THIS TEMPORARY PROMOTION OR ASSIGNMENT NOT TO EXTEND BEYOND MAY 29, 1950, UNLESS EXTENDED BY THE CIVIL SERVICE COMMISSION OR THE APPOINTMENT MADE ABSOLUTE. IF ULTIMATELY FOUND INELIGIBLE BY THE CIVIL SERVICE COMMISSION YOU WILL BE RETURNED TO YOUR FORMER POSITION AND GRADE.

SUBSEQUENT EXTENSIONS WERE AUTHORIZED UNTIL OCTOBER 20, 1950, BUT BY THE SUPPLEMENTAL APPROPRIATION ACT OF 1951, APPROVED SEPTEMBER 27, 1950, P.L. 843, 64 STAT. 1044, SUCH PROCEEDINGS WERE EXEMPTED FROM THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT AND PURSUANT TO SUCH EXEMPTION THE IMMIGRATION INSPECTORS WERE RETURNED TO THEIR FORMER POSITIONS WHICH IN THE MEANTIME HAD BEEN BROUGHT UNDER THE CLASSIFICATION ACT AND ALLOCATED IN GRADES GS-7 AND GS-8.

SECTION 25.11 (F) PAGE Z1-314 OF THE FEDERAL PERSONNEL MANUAL PROVIDES AS FOLLOWS:

EQUIVALENT INCREASE IN COMPENSATION IS THE TOTAL OF ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH IS EQUAL TO OR GREATER THAN THE SMALLEST STEP-INCREASE IN ANY GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING A PERIOD UNDER CONSIDERATION. STEP-INCREASES RESULTING FROM THE APPLICATION OF SECTION 703 AND 802 (B) OF THE ACT ARE EQUIVALENT INCREASES IN COMPENSATION. THE FOLLOWING, AMONG OTHERS, ARE NOT "EQUIVALENT INCREASES IN COMPENSATION: "

(1) ANY INCREASE IN RATES OF BASIC COMPENSATION PROVIDED BY TITLE VI);

(2) AN ADDITIONAL STEP-INCREASE AS A REWARD FOR SUPERIOR ACCOMPLISHMENT; OR AN INCREASE MADE PURSUANT TO SECTION 1002 (B);

(3) AN INCREASE MADE FOR THE SPECIFIC PURPOSE OF CORRECTING AN ERROR IN A PREVIOUS DEMOTION OR REDUCTION IN PAY;

(4) PAYMENT OF A FOREIGN OR A TERRITORIAL POST DIFFERENTIAL OR COST-OF- LIVING ALLOWANCE. ( ITALICS SUPPLIED.)

IN 30 COMP. GEN. 82, IT WAS HELD (QUOTING FROM THE SYLLABUS):

EMPLOYEES WHO RECEIVE PROMOTIONS FOR A DEFINITE OR APPROXIMATE PERIOD OF SHORT DURATION--- KNOWN IN ADVANCE TO BE TEMPORARY--- ARE ENTITLED, UPON RESTORATION TO THEIR POSITION OR POSITIONS OF THE SAME OR A DIFFERENT GRADE FROM THOSE HELD PRIOR TO SUCH PROMOTIONS, TO WITHIN GRADE SALARY ADVANCEMENTS AFTER THE EXPIRATION OF THE REQUIRED WAITING PERIOD FROM THE LAST EQUIVALENT INCREASE RECEIVED IN THEIR REGULAR POSITIONS * * *.

UNDER THE ABOVE-RECITED FACTS AND CIRCUMSTANCES IT IS CONCLUDED, IN LINE WITH THE DECISION, SUPRA, THAT THE INCREASE TO GS-11, WHICH WAS TENTATIVE ONLY AND SUBJECT TO POST-AUDIT BY THE CIVIL SERVICE COMMISSION, AND WHICH WAS SPECIFICALLY DESIGNED AS TEMPORARY, DID NOT CONSTITUTE "AN EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE PURVIEW OF THOSE WORDS AS USED IN SECTION 25.11 (F) PAGE Z1-314 OF THE FEDERAL PERSONNEL MANUAL.