B-106598, DECEMBER 11, 1951, 31 COMP. GEN. 205

B-106598: Dec 11, 1951

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PROHIBITING THE PROMOTION OR TRANSFER OF ANY PERSON WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949. TO A HIGHER GRADE UNDER THE ACT UNLESS HE HAS SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE OR IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL-SERVICE REGISTER. PERSONS WITH PRIOR SERVICE IN SUCH POSITIONS WHO HAVE NOT COMPLETED THE REQUIRED PERIOD IN GRADE WHEN REACHED FOR APPOINTMENT TO A HIGHER GRADE POSITION OF ATTORNEY ON A NON-CIVIL-SERVICE REGISTER. FROM A NON-CIVIL-SERVICE REGISTER ESTABLISHED FOR ATTORNEYS BY THE FEDERAL TRADE COMMISSION PRIOR TO THE COMPLETION OF AT LEAST ONE YEAR'S SERVICE IN THE NEXT LOWER GRADE IS NOT AUTHORIZED UNDER THE PROVISIONS OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT.

B-106598, DECEMBER 11, 1951, 31 COMP. GEN. 205

COMPENSATION - PROMOTIONS - ATTORNEYS - SERVICE IN GRADE REQUIREMENT UNDER THE PROVISIONS OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, PROHIBITING THE PROMOTION OR TRANSFER OF ANY PERSON WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO A HIGHER GRADE UNDER THE ACT UNLESS HE HAS SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE OR IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL-SERVICE REGISTER, PERSONS WITH PRIOR SERVICE IN SUCH POSITIONS WHO HAVE NOT COMPLETED THE REQUIRED PERIOD IN GRADE WHEN REACHED FOR APPOINTMENT TO A HIGHER GRADE POSITION OF ATTORNEY ON A NON-CIVIL-SERVICE REGISTER, ESTABLISHED BY THE FEDERAL TRADE COMMISSION, MAY NOT BE APPOINTED TO THE HIGHER GRADE. INASMUCH AS THE APPOINTMENT OF VETERANS TO HIGHER GRADES UNDER THE CLASSIFICATION ACT OF 1949, FROM A NON-CIVIL-SERVICE REGISTER ESTABLISHED FOR ATTORNEYS BY THE FEDERAL TRADE COMMISSION PRIOR TO THE COMPLETION OF AT LEAST ONE YEAR'S SERVICE IN THE NEXT LOWER GRADE IS NOT AUTHORIZED UNDER THE PROVISIONS OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, OFFERS OF SUCH APPOINTMENTS TO VETERANS MAY BE WITHDRAWN WITHOUT VIOLATING THE PROVISIONS OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL TRADE COMMISSION, DECEMBER 11, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1951, PRESENTING FOR DECISION CERTAIN QUESTIONS ARISING UNDER SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, PUBLIC LAW 253, APPROVED NOVEMBER 1, 1951. YOUR LETTER READS IN PART, AS FOLLOWS:

THREE YOUNG ATTORNEYS FROM AMONG SOME TWENTY-EIGHT RECENTLY OFFERED APPOINTMENTS IN THE FEDERAL TRADE COMMISSION WERE FOUND UPON ACCEPTANCE OF THE OFFER OF AN APPOINTMENT AT GRADE GS-7, TO HAVE BEEN EMPLOYED BY THE FEDERAL GOVERNMENT FOR A PERIOD OF LESS THAN ONE YEAR IN POSITIONS OTHER THAN ATTORNEY AT GRADE GS-5.

THESE ATTORNEYS ARE VETERANS WHOSE NAMES WERE REACHED ACCORDING TO THE RULE-OF-THREE FROM A REGISTER ESTABLISHED AS THE RESULT OF AN OPEN, COMPETITIVE EXAMINATION HELD BY THE BOARD OF LEGAL EXAMINERS OF THE FEDERAL TRADE COMMISSION UNDER PROCEDURES APPROVED BY THE CIVIL SERVICE COMMISSION AND WHICH HAVE BEEN IN EFFECT SINCE SHORTLY AFTER THE EFFECTIVE DATE OF THE VETERANS PREFERENCE ACT.

