B-107716, FEBRUARY 26, 1952, 31 COMP. GEN. 426

B-107716: Feb 26, 1952

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WHICH POSITIONS ARE EXCEPTED FROM THE CLASSIFIED CIVIL SERVICE. ARE NOT TO BE REGARDED AS APPOINTMENTS FROM "A COMPETITIVE CIVIL SERVICE REGISTER" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT. THE POSITIONS OF SPECIAL AGENT AND SPECIAL EMPLOYEE ARE SUBJECT TO THE PROMOTION RESTRICTIONS OF THE OTHER PROVISIONS OF THAT SECTION. 1952: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25. PERSONS IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949. (2) TO POSITIONS NOT HIGHER THAN GS-11 WHICH ARE IN A LINE OF WORK PROPERLY CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1949 AT TWO GRADE INTERVALS. (4) OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTIONS IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED: PROVIDED FURTHER.

B-107716, FEBRUARY 26, 1952, 31 COMP. GEN. 426

APPOINTMENTS - SPECIAL AGENTS AND SPECIAL EMPLOYEES IN THE FEDERAL BUREAU OF INVESTIGATION APPOINTED FROM THE BUREAU'S COMPETITIVE REGISTER INASMUCH AS APPOINTMENTS TO POSITIONS OF SPECIAL AGENT AND SPECIAL EMPLOYEE IN THE FEDERAL BUREAU OF INVESTIGATION FROM THE BUREAU'S COMPETITIVE REGISTER, WHICH POSITIONS ARE EXCEPTED FROM THE CLASSIFIED CIVIL SERVICE, ARE NOT TO BE REGARDED AS APPOINTMENTS FROM "A COMPETITIVE CIVIL SERVICE REGISTER" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, EXCEPTING CIVIL SERVICE REGISTER APPOINTMENTS FROM THE PROMOTION RESTRICTIONS OF SAID SECTION, THE POSITIONS OF SPECIAL AGENT AND SPECIAL EMPLOYEE ARE SUBJECT TO THE PROMOTION RESTRICTIONS OF THE OTHER PROVISIONS OF THAT SECTION.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, FEBRUARY 26, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1952, REQUESTING A DECISION UPON THE QUESTION OF WHETHER SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, PUBLIC LAW 253, APPROVED NOVEMBER 1, 1951, PRECLUDES THE APPOINTMENT FROM COMPETITIVE REGISTERS SET UP BY THE FEDERAL BUREAU OF INVESTIGATION OF EMPLOYEES ALREADY IN THE SERVICE OF SAID BUREAU TO POSITIONS OF SPECIAL EMPLOYEE AND SPECIAL AGENT WHERE SUCH APPOINTMENTS WOULD CONSTITUTE AN ADVANCEMENT OF MORE THAN TWO GRADES UNDER THE CLASSIFICATION ACT OF 1949.

SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, 65 STAT. 758, PROVIDES IN PERTINENT PART, AS FOLLOWS:

(C) THE CIVIL SERVICE COMMISSION SHALL MAKE FULL USE OF ITS AUTHORITY TO PREVENT EXCESSIVELY RAPID PROMOTIONS IN THE COMPETITIVE CIVIL SERVICE AND TO REQUIRE CORRECTION OF IMPROPER ALLOCATIONS TO HIGHER GRADES OF POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED. PERSONS 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, THAT THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE AND THE HEAD OF THE EMPLOYING AGENCY FOR POSITIONS OUTSIDE THE COMPETITIVE SERVICE MAY BY REGULATION PROVIDE FOR PROMOTIONS OF TWO GRADES IN ONE YEAR (1) TO POSITIONS NOT HIGHER THAN GS-5; (2) TO POSITIONS NOT HIGHER THAN GS-11 WHICH ARE IN A LINE OF WORK PROPERLY CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1949 AT TWO GRADE INTERVALS; (3) TO POSITIONS IN THE SAME LINE OF WORK APPROVED BY THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE, OR APPROVED BY THE HEAD OF THE EMPLOYING AGENCY FOR POSITIONS OUTSIDE THE COMPETITIVE SERVICE; AND (4) OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTIONS IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED: PROVIDED FURTHER, THAT THIS SUBSECTION SHALL NOT APPLY TO ANY CASE INVOLVING AN EMPLOYEE WHO IS WITHIN REACH FOR AN APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL SERVICE REGISTER, OR BEING ADVANCED UP TO A HIGHER GRADE LEVEL FROM WHICH HE HAD BEEN DEMOTED OR SEPARATED BECAUSE OF REDUCTION IN FORCE. ( ITALICS SUPPLIED.)

