B-137000, SEPTEMBER 16, 1958, 38 COMP. GEN. 213

B-137000: Sep 16, 1958

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CIVILIAN PERSONNEL - SUPERGRADE POSITIONS - LIMITATION THE SUPERGRADE POSITIONS WHICH ARE EXPRESSLY AUTHORIZED IN APPROPRIATION ACTS FOR 1959 TO BE IN ADDITION TO THOSE PROVIDED IN SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949. DO NOT AFFECT THE NUMBER OF SUCH POSITIONS AS LIMITED IN SECTION 505 (B) AND DO NOT HAVE TO BE DEDUCTED FROM THE NUMBER AUTHORIZED PURSUANT TO THE SUPERGRADE REDUCTION PROVISIONS IN SECTION 505 (H) OF THE ACT. ARE NOT AFFECTED BY THE SUBSEQUENT INCREASE IN THE NUMBER OF SUPERGRADE POSITIONS IN SECTION 505 (B) AND ARE NOT REQUIRED TO BE DEDUCTED FROM THE NUMBER OF POSITIONS AUTHORIZED IN SECTION 505 (B) IN ACCORDANCE WITH THE REDUCTION PROVISIONS IN SECTION 505 (H) OF THE ACT.

B-137000, SEPTEMBER 16, 1958, 38 COMP. GEN. 213

CIVILIAN PERSONNEL - SUPERGRADE POSITIONS - LIMITATION THE SUPERGRADE POSITIONS WHICH ARE EXPRESSLY AUTHORIZED IN APPROPRIATION ACTS FOR 1959 TO BE IN ADDITION TO THOSE PROVIDED IN SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1105 (B), DO NOT AFFECT THE NUMBER OF SUCH POSITIONS AS LIMITED IN SECTION 505 (B) AND DO NOT HAVE TO BE DEDUCTED FROM THE NUMBER AUTHORIZED PURSUANT TO THE SUPERGRADE REDUCTION PROVISIONS IN SECTION 505 (H) OF THE ACT, 5 U.S.C. 1105 (H). THE TEN SUPERGRADE POSITIONS FOR ADVANCE RESEARCH AUTHORIZED IN SECTION 601 OF THE SUPPLEMENTAL DEFENSE APPROPRIATION ACT, 1958, IN ADDITION TO THOSE AUTHORIZED IN SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1105 (B), ARE NOT AFFECTED BY THE SUBSEQUENT INCREASE IN THE NUMBER OF SUPERGRADE POSITIONS IN SECTION 505 (B) AND ARE NOT REQUIRED TO BE DEDUCTED FROM THE NUMBER OF POSITIONS AUTHORIZED IN SECTION 505 (B) IN ACCORDANCE WITH THE REDUCTION PROVISIONS IN SECTION 505 (H) OF THE ACT, 5 U.S.C. 1105 (H). THE SUPERGRADE REDUCTION PROVISIONS IN SECTION 505 (H) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1105 (H), DO NOT REQUIRE A REDUCTION IN POSITIONS UPON THE ENACTMENT OF AN APPROPRIATION ACT WHICH PROVIDES FOR AN INCREASE IN THE NUMBER OF SUPERGRADE POSITIONS, UNTIL THE AGENCY UTILIZES ITS AUTHORITY TO ESTABLISH THE POSITIONS; HOWEVER, ANY LATER RECLASSIFICATION ACTION BETWEEN SUPERGRADE POSITIONS WILL REQUIRE REDUCTION OF THE GRADES SPECIFIED IN SECTION 505 (B) OF THE ACT, 5 U.S.C. 1105 (B). ALTHOUGH SUPERGRADE REDUCTION ACTION PURSUANT TO SECTION 505 (H) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1105 (H), MAY INVOLVE CONFLICTING RIGHTS, DELAY IN REDUCTION UNTIL A VACANCY OCCURS IS NOT WARRANTED.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 16, 1958:

ON AUGUST 1, 1958, YOU REQUESTED OUR ADVICE UPON CERTAIN QUESTIONS CONCERNING THE EFFECT OF SECTION 505 (H) OF THE CLASSIFICATION ACT OF 1949 AS ADDED BY SECTION 10 (REFERRED TO IN YOUR LETTER AS SUBSECTION 10 (H) ( OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 ( PUBLIC LAW 85-462), 72 STAT. 213, 5 U.S.C. 1105 (H), UPON THE SUPERGRADE POSITIONS AUTHORIZED BY "A GENERAL APPROPRIATION ACT.'

