B-172302, JUL 13, 1971, 51 COMP GEN 30

B-172302, JUL 13, 1971, 51 COMP GEN 30

COMPENSATION - RATES - HIGHEST PREVIOUS RATE - ADMINISTRATIVE DISCRETION THE RETROACTIVE ADJUSTMENT IN THE PAY RATE OF AN EMPLOYEE WHO UPON REEMPLOYMENT IN A GS-3 POSITION FOLLOWING RESIGNATION FROM A GS-6, STEP 4, POSITION IS PLACED IN STEP 10 UNDER THE HIGHEST-PREVIOUS RATE RULE TO STEP 1 IN ACCORDANCE WITH AN ADMINISTRATIVE REGULATION RESTRICTING THE USE OF THE HIGHEST-PREVIOUS RATE RULE MAY NOT BE REVERSED AS THE APPOINTMENT TO GS-3, STEP 10, WAS NOT AN ADMINISTRATIVE WAIVER OF THE ADMINISTRATIVE RESTRICTION ON THE USE OF THE HIGHEST-PREVIOUS RATE RULE, NOR MAY THE ORIGINAL PAY-SETTING ACTION BE AFFIRMED BY A REGULATING OR HIGHER LEVEL, SINCE THE DISTINCTIONS RECOGNIZED IN 30 COMP. GEN. 492 BETWEEN STATUTORY AND SO-CALLED PURELY ADMINISTRATIVE REGULATIONS NO LONGER APPLY IN VIEW OF CONTRARY COURT CASES AND THE FACT THAT B-158880 CHANGED THE RULE IN 30 COMP. GEN. 492. HOWEVER, OVERPAYMENTS RECEIVED IN GOOD FAITH BY THE EMPLOYEE MAY BE WAIVED UNDER 5 U.S.C. 5584.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JULY 13, 1971:

WE REFER FURTHER TO YOUR LETTER OF MARCH 19, 1971, CONCERNING THE RIGHTS OF AN EMPLOYEE WHOSE PAY ON REINSTATEMENT WAS SET UNDER THE HIGHEST- PREVIOUS-RATE RULE AND THEREAFTER REDUCED PURSUANT TO AN AGENCY INTERNAL REGULATION.

YOU STATE THAT THE EMPLOYEE WHO HAD RESIGNED ON SEPTEMBER 26, 1969, AT SCOTT AIR FORCE BASE, ILLINOIS, AS A GS-6, STEP 4, $7,569 A YEAR, WAS OFFERED AND ACCEPTED AT TINKER AIR FORCE BASE, OKLAHOMA, A GS-3 POSITION WITH SALARY SET AT STEP 10, $6,393 A YEAR. SHE WAS REINSTATED AT THAT RATE ON MARCH 9, 1970, BUT ON MARCH 30, 1970, WAS INFORMED THAT DUE TO THE APPLICABLE ADMINISTRATIVE REGULATION SHE COULD RECEIVE ONLY THE MINIMUM RATE OF GS-3, $4,917 A YEAR. YOU REPORT HER PAY RATE WAS RETROACTIVELY ADJUSTED ACCORDINGLY.

THE ADMINISTRATIVE REGULATION IN QUESTION WAS ISSUED BY HEADQUARTERS AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, UNDER DATE OF DECEMBER 24, 1969. AMONG OTHER THINGS, IT RESTRICTED THE USE OF THE HIGHEST-PREVIOUS-RATE RULE TO CERTAIN SPECIFIED SITUATIONS NOT HERE INVOLVED. WE ASSUME IN THE ABSENCE OF SOME INDICATION TO THE CONTRARY THAT THE REGULATIONS OF DECEMBER 24, 1969, HAD BEEN RECEIVED BY TINKER AIR FORCE BASE ON OR BEFORE MARCH 9, 1970, THE EFFECTIVE DATE OF THE REINSTATEMENT.

THE PAPERS ENCLOSED WITH YOUR LETTER SHOW THE DALLAS REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION ON APPEAL OF THE EMPLOYEE FOUND THAT THE ADVERSE ACTION PROCEDURES OF PART 752 OF THE COMMISSION'S REGULATIONS APPLIED TO THE CORRECTIVE ACTION CHANGING HER SALARY FROM STEP RATE 10 TO STEP RATE 1, RETROACTIVELY. SUCH FINDING WAS BASED ON THE ASSUMPTION THAT (A) THE PAY RATE ORIGINALLY ESTABLISHED UPON REEMPLOYMENT WAS NOT ILLEGAL PER SE AND (B) THE AGENCY HAD A CHOICE TO CORRECT THE ACTION OR LET IT STAND.

