B-137091, SEPTEMBER 16, 1958, 38 COMP. GEN. 216

B-137091, SEPTEMBER 16, 1958, 38 COMP. GEN. 216

CIVILIAN PERSONNEL - COMPENSATION - DOWNGRADING - RATES UNDER FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 IN THE ABSENCE OF ANY INDICATION THAT THE SALARY ADJUSTMENT PROVISIONS IN SECTION 2 (B) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 REPEALED OR SUPERSEDED THE SAVED COMPENSATION PROVISIONS IN SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, THE SALARY ADJUSTMENT PROVISIONS ARE NOT REGARDED AS APPLICABLE TO EMPLOYEES WHO ARE ENTITLED TO RECEIVE SAVED COMPENSATION AS THE RESULT OF DOWNGRADING IN RECLASSIFICATION ACTIONS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 16, 1958:

ON AUGUST 12, 1958, YOUR ACTING CHAIRMAN REQUESTED OUR DECISION CONCERNING THE APPLICATION OF SECTION 2 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 203, TO AN EMPLOYEE WHO IS ENTITLED TO A "SAVED" SALARY RATE UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949 AS ADDED BY THE ACT OF JUNE 18, 1956, 70 STAT. 291, 5 U.S.C. 1107. THE PRIMARY QUESTION PRESENTED IS AS OLLOWS:

THE QUESTION IS, FIRST, WHETHER SECTION 2 (B) OF THE SALARY INCREASE ACT SUPERSEDES SECTION 507 OF THE CLASSIFICATION ACT SO FAR AS THE CURRENT INCREASE IS CONCERNED, BY PROVIDING SPECIFICALLY THE AMOUNT OF INCREASE FOR SUCH EMPLOYEES; AND IF THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE, WHETHER SECTION 2 (B) (1) OR (2), OR SECTION 2 (B) (3), PROPERLY APPLIES TO CERTAIN OF SUCH EMPLOYEES WHEN THE LANGUAGE OF BOTH WOULD APPEAR TO BE LITERALLY APPLICABLE.

SECTION 507 OF THE CLASSIFICATION ACT--- PRIOR TO ITS AMENDMENT BY THE ACT OF AUGUST 23, 1958, 72 STAT. 830, PUBLIC LAW 85-737, IS AS FOLLOWS:

EACH OFFICER OR EMPLOYEE SUBJECT TO THIS ACT---

SHALL CONTINUE TO RECEIVE BASIC COMPENSATION AT THE RATE TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH RECLASSIFICATION OF HIS POSITION (INCLUDING ANY INCREASES IN SUCH RATE OF BASIC COMPENSATION PROVIDED BY LAW AT ANY TIME WHILE SUCH OFFICER OR EMPLOYEE IS IN SUCH POSITION) UNTIL (I) HE LEAVES SUCH POSITION OR (II) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF THIS ACT; * * * ( ITALICS SUPPLIED.)

SUBSECTION (B) OF SECTION 2 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, REFERRED TO IN THE QUESTION QUOTED ABOVE, IS AS FOLLOWS:

(B) THE RATES OF BASIC COMPENSATION OF OFFICERS AND EMPLOYEES TO WHOM THIS SECTION APPLIES SHALL BE ADJUSTED AS FOLLOWS:

(1) IF THE OFFICER OR EMPLOYEE IS RECEIVING BASIC COMPENSATION IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION AT ONE OF THE SCHEDULED OR LONGEVITY RATES OF A GRADE IN THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, HE SHALL RECEIVE A RATE OF BASIC COMPENSATION AT THE CORRESPONDING SCHEDULED OR LONGEVITY RATE IN EFFECT ON AND AFTER SUCH DATE.

(2) IF THE OFFICER OF EMPLOYEE IS RECEIVING BASIC COMPENSATION IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION AT A RATE BETWEEN TWO SCHEDULED OR TWO LONGEVITY RATES, OR BETWEEN A SCHEDULED AND A LONGEVITY RATE, OF A GRADE IN THE GENERAL SCHEDULE, HE SHALL RECEIVE A RATE OF BASIC COMPENSATION AT THE HIGHER OF THE TWO CORRESPONDING RATES IN EFFECT ON AND AFTER SUCH DATE.

