Office of the General Counsel

Date: [XXX]
Matter of [XXX]
File Number: S9601438

OPM Contact: Jo-Ann Chabot

An Administrative Law Judge (ALJ) submitted a claim for back pay, asserting that he was sworn in as an ALJ on May 31, 1994, but his employing agency did not process his annual pay increase until June 11, 1995, twelve days after the date that the increase should have become effective. The claimant said that his employing agency used 5 U.S.C. 5535, rather than 5 U.S.C.  5372(b)(3)(A), in determining the effective date of his annual increase. Section 5535 applies to within-grade pay increases for employees whose positions are classified in the General Schedule pay plan and section 5372(b)(3)(A) concerns pay increases for employees in ALJ positions. Therefore, the claimant requests correction of his records, back pay representing the difference between the pay that he actually received and the pay that he should have received from May 31, 1995 to June 11, 1995, and adjustment of his subsequent pay increases.

The agency administrative report said that, although it is not directly stated in 5 U.S.C.  5372(b)(3)(A), it is implied that advancement to a higher rate should be made effective on the first day of the pay period after completion of the required waiting period because it is not administratively feasible for agencies to make a change in pay at any other time. The agency also said in this regard that its pay roll and personnel system, as well as the systems at many other Federal agencies, only have the capacity to pay an employee at one pay rate during a given pay period. Moreover, the agency noted that other statutes governing pay increases or cost-of-living and locality adjustments specifically make an increase effective at the beginning of the next pay period upon completion of 52 weeks of service in the next lower rate. (See, e.g., 5 U.S.C. 5335(a)).

The relevant statute, 5 U.S.C. 5372(b)(3)(A), establishes a separate pay plan for ALJs appointed under 5 U.S.C.  3105 and specifies that "upon appointment to a position in AL-3, an [ALJ] shall be paid at rate A of AL-3, and shall be advanced successively to rates B, C, and D of that level upon completion of 52 weeks of service in the next lower rate." Section 5372(c) authorizes the Office of Personnel Management (OPM) to prescribe implementing regulations. OPM regulations, at 5 C.F.R.  930.210(f), provide that, "upon appointment" to a position in AL-3, the ALJ shall be paid at the minimum rate A of AL-3, and "shall be automatically advanced to rates B, C, and D upon completion of 52 weeks of service in the next lower rate." Section 930.210(f) also describes what qualifies as creditable service in computing the 52-week waiting period. The statutory and regulatory language clearly and specifically directs agencies to automatically advance an ALJ to rates B, C, and D of AL-3 upon his or her completion of 52 weeks of service in the next lower rate, and does not leave the time of advancement to agency discretion. Moreover, the legislative history of 5372(b)(3)(a) is silent concerning Congressional intent in setting the specific time of an ALJ's advancement within level AL-3.

It is well settled that "[t]he starting point for interpretation of a statute is the language of the statute itself," and "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S. Ct. 1570, 1575 (1990), citing Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056 (1980). According to the plain language in 5 U.S.C. 5372(b)(3)(A) and 5 C.F.R. 930.210(f), the claimant's annual increase should have become effective 52 weeks after his appointment, or on May 31, 1995, if he completed 52 weeks of creditable service.

Also, the comparison the agency draws between section 5372, which is the pay-setting statute for ALJs, and section 5335, which is the pay-setting statute for General Schedule employees, is misplaced. In both statutes, Congress provided for pay increases upon the completion of certain time-in-grade requirements. However, section 5335 expressly states that pay increases will take effect at the beginning of the next pay period after completing the required time-in-grade. Section 5372 contains no similar language. Under standard rules of statutory construction, when Congress expressly includes something in one statute and omits its from another, the omission should be regarded as intentional. Therefore, in the absence of language in section 5372(b)(3)(A) setting some other effective date, we presume that Congress intended that pay increases authorized by that section should be made effective when the employee meets the stated requirements of that section.

Finally, the agency believes that 5 C.F.R. 930.201(b) authorizes it to follow competitive service regulations in determining the effective date of an ALJ's annual increase. Within-grade increases for General Schedule employees become effective on the first day of the first pay period following completion of a specified waiting period. 5 C.F.R. 531.412(a). The agency's reliance on 5 C.F.R. 930.201(b) is misplaced. Section 930.201(b) states:

Except as otherwise provided in [subpart B of 5 C.F.R. Part 930], the rules and regulations applicable to positions in the competitive service apply to administrative law judge positions.

Subpart B governs the appointment, pay, and removal of ALJs and includes 5 C.F.R.  930.210(f), a pay provision requiring the automatic advancement of ALJs to a higher pay rate upon their completion of 52 weeks of service in the next lower rate. In view of section 930.210(f), a regulation specifically governing the effective date of ALJs' annual pay increases, section 930.201(b) does not authorize the agency to use General Schedule pay regulations in computing the date that annual pay increases for ALJs will take effect.

Accordingly, the claimant is entitled to correction of his records, back pay representing the difference between the pay he actually received and the pay he should have received from May 31, 1995 to June 11, 1995, and adjustment of his subsequent pay increases in accordance with section 5372(b)(3)(A) and OPM regulations thereunder.