THE DEPARTMENT OF THE AIR FORCE HAS APPEALED TO THE CIVIL SERVICE COMMISSION THE DECISION OF THE DALLAS REGIONAL OFFICE ON THE GROUND THAT THE AGENCY MUST ABIDE BY ITS REGULATIONS AND CANNOT DISREGARD THEM IN CERTAIN INDIVIDUAL CASES AND ENFORCE THEM IN OTHERS. THE DEPARTMENT APPARENTLY FEELS THIS PRINCIPLE IS APPLICABLE REGARDLESS OF WHETHER THE REGULATION IS STATUTORY (PURSUANT TO, OR IN EXECUTION OF, A SPECIFIC STATUTE) OR ADMINISTRATIVE (PURSUANT TO GENERAL STATUTORY AUTHORITY OR EMANATES OUT OF REGULATORY AUTHORITY REPOSED IN ANOTHER AGENCY). THUS, THE DEPARTMENT'S POSITION IS THAT TINKER AIR FORCE BASE WAS PRECLUDED BY REGULATIONS FROM SETTING THE EMPLOYEE'S SALARY IN EXCESS OF THE MINIMUM OF THE GRADE TO WHICH REINSTATED.

YOU CITE 30 COMP. GEN. 492 (1951) AS INVOLVING A SIMILAR SITUATION AND ASK WHETHER THAT DECISION HAS BEEN OVERRULED OR MODIFIED. IN THAT CASE AN EMPLOYEE WAS PROMOTED UPON REALLOCATION OF HIS POSITION. THE SALARY WAS FIXED AT A RATE OF $5,800 A YEAR CONSISTENT WITH THE HIGHEST PREVIOUS-RATE RULE AS AUTHORIZED BY THE CIVIL SERVICE COMMISSION REGULATIONS BUT NOT IN ACCORD WITH AGENCY REGULATIONS WHICH WOULD HAVE LIMITED THE RATE CHANGE UPON AN UPWARD GRADE REALLOCATION TO THE LOWEST RATE OF THE HIGHER GRADE WHICH EXCEEDS THE EXISTING RATE BY NOT LESS THAN THE EQUIVALENT OF ONE STEP INCREASE OF THE LOWER GRADE. THE CASE IN EFFECT HELD THAT THE ADMINISTRATIVE ACTION - WHICH WAS LEGAL WITHIN THE TERMS OF THE HIGHEST- PREVIOUS-RATE RULE - CONSTITUTED AN AUTHORIZED WAIVER OF THE MORE RESTRICTIVE ADMINISTRATIVE REGULATIONS. IN SUPPORT OF THAT DECISION THE CASE CITED 21 COMP. DEC. 482 (1915); 1 ID. 13 (1921); 4 ID. 767 (1925); AND B-74921, APRIL 5, 1949. 23 COMP. GEN. 941 (1944) WAS CITED FOR COMPARISON PURPOSES.

YOU EXPRESS THE VIEW THAT AN AGENCY HEAD WHO HAS CERTAIN DISCRETION IN SETTING PAY RATES MAY AFFIRM A RATE (WITHIN SUCH DISCRETION) AT WHICH AN APPOINTMENT WAS MADE, NOTWITHSTANDING HIS CONTRARY INSTRUCTIONS TO HIS SUBORDINATES (I.E., INTERNAL REGULATIONS) WHICH DIRECTED A DIFFERENT METHOD OF SETTING A RATE.

YOU SPECIFICALLY ASK (1) WHETHER THE APPOINTMENT AT THE RATE OF GS-3, STEP 10, $6,393 A YEAR, WAS AN ADMINISTRATIVE WAIVER OF THE ADMINISTRATIVE RESTRICTION ON THE USE OF THE HIGHEST-PREVIOUS-RATE RULE, OR (2) IN THE ALTERNATIVE, WHETHER THE ORIGINAL PAY-SETTING ACTION MAY BE AFFIRMED BY THE REGULATING LEVEL OR HIGHER LEVEL IN THE DEPARTMENT.