ATTORNEY POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF 1949. THE ATTORNEY-1INVESTIGATOR SERIES INTO WHICH THE POSITIONS FALL AND INTO WHICH OFFERS OF APPOINTMENT WERE MADE ADVANCES BY TWO GRADE INTERVALS.

PARAGRAPH (C) (4) OF SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952 IN PART READS AS FOLLOWS:

" PROVIDED FURTHER, THAT THIS SUBSECTION SHALL NOT APPLY TO ANY CASE INVOLVING AN EMPLOYEE WHO IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL SERVICE REGISTER, * * *"

THERE IS NO CIVIL SERVICE REGISTER FOR ATTORNEYS.

SINCE THERE IS NO OPEN, COMPETITIVE CIVIL SERVICE REGISTER FOR ATTORNEYS, WILL THE INTENT OF PARAGRAPH (C) OF SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT BE COMPLIED WITH IF THE ABOVE MENTIONED ATTORNEYS ARE APPOINTED?

IN THE EVENT APPOINTMENT OF THESE ATTORNEYS IS DECIDED TO BE CONTRARY TO THE INTENT OF PARAGRAPH (C) OF SECTION 1310, CAN THE OFFER OF APPOINTMENT TO THESE VETERANS BE WITHDRAWN AND APPOINTMENT OF ATTORNEYS, BOTH VETERAN AND NONVETERAN, WHOSE NAMES APPEAR BELOW THESE ON THE REGISTER BE MADE WITHOUT VIOLATING THE VETERANS PREFERENCE ACT?

SECTION 1310 (C) OF PUBLIC LAW 253, SUPRA, 65 STAT. 758, PROVIDES IN PART, AS FOLLOWS:

* * * NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE * * * PROVIDED FURTHER, THAT THIS SUBSECTION SHALL NOT APPLY TO ANY CASE INVOLVING AN EMPLOYEE WHO IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL SERVICE REGISTER * * *.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE MATTER SET FORTH IN YOUR LETTER BUT THERE CAN BE FOUND NO LEGAL BASIS FOR APPOINTMENT OF THE THREE ATTORNEYS REFERRED TO THEREIN TO GRADE GS-7 POSITIONS PRIOR TO THEIR COMPLETING THE PERIOD OF SERVICE PROVIDED BY PUBLIC LAW 253 AS A PREREQUISITE TO THEIR PROMOTIONS. AN ADMINISTRATIVE REGISTER SUCH AS THAT ESTABLISHED BY THE FEDERAL TRADE COMMISSION IS UNDERSTOOD TO BE SUBJECT TO THE JURISDICTION OF THE CIVIL SERVICE COMMISSION ONLY TO THE EXTENT THAT APPOINTMENTS THEREFROM MUST COMPLY SO FAR AS LEGALLY POSSIBLE WITH CIVIL SERVICE REGULATIONS PROMULGATED FOR THE PROTECTION OF VETERANS PURSUANT TO THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 387, AS AMENDED, 5 U.S. CODE, SUPP. IV, 851, AND SUCH ADMINISTRATIVE REGISTERS ARE NOT "CIVIL SERVICE" REGISTERS WITHIN THE PURVIEW OF PUBLIC LAW 253.

WITH REFERENCE TO YOUR QUESTION AS TO WHETHER THE OFFERS OF APPOINTMENT TO THE SAID ATTORNEYS MAY BE WITHDRAWN, SECTION 1310 OF THE SAID PUBLIC LAW SERVES AS A LEGAL BAR TO THEIR QUALIFICATION FOR A GRADE GS-7 POSITION. UNDER THE CIRCUMSTANCES, WITHDRAWAL OF THE TENDERED APPOINTMENTS WOULD NOT APPEAR TO BE IN CONFLICT WITH THE PROVISIONS OF THE VETERANS PREFERENCE ACT, SUPRA. ..END :