(3) IF THE OFFICER OR EMPLOYEE (OTHER THAN AN OFFICER OR EMPLOYEE SUBJECT TO PARAGRAPH (4) OF THIS SUBSECTION), IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, IS RECEIVING BASIC COMPENSATION AT A RATE IN EXCESS OF THE MAXIMUM LONGEVITY RATE OF HIS GRADE, OR IN EXCESS OF THE MAXIMUM SCHEDULED RATE OF HIS GRADE IF THERE IS NO LONGEVITY RATE FOR HIS GRADE, HE SHALL RECEIVE BASIC COMPENSATION AT A RATE EQUAL TO THE RATE WHICH HE RECEIVED IMMEDIATELY PRIOR TO SUCH EFFECTIVE DATE, INCREASED BY AN AMOUNT EQUAL TO THE AMOUNT OF THE INCREASE MADE BY THIS SECTION IN THE MAXIMUM LONGEVITY RATE, OR THE MAXIMUM SCHEDULED RATE, AS THE CASE MAY BE, OF HIS GRADE UNTIL (A) HE LEAVES SUCH POSITION, OR (B) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF THE CLASSIFICATION ACT OF 1949, AS AMENDED; BUT, WHEN HIS POSITION BECOMES VACANT, THE RATE OF BASIC COMPENSATION OF ANY SUBSEQUENT APPOINTEE THERETO SHALL BE FIXED IN ACCORDANCE WITH SUCH ACT, AS AMENDED.

REGARDING THE TWO STATUTES QUOTED ABOVE, THE ACTING CHAIRMAN SAYS:

IF THE SALARY INCREASE ACT WERE SILENT WITH RESPECT TO EMPLOYEES RECEIVING "SAVED" CLASSIFICATION ACT RATES, THE PROVISION IN SECTION 507 OF THAT ACT * * * WOULD EVIDENTLY ENTITLE SUCH EMPLOYEES TO THE NEW EQUIVALENT OF THE SAME RATE; THAT IS, AN EMPLOYEE WHO WAS IN THE FIRST OR "A" STEP OF GS-9, $5,440 PER ANNUM, WHEN DOWNGRADED TO GS-8, AND WHOSE AGENCY HAD KEPT HIM AT $5,440 BETWEEN THE FOURTH AND FIFTH STEPS OF GS-8 INSTEAD OF MOVING HIM UP TO THE FIFTH STEP OF GS-8 AS IT COULD HAVE DONE, WOULD BE ENTITLED ONLY TO THE NEW GS-9A RATE, $5,985 PER ANNUM. LIKEWISE, AN EMPLOYEE WHO WAS IN THE SIXTH OR "F" STEP OF GS-9, $6,115 PER ANNUM, WHEN DOWNGRADED TO GS-7, WOULD BE ENTITLED TO THE NEW GS-9F RATE, $6,735.

THE TWO SITUATIONS, MENTIONED IN THE PART JUST QUOTED, ARE FURTHER EXEMPLIFIED AS FOLLOWS:

FOR EXAMPLE, THE EMPLOYEE WHO WAS IN GS-7 AND RECEIVING THE SAVED GS 9ARATE OF $5,440 IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE INCREASE, WAS, IN THE LANGUAGE OF 2 (B) (,"RECEIVING BASIC COMPENSATION * * * AT ONE OF THE SCHEDULED OR LONGEVITY RATES OF A GRADE IN THE GENERAL SCHEDULE," THAT IS, A RATE IN GS-9 WHICH IN THE NEW SALARY TABLE BECAME $5,985. IS EQUALLY TRUE THAT, IN THE LANGUAGE OF SECTION 2 (B) (2), HE WAS "RECEIVING BASIC COMPENSATION * * * AT A RATE * * * BETWEEN A SCHEDULED AND A LONGEVITY RATE OF A GRADE IN THE GENERAL SCHEDULE," AND NOT ONLY IN A GRADE BUT IN THE GRADE IN WHICH HIS POSITION WAS ACTUALLY CLASSIFIED. IF SECTION 2 (B) (2) WERE APPLIED, HIS NEW RATE WOULD BE $6,030.

LIKEWISE, THE EMPLOYEE WHO WAS IN GS-7 AND RECEIVING THE SAVED GS 9F RATE OF $6,115, WAS, IN THE LANGUAGE OF 2 (B) (1),"RECEIVING BASIC COMPENSATION * * * AT ONE OF THE SCHEDULED OR LONGEVITY RATES OF A GRADE IN THE GENERAL SCHEDULE," A RATE IN GS-9 WHICH IN THE NEW SALARY TABLE BECAME $6,735. WAS ALSO, IN THE LANGUAGE OF 2 (B) (3), "RECEIVING BASIC COMPENSATION AT A RATE IN EXCESS OF THE MAXIMUM LONGEVITY RATE OF HIS GRADE" OF GS-7. IF WE APPLY SECTION 2 (B) (3), HIS NEW RATE WOULD BE $6,705.