YOU REFER TO 37 COMP. GEN. 820 (1958) AS AN EXAMPLE OF OUR DECISIONS HOLDING THAT CERTAIN REGULATIONS CANNOT BE WAIVED. YOU IMPLY SUCH DECISIONS APPEAR TO INVOLVE ONLY STATUTORY REGULATIONS. THE DISTINCTIONS FORMERLY MADE IN OUR DECISIONS PRIOR TO 1958 BETWEEN STATUTORY REGULATIONS AND SO-CALLED PURELY ADMINISTRATIVE REGULATIONS ARE NO LONGER REGARDED AS APPLICABLE IN ALL RESPECTS IN VIEW OF SUBSEQUENT COURT CASES. SEE GENERALLY SERVICE V DULLES, 354 U.S. 363 (1956), AND AT 372 THE COURT IN STATING A PRINCIPLE ESTABLISHED IN ACCARDI V SHAUGHNESSY (1954), 347 U.S. 260, SAID, " *** THAT REGULATIONS VALIDLY PRESCRIBED BY A GOVERNMENT ADMINISTRATOR ARE BINDING UPON HIM AS WELL AS THE CITIZEN, AND THAT THIS PRINCIPLE HOLDS EVEN WHERE THE ADMINISTRATIVE ACTION UNDER REVIEW IS DISCRETIONARY IN NATURE." WE RECOGNIZE THAT THOSE DECISIONS, HOWEVER, INVOLVED ADMINISTRATIVE ACTIONS WHICH NOT ONLY WERE CONTRARY TO THE REGULATIONS BUT WERE ADVERSE TO THE EMPLOYEES.

IN OUR DECISION OF OCTOBER 27, 1966, B-158880, TO WHICH YOU REFER, THE ISSUE WAS WHETHER EXCEPTIONS COULD BE GRANTED TO CERTAIN PARTS OF THE JOINT TRAVEL REGULATIONS OF THE DEPARTMENT OF DEFENSE COVERING ITS CIVILIAN EMPLOYEES. THAT DECISION AROSE OUT OF OUR PRIOR DECISION OF APRIL 28, 1966, IN REGARD TO THE SAME SUBJECT MATTER. IN HOLDING THAT EXCEPTIONS TO THE REGULATIONS WOULD BE THE SAME AS WAIVERS, WE QUOTED THE FOLLOWING WHICH APPEARED IN THE APRIL 28, 1966 DECISION:

SINCE THE AUTHORITY TO ISSUE TRAVEL REGULATIONS NOW RESTS EXCLUSIVELY WITH THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IT FOLLOWS THAT UNDER THE REGULATIONS AS PRESENTLY WORDED THE SECRETARIES OF THE UNIFORMED SERVICES MAY NOT WAIVE OR EXTEND THE TIME LIMIT PRESCRIBED IN PARAGRAPH C 7004-2. LIKEWISE, WE DO NOT BELIEVE THAT THE COMMITTEE COULD WAIVE SUCH PROVISION. ***

THE EFFECT OF THE APRIL 28 AND OCTOBER 27, 1966 DECISIONS WAS TO CHANGE THE RULE SET FORTH IN 30 COMP. GEN. 492.

WE POINT OUT THAT VOLUME 2 OF THE JOINT TRAVEL REGULATIONS OF THE DEFENSE DEPARTMENT INVOLVED IN THE ABOVE 1966 DECISIONS COULD BE DESCRIBED AS ADMINISTRATIVE REGULATIONS IN THAT THEY SUPPLEMENT STATUTORY REGULATIONS ISSUED UNDER AUTHORITY GRANTED TO THE OFFICE OF MANAGEMENT AND BUDGET. THE REGULATIONS OF THE DEPARTMENT OF THE AIR FORCE HERE INVOLVED SEEM TO BE SIMILAR IN NATURE.

ACCORDINGLY, BOTH OF YOUR QUESTIONS ARE ANSWERED IN THE NEGATIVE. WOULD APPEAR, HOWEVER, THAT THE OVERPAYMENT FOR THE PERIOD COVERING THE RETROACTIVE ADJUSTMENT, MARCH 9-30, 1970, DURING WHICH THE EMPLOYEE RECEIVED THE HIGHER PAY APPARENTLY IN GOOD FAITH WOULD BE FOR CONSIDERATION OF WAIVER UNDER 5 U.S.C. 5584.