B-136660, AUGUST 5, 1958, 38 COMP. GEN. 117

CIVILIAN PERSONNEL - RETROACTIVE SALARY INCREASES - PROFESSIONAL AND SCIENTIFIC PERSONNEL RATES OF COMPENSATION FOR PROFESSIONAL AND SCIENTIFIC POSITIONS WHICH WERE ADMINISTRATIVELY ESTABLISHED UNDER PUBLIC LAW 313, 80TH CONGRESS, 61 STAT. 715, 5 U.S.C. 171P, AND WHICH CORRESPOND EXACTLY WITH STATUTORY SALARY RATES FOR POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT MAY BE INCREASED, PURSUANT TO SECTION 7 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, NOT TO EXCEED THE INCREASE FOR STATUTORY RATES, AND WHERE THERE IS NO ADMINISTRATIVE RATE WHICH CORRESPONDS EXACTLY WITH THE STATUTORY RATE AS IT EXISTED PRIOR TO THE INCREASE, A 10 PERCENT INCREASE IS AUTHORIZED WITH THE FIGURES ROUNDED OFF WHERE NECESSARY. PROFESSIONAL AND SCIENTIFIC PERSONNEL WHO ARE RECEIVING SALARIES IN EXCESS OF THE HIGHEST STATUTORY SALARY RATE INCREASED UNDER THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, WHICH IS $17,800, MAY NOT RECEIVE ANY RETROACTIVE SALARY INCREASES WHICH WOULD CAUSE THEIR SALARIES TO EXCEED THE MAXIMUM RATE OF $19,000 PER ANNUM ESTABLISHED UNDER PUBLIC LAW 313, BOTH CONGRESS, 61 STAT. 715, 5 U.S.C. 171P.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 5, 1958:

YOUR LETTER OF JUNE 27, 1958, REQUESTS OUR DECISION CONCERNING THE APPLICATION OF SECTION 7 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, PUBLIC LAW 85-462, 72 STAT. 212, APPROVED JUNE 20, 1958, TO POSITIONS THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY WITHIN THE RANGE PRESCRIBED BY PUBLIC LAW 313, 80TH CONGRESS, APPROVED AUGUST 1, 1947, 61 STAT. 715, AS AMENDED, 5 U.S.C. 171P.

SECTION 7 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, PROVIDES AS FOLLOWS:

SEC. 7. (A) NOTWITHSTANDING SECTION 3679 OF THE REVISED STATUTES, AS AMENDED (31 U.S.C. 665), THE RATES OF COMPENSATION OF OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT AND OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE RATES OF COMPENSATION ARE FIXED BY ADMINISTRATIVE ACTION PURSUANT TO LAW AND ARE NOT OTHERWISE INCREASED BY THIS ACT ARE HEREBY AUTHORIZED TO BE INCREASED, EFFECTIVE ON OR AFTER THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER JANUARY 1, 1958, BY AMOUNTS NOT TO EXCEED THE INCREASES PROVIDED BY THIS ACT FOR CORRESPONDING RATES OF COMPENSATION IN THE APPROPRIATE SCHEDULE OR SCALE OF PAY.

PUBLIC LAW 313, AS AMENDED, PRESCRIBES THE MINIMUM AND MAXIMUM RATES OF COMPENSATION WHICH MAY BE PAID THEREUNDER AS $12,500 AND $19,000, RESPECTIVELY.

IN OUR DECISION OF DECEMBER 28, 1955, 35 COMP. GEN. 374, WE HELD THAT A PROVISION IN THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, PUBLIC LAW 94, 69 STAT. 172, IDENTICAL WITH SECTION 7 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, AUTHORIZED RETROACTIVE SALARY INCREASES TO POSITIONS ESTABLISHED UNDER THE ACT OF AUGUST 1, 1947, PUBLIC LAW 313, AS AMENDED. HOWEVER, THAT DECISION WENT ON TO SAY THAT IN GRANTING SUCH RETROACTIVE INCREASES IT WAS NECESSARY TO GIVE EFFECT TO THE LIMITATIONS CONTAINED IN SECTION 9 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, 69 STAT. 179, WHICH PRECLUDED (1) THE GRANTING OF COMPENSATION INCREASES UNDER THE ACT IN ANY CASE WHEN THE PER ANNUM RATE OF COMPENSATION IS $14,800 OR MORE, AND (2) THE INCREASING OF ANY RATE OF COMPENSATION BY AN AMOUNT WHICH WILL CAUSE SUCH RATE TO BE IN EXCESS OF THE RATE OF $14,800 PER ANNUM. NO SUCH SALARY LIMITATION APPEARS IN THE 1958 SALARY ACT.