IT IS YOUR VIEW THAT THE PROVISION CONTAINED IN THE ABOVE SUBSECTION EXEMPTING PERSONS REACHED FOR APPOINTMENT ON "A COMPETITIVE CIVIL SERVICE REGISTER" IS NOT RESTRICTED TO COMPETITIVE REGISTERS ESTABLISHED BY THE UNITED STATES CIVIL SERVICE COMMISSION FOR THE CLASSIFIED CIVIL SERVICE BUT INCLUDES COMPETITIVE REGISTERS ESTABLISHED BY THE FEDERAL BUREAU OF INVESTIGATION FOR THE POSITIONS OF SPECIAL AGENT AND SPECIAL EMPLOYEE WHICH POSITIONS ARE EXCEPTED FROM THE CLASSIFIED CIVIL SERVICE. SUPPORT OF THAT VIEW YOU MAKE REFERENCE TO CERTAIN TESTIMONY BEFORE THE SENATE POST OFFICE AND CIVIL SERVICE COMMITTEE APPEARING ON PAGES 1349 AND 1350 OF THE HEARINGS BEFORE THE SENATE APPROPRIATIONS COMMITTEE ON H.R. 5215, WHICH BECAME THE SUPPLEMENTAL APPROPRIATION ACT, 1952.

IN OFFICE DECISION OF DECEMBER 11, 1951, B-106598, 31 COMP. GEN. 205, TO THE CHAIRMAN, FEDERAL TRADE COMMISSION, IT WAS HELD THAT AN OPEN COMPETITIVE REGISTER FOR ATTORNEYS ESTABLISHED BY THAT AGENCY, PRIMARILY TO COMPLY WITH THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, WAS NOT A "CIVIL SERVICE REGISTER" WITHIN THE MEANING OF PUBLIC LAW 253 (SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952).

THE REGISTERS FOR SPECIAL AGENT AND SPECIAL EMPLOYEE POSITIONS ESTABLISHED BY THE FEDERAL BUREAU OF INVESTIGATION THROUGH OPEN COMPETITIVE EXAMINATIONS APPEAR SIMILAR TO THE REGISTER CONSIDERED IN THE ABOVE DECISION. IN ANY EVENT, THE LEGISLATIVE HISTORY OF THE ENACTMENT, AND IN PARTICULAR THE PORTION QUOTED IN YOUR LETTER, HAS BEEN CAREFULLY SCRUTINIZED AND COMPARED WITH THE LANGUAGE OF SECTION 1310 OF THE ACT TO ASCERTAIN WHETHER A DIFFERENT CONCLUSION MIGHT BE WARRANTED WITH RESPECT TO THE REGISTERS HERE INVOLVED. HOWEVER, IT IS MY OPINION THAT SUCH LEGISLATIVE HISTORY IS NOT SUFFICIENTLY CLEAR TO OVERCOME THE MEANING CUSTOMARILY ACCORDED TO THE LANGUAGE "A COMPETITIVE CIVIL SERVICE REGISTER" APPEARING IN SECTION 1310 (C) OF SAID APPROPRIATION ACT, THAT IS, A REGISTER ESTABLISHED BY THE CIVIL SERVICE COMMISSION UNDER THE CLASSIFIED CIVIL SERVICE.

ACCORDINGLY, YOU ARE ADVISED THAT APPOINTMENTS TO POSITIONS OF SPECIAL AGENT AND SPECIAL EMPLOYEE IN THE FEDERAL BUREAU OF INVESTIGATION FROM THE BUREAU'S COMPETITIVE REGISTER ARE NOT TO BE REGARDED AS APPOINTMENTS FROM "A COMPETITIVE CIVIL SERVICE REGISTER; " HENCE, SUCH POSITIONS WOULD BE SUBJECT TO THE PROMOTION RESTRICTIONS OF THE OTHER PROVISIONS OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952.