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B-149568, SEP. 28, 1962

B-149568 Sep 28, 1962
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THE RECORD SHOWS THAT THE MESSENGERS WERE PROMOTED OCTOBER 27. THAT STATUTE PROVIDES THAT AN EMPLOYEE WHO IS PROMOTED TO A POSITION IN A HIGHER GRADE SHALL RECEIVE BASIC COMPENSATION AT THE LOWEST RATE OF SUCH HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION BY NOT LESS THAN 1-STEP INCREASE OF THE GRADE FROM WHICH PROMOTED. OR IF THERE IS NO RATE IN SUCH HIGHER GRADE WHICH IS AT LEAST 1-STEP INCREASE ABOVE THE EXISTING RATE OF BASIC COMPENSATION HE SHALL RECEIVE THE MAXIMUM SCHEDULED RATE OF SUCH HIGHER GRADE. 28 U.S.C. 604 (A) PROVIDES THAT YOU SHALL FIX. THE COMPENSATION OF COURT OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS NOT OTHERWISE FIXED BY LAW. THIS CLEAR AUTHORITY IS NOT QUESTIONED BY OUR OFFICE.

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B-149568, SEP. 28, 1962

TO DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

ON JULY 26, 1962, THE ASSISTANT DIRECTOR, MR. JOHN C. AIRHART, REQUESTED THAT WE RECONSIDER THE ACTION OF OUR CIVIL ACCOUNTING AND AUDITING DIVISION IN QUESTIONING THE AUTHORITY OF THE JUDICIAL CONFERENCE OF THE UNITED STATES TO GRANT RETROACTIVE SALARY ADJUSTMENTS IN CONNECTION WITH THE PROMOTION OF CERTAIN MESSENGERS IN THE UNITED STATES COURT OF APPEALS AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

THE RECORD SHOWS THAT THE MESSENGERS WERE PROMOTED OCTOBER 27, 1958, FROM POSITIONS COMPARABLE TO GRADE GS-1 AT THE RATE OF $3,815 PER ANNUM, TO POSITIONS COMPARABLE TO GRADE GS-2 AT THE RATE OF $3,825 PER ANNUM, RESULTING IN AN INCREASE OF ONLY $10 PER ANNUM. A REPORT MADE BY YOUR OFFICE TO THE CHAIRMAN AND THE MEMBERS OF THE COMMITTEE OF SUPPORTING PERSONNEL AND THE COMMITTEE ON COURT ADMINISTRATION, DATED FEBRUARY 12, 1959, SHOWS THAT YOU SET THE FOREGOING SALARIES UNDER YOUR AUTHORITY IN 28 U.S.C. 604 (A) (5), FOLLOWING IN PRINCIPLE THE GENERAL COMPENSATION PROVISIONS OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1132 (B). THAT STATUTE PROVIDES THAT AN EMPLOYEE WHO IS PROMOTED TO A POSITION IN A HIGHER GRADE SHALL RECEIVE BASIC COMPENSATION AT THE LOWEST RATE OF SUCH HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION BY NOT LESS THAN 1-STEP INCREASE OF THE GRADE FROM WHICH PROMOTED, OR IF THERE IS NO RATE IN SUCH HIGHER GRADE WHICH IS AT LEAST 1-STEP INCREASE ABOVE THE EXISTING RATE OF BASIC COMPENSATION HE SHALL RECEIVE THE MAXIMUM SCHEDULED RATE OF SUCH HIGHER GRADE. 28 U.S.C. 604 (A) PROVIDES THAT YOU SHALL FIX, UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, THE COMPENSATION OF COURT OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS NOT OTHERWISE FIXED BY LAW. THIS CLEAR AUTHORITY IS NOT QUESTIONED BY OUR OFFICE.

IT IS NOTED FROM THE REPORT THAT TO ASSIST YOU IN FIXING SALARIES UNDER 28 U.S.C. 604 (A), THE JUDICIAL CONFERENCE APPROVED A PROMOTIONAL PLAN, LAST AMENDED BY IT AT ITS SEPTEMBER, 1954, MEETING, FOR COURT OFFICERS AND EMPLOYEES WHICH PRESCRIBES, IN EFFECT THAT AN ADDITIONAL STEP INCREASE (TO BE KNOWN AS A LONGEVITY-STEP INCREASE) BEYOND THE MAXIMUM SCHEDULED RATE OF THE GRADE WILL BE GRANTED TO EACH OFFICER OR EMPLOYEE FOR EACH 3 YEARS OF CONTINUOUS SERVICE COMPLETED BY HIM AT SUCH MAXIMUM RATE OR AT A RATE IN EXCESS THEREOF. YOU POINT OUR IN YOUR REPORT THAT TO INCREASE THE SALARIES OF THE MESSENGERS HERE INVOLVED TO $3,920 PER ANNUM, WOULD REQUIRE AN EXCEPTION OR AN EXTENSION TO THIS PROMOTIONAL PLAN.