SECTION 505 (H) READS AS FOLLOWS:

IN ANY CASE IN WHICH, SUBSEQUENT TO FEBRUARY 1, 1958, PROVISIONS ARE INCLUDED IN A GENERAL APPROPRIATION ACT AUTHORIZING AN AGENCY OF THE GOVERNMENT TO PLACE ADDITIONAL POSITIONS IN GRADE 16, 17, 18, THE TOTAL NUMBER OF POSITIONS AUTHORIZED BY THIS SECTION TO BE PLACED IN SUCH GRADES SHALL, UNLESS OTHERWISE EXPRESSLY PROVIDED, BE DEEMED TO HAVE BEEN REDUCED BY THE NUMBER OF POSITIONS AUTHORIZED BY SUCH PROVISIONS TO BE PLACED IN SUCH GRADES. SUCH REDUCTION SHALL BE DEEMED TO HAVE OCCURRED IN THE FOLLOWING ORDER: FIRST, FROM ANY NUMBER SPECIFICALLY AUTHORIZED FOR SUCH AGENCY UNDER THIS SECTION, AND SECOND, FROM THE MAXIMUM NUMBER OF POSITIONS AUTHORIZED TO BE PLACED IN SUCH GRADES UNDER SUBSECTION (B) IRRESPECTIVE OF THE AGENCY TO WHICH SUCH POSITIONS ARE ALLOCATED. ITALICS SUPPLIED.)

WE AGREE WITH YOUR ASSUMPTION THAT THE PHRASE "A GENERAL APPROPRIATION ACT" MEANS AN ACT WHICH PROVIDES MONEY FOR THE GENERAL PURPOSES OF GOVERNMENT FOR A PERIOD ENDING THE FOLLOWING JUNE 30 AND THAT THE TERM INCLUDES SUPPLEMENTAL OR DEFICIENCY APPROPRIATION ACTS. SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1105 (B), AUTHORIZES THE ESTABLISHMENT OF POSITIONS IN GRADES 16, 17 AND 18 OF THE GENERAL SCHEDULE, BUT LIMITS THE NUMBER OF SUCH JOBS AS WELL AS THE MAXIMUM NUMBER OF SUCH POSITIONS WHICH MAY BE ESTABLISHED IN GRADES 17 AND 18.

YOUR FIRST QUESTION IS WHETHER CERTAIN PROVISIONS WHICH HAVE ALREADY APPEARED IN APPROPRIATION ACTS CONTAIN LANGUAGE WHICH COMES WITHIN THE MEANING OF THE PHRASE "UNLESS OTHERWISE EXPRESSLY PROVIDED" AS USED IN SECTION 505 (H). YOU REFER TO THE APPROPRIATION ACT FOR THE CIVIL AERONAUTICS ADMINISTRATION FOR THE FISCAL YEAR 1959 ( PUBLIC LAW 85 469, 72 STAT. 228, 49 U.S.C. 461) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

PROVIDED FURTHER, THAT THE ADMINISTRATOR IS AUTHORIZED, SUBJECT TO THE PROCEDURES PRESCRIBED IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, BUT WITHOUT REGARD TO THE NUMERICAL LIMITATIONS CONTAINED THEREIN, TO PLACE TEN GENERAL SCHEDULE POSITIONS IN THE FOLLOWING GRADES: ONE IN GRADE GS- 18, TWO IN GRADE GS-17, AND SEVEN IN GRADE GS 16; AND SUCH POSITIONS SHALL BE IN ADDITION TO POSITIONS PREVIOUSLY ALLOCATED TO THIS AGENCY UNDER SECTION 505 OF SAID ACT. ( ITALICS SUPPLIED.)

A SIMILAR PROVISION APPEARS IN THE SAME ACT UNDER THE HEADING " CIVIL AERONAUTICS BOARD" AT 72 STAT. 237, 49 U.S.C. 422B.