WHILE PUBLIC LAW 85-737 AMENDED SECTION 507 TO ELIMINATE THE LANGUAGE,"INCLUDING ANY INCREASES IN SUCH RATE OF BASIC COMPENSATION PROVIDED BY LAW AT ANY TIME WHILE SUCH OFFICER OR EMPLOYEE IS IN SUCH POSITION," SECTION 2 OF PUBLIC LAW 85-737 IS TO THE EFFECT THAT ENACTMENT OF THAT LAW SHALL NOT AFFECT THE RIGHT OF ANY EMPLOYEE TO CONTINUE TO BE COMPENSATED UNDER SECTION 507 AS IT EXISTED PRIOR TO SUCH AMENDMENT. THEREFORE, SO FAR AS THE RIGHTS OF THE EMPLOYEES INVOLVED IN THE ACTING CHAIRMAN'S LETTER ARE CONCERNED, THE AMENDMENT TO SECTION 507 MADE BY PUBLIC LAW 85-737 IS NOT OPERATIVE.

IT IS SIGNIFICANT THAT THE LANGUAGE OF SUBSECTION (B) OF SECTION 2 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 IS SUBSTANTIALLY THE SAME AS THAT APPEARING IN SUBSECTION (B) OF SECTION 2 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, 69 STAT. 173, AND APPARENTLY WAS MODELED AFTER SUBSECTION (B) OF SECTION 2 OF THE EARLIER LAW. MOREOVER IT IS CLEAR THAT SUBSECTION (B) OF SECTION 2 OF THE 1955 STATUTE WAS NOT INTENDED TO APPLY TO EMPLOYEES RECEIVING SAVED PAY FOLLOWING A DOWNWARD RECLASSIFICATION OF THEIR POSITIONS BECAUSE AT THE TIME OF ITS ENACTMENT THERE WAS NO STATUTORY AUTHORITY FOR SAVING THE COMPENSATION OF AN EMPLOYEE UPON THE DOWNWARD CLASSIFICATION OF HIS POSITION. THAT PROTECTION WAS FIRST AFFORDED BY THE SAVING PROVISION WHICH WAS ADDED TO THE CLASSIFICATION ACT OF 1949 (SECTION 507) BY THE ACT OF JUNE 18, 1956, AND PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 23, 1958, PUBLIC LAW 85- 737, THE 1956 ACT CONSTITUTED THE SOLE BASIS FOR FIXING THE COMPENSATION PAYABLE TO THE LIMITED CLASS OF EMPLOYEES INCLUDED WITHIN ITS SCOPE--- EMPLOYEES WHOSE POSITIONS ARE DOWNGRADED IN RECLASSIFICATION ACTIONS.

NEITHER SECTION 2 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, NOR ANY OTHER PROVISION OF SUCH ACT, EXPRESSLY REPEALS OR SUPERSEDES THE SAVING PROVISION IN SECTION 507 OF THE CLASSIFICATION ACT AND WE HAVE FOUND NOTHING IN THE HISTORY OF THE 1958 SALARY INCREASE ACT INDICATING THAT THE CONGRESS INTENDED THAT THE PROVISIONS OF SECTION 507 OF THE CLASSIFICATION ACT BE SUPERSEDED BY SECTION 2 (B) OF THE 1958 SALARY INCREASE ACT. ON THE OTHER HAND, THE AMENDMENTS TO SECTION 507 OF THE CLASSIFICATION ACT MADE BY THE ACT OF AUGUST 23, 1958 ( PUBLIC LAW 85-737) CLEARLY INDICATE A CONGRESSIONAL INTENT THAT PERSONS ENTITLED TO SAVE COMPENSATION UNDER SECTION 507 PRIOR TO ENACTMENT OF PUBLIC LAW 85-737 SHOULD CONTINUE TO RECEIVE SAVED COMPENSATION IN THE MANNER AND UNDER THE CONDITIONS PRESCRIBED IN SECTION 507 PRIOR TO ITS AMENDMENT BY PUBLIC LAW 85-737. IN LIGHT OF THE FOREGOING CONSIDERATION, AND SINCE REPEALS BY IMPLICATION ARE NOT FAVORED IN THE LAW, WE HOLD THAT THE GENERAL PROVISIONS OF SUBSECTION (B) OF SECTION 2 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 SHOULD BE CONSIDERED AS HAVING NO APPLICATION TO EMPLOYEES ENTITLED TO SAVED COMPENSATION UNDER THE SPECIFIC AUTHORITY CONTAINED IN SECTION 507 OF THE CLASSIFICATION ACT OF 1949. THAT SECTION (SECTION 507) CONSTITUTES THE SOLE AUTHORITY FOR PAYMENT OF COMPENSATION TO EMPLOYEES SUBJECT TO ITS PROVISIONS.

IN VIEW OF OUR REPLY TO THE PRIMARY QUESTION PRESENTED IN YOUR ACTING CHAIRMAN'S LETTER, THE OTHER QUESTIONS SET FORTH THEREIN APPEAR TO REQUIRE NO ANSWER.