BASED UPON YOUR REPORT AND THE RECOMMENDATION OF THE FOREGOING COMMITTEES, NEITHER OF WHICH CONTAINED LANGUAGE THAT THE INCREASE BE MADE RETROACTIVE, THE JUDICIAL CONFERENCE ON MARCH 17, 1959, DIRECTED THAT THE MESSENGERS HERE INVOLVED, BY REASON OF THEIR LONG SERVICE, WERE TO BE PLACED IN THE FIRST LONGEVITY STEP OF GRADE GS-2 AT THE ANNUAL SALARY OF $3,920 AND THAT SIMILAR ACTION SHOULD BE TAKEN AS A MATTER OF POLICY FOR RESOLVING COMPARABLE INEQUITIES WHICH MAY ARISE IN THE FUTURE. SUCH AUTHORIZATION IS CONTAINED IN THE REPORT OF THE PROCEEDINGS OF A SPECIAL SESSION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, MARCH 16, 17, 1959, PAGE 12. IN A LETTER DATED MARCH 17, 1962, FROM THE HONORABLE JOHN BIGGS, JR., THEN CHAIRMAN OF THE COMMITTEE ON SUPPORTING PERSONNEL, HE SAYS THAT IT WAS THE INTENT OF THE COMMITTEES IN THEIR REPORT AND THE JUDICIAL CONFERENCE IN ITS DETERMINATION THAT SUCH INCREASES BE RETROACTIVE. THE SUPPLEMENTAL INCREASES DIRECTED BY THE CONFERENCE WERE MADE RETROACTIVELY EFFECTIVE TO OCTOBER 27, 1958. IT IS ONLY THE RETROACTIVE ASPECT OF THE INCREASE THAT IS IN QUESTION.

THE FIRST SALARY RATE INCREASE OF $10 PER ANNUM WAS MADE IN CONSONANCE WITH THE PROMOTIONAL PLAN, REFERRED TO ABOVE, AND THEREFORE IT WAS A VALID RATE FIXING THE OBLIGATION OF THE UNITED STATES AND THE RIGHTS OF THE EMPLOYEES. THE RATE AUTHORIZED BY THE JUDICIAL CONFERENCE DIRECTIVE DATED MARCH 17, 1959, AND FIXED BY YOU, LIKEWISE APPEARS TO HAVE BEEN A VALID RATE. HOWEVER, THE ACTION IN GIVING RETROACTIVE APPLICATION TO THAT RATE LONG HAS BEEN REGARDED AS CONTRARY TO LAW, EITHER BECAUSE IT SEEKS TO VARY THE TERMS OF A CONTRACT OF EMPLOYMENT IN A WAY PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES, OR BECAUSE IT GRANTS A GRATUITY WHICH CANNOT BE DONE UNLESS EXPRESSLY AUTHORIZED BY LAW. THAT RULE CONSISTENTLY HAS BEEN FOLLOWED BY THE COMPTROLLER OF THE TREASURY AND BY OUR OFFICE. 39 COMP. GEN. 583; 32 ID. 315, 316; 2 ID. 45; 24 COMP. DEC. 582.

WHILE DOUBTLESS YOU ARE AWARE THAT UNDER EXISTING LAW OUR OFFICE HAS NO AUTHORITY TO WAIVE OVERPAYMENTS OF THE NATURE HERE CONCERNED YOU MAY BE INTERESTED IN H.R. 4131, 87TH CONGRESS WHICH HAS PASSED THE HOUSE OF REPRESENTATIVES AND WHICH, WE UNDERSTAND, NOW IS BEING CONSIDERED BY THE JUDICIARY COMMITTEE OF THE SENATE. THAT BILL, IF ENACTED INTO LAW AS IT PASSED THE HOUSE, WOULD BE RETROSPECTIVE IN HERE INVOLVED. IN VIEW OF THE POSSIBILITY OF THAT BILL PASSING IN THIS SESSION OF CONGRESS AND THE POSSIBLE APPLICATION THEREOF TO THESE SITUATIONS WE WILL NOT OBJECT TO YOUR WITHHOLDING COLLECTION ACTION TO SEE WHETHER THE BILL IS ENACTED INTO POSITIVE LAW. HOWEVER, IF IT FAILS OF PASSAGE PROMPT STEPS SHOULD THEN BE TAKEN TO EFFECT RECOVERY OF THE OVERPAYMENTS ..END :

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