OUR VIEW IS THAT THE ITALICIZED LANGUAGE OF THE ABOVE-QUOTED PROVISO SHOWS AN INTENT BY THE CONGRESS TO EXPRESSLY PROVIDED AN EXCEPTION TO THE REDUCTION PROVISION IN SECTION 505 (H) OF THE CLASSIFICATION ACT; AND, THEREFORE, THE SUPERGRADE POSITIONS AUTHORIZED FOR THE CIVIL AERONAUTICS ADMINISTRATION AND THE CIVIL AERONAUTICS BOARD IN THEIR GENERAL APPROPRIATION ACT FOR THE FISCAL YEAR 1959 DO NOT AFFECT THE NUMBER OF SUCH POSITIONS AUTHORIZED BY SECTION 505 (B) OF THE CLASSIFICATION ACT.

YOU ALSO REFER TO SECTION 601 OF THE SUPPLEMENTAL DEFENSE APPROPRIATION ACT, 1958, ( PUBLIC LAW 85-322, 72 STAT. 8) WHICH READS IN PERTINENT PART AS FOLLOWS:

IN ORDER TO MORE EFFECTIVELY ADMINISTER THE PROGRAMS RELATING TO ADVANCE RESEARCH ACTIVITIES, THE SECRETARY OF DEFENSE MAY * * * PLACE TEN POSITIONS IN GRADES 16, 17, OR 18 OF THE GENERAL SCHEDULE, IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED IN THE CLASSIFICATION ACT OF 1949, AS AMENDED. THESE POSITIONS SHALL BE IN ADDITION TO THOSE NOW AUTHORIZED BY LAW. ( ITALICS SUPPLIED.)

THE ITALICIZED LANGUAGE APPEARS TO SHOW AN INTENT BY THE CONGRESS TO AUTHORIZE THESE TEN POSITIONS IN ADDITION TO THE SUPERGRADES AUTHORIZED BY SECTION 505 (B). THE SUBSEQUENT INCREASE IN THE NUMBER OF SUPERGRADE POSITIONS AUTHORIZED BY SECTION 505 (B) IS NOT BELIEVED TO AFFECT THAT INTENTION. THEREFORE, THESE TEN SUPERGRADE POSITIONS ARE NOT REQUIRED TO BE DEDUCTED FROM THE NUMBER AUTHORIZED IN SECTION 505 (B) OF THE CLASSIFICATION ACT.

YOUR SECOND QUESTION CONCERNS THE HYPOTHETICAL SITUATION OF A GENERAL APPROPRIATION ACT AUTHORIZING SUPERGRADE POSITIONS FOR AN AGENCY WITHOUT AN EXEMPTION FROM SECTION 505 (H) OF THE CLASSIFICATION ACT. YOU SAY IF THE APPROPRIATION ACT SPECIFIES THE GRADES OF THE POSITIONS, AND IF AT THAT TIME THERE ARE SUFFICIENT VACANCIES IN THOSE GRADES, MAKING THE REQUIRED REDUCTION WILL BE SIMPLE. HOWEVER, IT IS EXPECTED THAT AT LEAST ONE OF THESE CONDITIONS WILL NOT EXIST AT SUCH TIME. YOUR SPECIFIC SUBQUESTIONS ARE AS FOLLOWS:

(A) (1) IF THE APPROPRIATION ACT PROVISION SIMPLY AUTHORIZES AN AGENCY, FOR EXAMPLE, TO ,PLACE TEN POSITIONS IN GRADE 16, 17, OR 18 OF THE GENERAL SCHEDULE," WILL IT BE NECESSARY TO WAIT UNTIL THE AGENCY ACTUALLY UTILIZES THE AUTHORITY SO AS TO MAKE THE REDUCTION IN THE SAME GRADES AS ACTUALLY USED? (2) IF SO, WILL ANY LATER CHANGE IN THE GRADES OF THE POSITIONS (FOR EXAMPLE, IF A GS-16 WERE RECLASSIFIED TO GS-17 OR VICE VERSA) REQUIRE A SIMILAR CHANGE IN THE REDUCTION WHICH HAD BEEN MADE FROM THE NUMBER AUTHORIZED BY SECTION 505 (B) OF THE CLASSIFICATION ACT? (3) OR WILL IT BE SUFFICIENT UNDER SUCH A PROVISION TO REDUCE AN EQUAL NUMBER AT ANY SUPERGRADE LEVEL OR LEVELS?

