B-141785, FEB. 24, 1960

B-141785, FEB. 24, 1960

TO MR. LAWRENCE BRADEN:

YOUR LETTER OF JANUARY 7, 1960, RELATES TO OUR OFFICE SETTLEMENT OF OCTOBER 9, 1959, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE COMPENSATION UNDER THE PROVISIONS OF SECTION 2 (B) (9) (A) (II) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT, 1958, 72 STAT. 206.

THE RECORD SHOWS YOU WERE EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL, MEMPHIS, TENNESSEE, AS A NURSING ASSISTANT, GS-2, AT $2,960. MARCH 31, 1958, YOU RECEIVED A REDUCTION-IN-FORCE NOTICE THAT YOU WOULD BE SEPARATED FROM THE SERVICE APRIL 24, 1958. ON THE DATE YOUR SEPARATION WAS TO HAVE BEEN EFFECTED YOU OBTAINED AN APPOINTMENT TO A WAGE BOARD POSITION WITH THE MEMPHIS GENERAL DEPOT, DEPARTMENT OF THE ARMY, AS LABORER, WB-2/2, AT $1.45 PER HOUR. YOU BELIEVE YOU ARE ENTITLED TO PAYMENT AT THE INCREASED SALARY RATE PROVIDED BY THE 1958 PAY ACT FOR GRADE GS-2, FROM APRIL 24, 1958, TO JULY 13, 1958, WHEN YOU RETURNED TO THE VETERANS ADMINISTRATION BY TRANSFER FROM THE DEPARTMENT OF THE ARMY TO A POSITION UNDER THE CLASSIFICATION ACT.

SECTION 2 (2) OF S.67, 84TH CONGRESS, WHICH ULTIMATELY WAS ENACTED AS THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, PUBLIC LAW 94, APPROVED JUNE 28, 1955, 69 STAT. 174, CONTAINS LANGUAGE IDENTICAL WITH THAT CONTAINED IN SECTION 2 (B) (9) (A) (II) OF THE 1958 ACT. IN EXPLAINING THE PURPOSE OF THAT SECTION IN THE DEBATE ON THE BILL. REPRESENTATIVE REES MADE THE STATEMENT (SEE PAGE 7450, JUNE 20, 1955, CONGRESSIONAL RECORD-HOUSE, 84TH CONGRESS/---

"THE COMMITTEE ALSO WROTE IN THE LEGISLATION SPECIFIC PROVISIONS TO MAKE THE INCREASES AVAILABLE TO MANY THOUSANDS OF EMPLOYEES WHO WOULD NOT OTHERWISE HAVE RECEIVED SUCH BENEFITS BECAUSE OF HAVING BEEN TRANSFERRED TO WAGE-BOARD POSITIONS.

"MANY THOUSANDS OF EMPLOYEES PREVIOUSLY TRANSFERRED TO WAGE BOARD POSITIONS UNDER THE CLASSIFICATION ACT OF 1949 OR THE FRINGE BENEFITS LAW OF 1954 WILL HAVE THEIR WAGE-BOARD RATES RECALCULATED TO MAKE CERTAIN THEY RECEIVE THE FULL BENEFITS OF THIS PAY INCREASE ON THE SAME BASIS AS THOUGH THEY HAD NOT BEEN TRANSFERRED TO WAGE-BOARD POSITIONS UNTIL AFTER THE INCREASE BECOMES EFFECTIVE.'

ALSO, IN THE LIGHT OF THE COMMENTS IN HOUSE REPORT 857, 84TH CONGRESS, ON THE BILL WHICH BECAME PUBLIC LAW 94, PAGES 10-12, EXPLAINING THE PURPOSE OF THE SUBSECTION AND THE EXAMPLES GIVEN, THE IMPLICATION EXISTS THAT SECTION 2 (B) OF THE 1958 ACT SEEKS TO CORRECT SOME INEQUITY RESULTING FROM LEGISLATION INVOLVING SOME DEGREE OF COMPULSION ON THE PART OF THE GOVERNMENT SO AS TO SAVE EMPLOYEES TRANSFERRED WITH OR WITHOUT THEIR POSITIONS FROM THE PURVIEW OF THE CLASSIFICATION ACT, 1949, AS AMENDED, TO A PREVAILING WAGE SYSTEM, FROM ANY LOSS OF COMPENSATION RESULTING SOLELY FROM SUCH TRANSFERS. HOWEVER, THE PROXIMATE CAUSE OF YOUR CHANGE TO A WAGE-BOARD POSITION WITH THE DEPARTMENT OF THE ARMY WAS THE SEPARATION ON APRIL 24, 1958, FROM YOUR CLASSIFICATION POSITION WITH THE VETERANS ADMINISTRATION BECAUSE OF A REDUCTION-IN-FORCE ACTION. WHILE YOU SAY YOUR CHANGE BETWEEN AGENCIES WAS EFFECTED AS A TRANSFER AND NOT AS A SEPARATION BECAUSE OF REDUCTION-IN-FORCE ACTION, CIVIL SERVICE REGULATION 2.501 CITED ON STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, CONCERNING TRANSFERS, ACTUALLY REQUIRES A RESIGNATION OR OTHER SEPARATION FROM ONE AGENCY AND AN APPOINTMENT TO ANOTHER WITHOUT BREAK IN SERVICE. THUS, THE TERM "TRANSFER" USED IN A TECHNICAL SENSE STANDING ALONE DOES NOT--- WITHOUT REGARD TO CAUSE--- BRING YOUR CASE WITHIN THE PURVIEW OF THE STATUTE.

ALTHOUGH AS THE RESULT OF YOUR CHANGE TO A PREVAILING RATE SYSTEM YOU RECEIVED A RATE OF COMPENSATION LESS THAN THE RATE YOU WOULD HAVE RECEIVED HAD YOU REMAINED UNDER THE CLASSIFICATION ACT EXCEPT FOR AN INTERVENING REDUCTION-IN-FORCE PROCEEDING IT CANNOT BE SAID THAT YOU WERE RECEIVING A LESSER RATE UPON THE ENACTMENT DATE OF THE 1958 ACT BECAUSE OF THE CLASSIFICATION ACT OR THE SO-CALLED "FRINGE BENEFIT ACT OF 1954.'

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS PROPER AND UPON REVIEW, THE SETTLEMENT IS SUSTAINED.

YOU FURTHER REQUEST INFORMATION AS TO THE ACTION TO BE TAKEN BY YOU IN THE EVENT YOU WOULD LIKE TO APPEAL OUR DECISION. THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT (31 U.S.C. 74), AND THERE IS NO PROCEDURE PRESCRIBED FOR APPEALING FROM SUCH DECISIONS. HOWEVER, WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF 28 U.S.C. 1346, ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.