YOU POINT OUT THAT THE COMPENSATION RATES FIXED FOR POSITIONS UNDER PUBLIC LAW 313, GENERALLY ARE NOT EXACTLY THE SAME AS THE CLASSIFICATION ACT RATES EVEN WHEN THEY FALL BELOW THE MAXIMUM RATES UNDER THE LATTER ACT. SINCE THE CLASSIFICATION ACT RATES ESTABLISHED BY THE 1958 SALARY INCREASE ACT ARE AS CLOSE TO A 10 PERCENT INCREASE AS WAS POSSIBLE WHILE KEEPING UNIFORM STEPS WITHIN EACH GRADE, AND SINCE, ALSO, OTHER RATES OF COMPENSATION ARE INCREASED A FLAT 10 PERCENT BY THE ACT, YOU DESIRE TO KNOW WHETHER IT WOULD BE CORRECT TO FIGURE THE MAXIMUM RETROACTIVE INCREASES FOR THE PUBLIC LAW 313 POSITIONS AT 10 PERCENT OF THE EXISTING RATES.

WE BELIEVE THE LANGUAGE OF SECTION 7 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 WAS NOT INTENDED TO PRECLUDE A RETROACTIVE PAY INCREASE JUST BECAUSE THERE MAY NOT BE A STATUTORY SALARY RATE INCREASED BY SUCH ACT WHICH CORRESPONDS EXACTLY TO A SALARY RATE FIXED ADMINISTRATIVELY. RATHER, OUR VIEW IS THAT WHEN THERE IS A SALARY RATE FIXED ADMINISTRATIVELY WHICH CORRESPONDS EXACTLY WITH A STATUTORY SALARY IN THE EXECUTIVE BRANCH WHICH IS INCREASED BY THE ACT, THEN THE INCREASE FOR THE POSITION OF WHICH THE SALARY IS FIXED ADMINISTRATIVELY SHOULD NOT EXCEED THE INCREASE FOR SUCH STATUTORY RATE. IF THERE IS NO RATE WHICH CORRESPONDS EXACTLY WITH THE STATUTORY RATE IN THE EXECUTIVE BRANCH AS IT EXISTED PRIOR TO THE SALARY INCREASE ACT, THEN A 10 PERCENT INCREASE IS AUTHORIZED WITH THE FIGURES ROUNDED OFF WHERE NECESSARY, AS WAS DONE WITH THE SCHEDULED RATES UNDER THE CLASSIFICATION ACT OF 1949 AND THE FOREIGN SERVICE ACT OF 1946, AS AMENDED.

WHILE THE 1958 SALARY INCREASE ACT DOES NOT CONTAIN ANY SPECIFIC SALARY LIMITATION IT IS SIGNIFICANT THAT THE HIGHEST STATUTORY SALARY RATE WHICH THE ACT INCREASES IN THE EXECUTIVE BRANCH IS $17,800, NAMELY, THE SALARY FOR THE CHIEF MEDICAL DIRECTOR, IN THE VETERANS ADMINISTRATION. THUS, FOR SALARIES IN EXCESS OF THAT AMOUNT WHICH ARE FIXED ADMINISTRATIVELY THERE ARE NO ,CORRESPONDING" STATUTORY SALARY RATES INCREASED BY THE ACT, AND ANY RETROACTIVE INCREASES WOULD NOT BE AUTHORIZED. OF COURSE, WE UNDERSTAND THAT IN NO EVENT COULD ANY RETROACTIVE INCREASE BE GRANTED TO THE OCCUPANT OF A PUBLIC LAW 313 POSITION WHICH WOULD CAUSE HIS SALARY TO EXCEED THE MAXIMUM RATE OF $19,000 PER ANNUM ESTABLISHED BY SUCH ACT.