(B) (1) IF, AT THE TIME A REDUCTION MUST BE MADE IN THE NUMBER AUTHORIZED BY SECTION 505 (B) OF THE CLASSIFICATION ACT, ALL POSITIONS AUTHORIZED BY THAT SECTION ARE FILLED, WILL IT BE SUFFICIENT TO REDUCE THE TOTAL IN THEORY AND REFRAIN FROM FILLING POSITIONS AS THEY BECOME VACANT UNTIL THE NEW LOWER FIGURES IS REACHED? (2) IF THIS IS NOT SUFFICIENT, AND IF SECTION 10 (H) OF PUBLIC LAW 85-462 MAKES IT ILLEGAL FOR AN EQUAL NUMBER OF POSITIONS UNDER SECTION 505 (B) TO REMAIN CLASSIFIED ABOVE GS-15 ONCE THE NEW POSITIONS UNDER AN APPROPRIATION ACT PROVISION ARE FILLED, HOW DO WE IDENTIFY THE POSITIONS WHICH ARE AUTOMATICALLY REDUCED?

THE LITERAL LANGUAGE OF SECTION 505 (H) WOULD APPEAR TO OPERATE SO AS TO CAUSE AN AUTOMATIC REDUCTION IN THE TOTAL NUMBER OF SUPERGRADES AVAILABLE UNDER SECTION 505 (B) UPON ENACTMENT OF AN APPROPRIATION ACT PROVISION SIMPLY AUTHORIZING AN AGENCY TO PLACE TEN POSITIONS IN GRADES 16, 17, OR 18 OF THE GENERAL SCHEDULE. WE BELIEVE, HOWEVER, THE INTENT OF SECTION 505 (H) WILL BE COMPLIED WITH BY DELAYING ACTION TO REDUCE THE POSITIONS UNDER SECTION 505 UNTIL SUCH TIME AS THE AGENCY RECEIVING THE APPROPRIATION ACT AUTHORIZATION UTILIZES ITS AUTHORITY. THUS, AT NO TIME WILL THE CEILING LIMITATIONS IN SECTION 505 (B) BE EXCEEDED AND THE REDUCTIONS CAN BE ACCOMPLISHED BY A REDUCTION IN THE SAME GRADES AS ACTUALLY UTILIZED. ANY LATER RECLASSIFICATION ACTION IN THE GRADES UTILIZED WILL REQUIRE SIMILAR CHANGES IN THE REDUCTION OF THE GRADES AUTHORIZED BY SECTION 505 (B). QUESTIONS (A) (1) AND (2) ARE ANSWERED ACCORDINGLY, MAKING AN ANSWER TO SUBSECTION (A) (3) UNNECESSARY.

IF, AT THE TIME A REDUCTION MUST BE MADE IN THE NUMBER AUTHORIZED BY SECTION 505 (B) IN ACCORDANCE WITH THE ANSWER TO QUESTION 1 (A) ABOVE, ALL POSITIONS AUTHORIZED BY THAT SECTION ARE FILLED, OUR VIEW IS THAT THE CIVIL SERVICE COMMISSION--- WHICH UNDER SECTION 505 (B) APPROVED PLACEMENT OF THE POSITIONS IN THE SUPERGRADES--- IS REQUIRED TO TAKE IMMEDIATE ACTION TO DECIDE WHICH POSITIONS UNDER SECTION 505 (B) ARE TO BE VACATED SO AS TO ALLOW THE APPROPRIATION ACT AUTHORIZATION TO BE CARRIED INTO EFFECT. THE ADVERSE ACTION BY THE COMMISSION ON THE SECTION 505 (B) POSITIONS TO BE VACATED COULD, AS YOU POINT OUT, INVOLVE CONFLICTING RIGHTS. WE DO NOT BELIEVE THAT SUCH A POSSIBILITY, HOWEVER, WARRANTS DELAY IN REDUCTION OF THE SUPERGRADES AS REQUIRED UNDER SECTION 505 (H) UNTIL SUCH TIME AS A VACANCY OCCURS.