B-139584, SEP. 24, 1959

B-139584: Sep 24, 1959

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- WAS IN VIOLATION OF THE WHITTEN AMENDMENT (5 U.S.C.A. 43). WERE STATED AS FOLLOWS: "THE RECORD SHOWS MR. BUDD WAS PROMOTED FROM A GRADE GS-13 POSITION TO A GRADE GS-14 POSITION EFFECTIVE DECEMBER 29. THE GRADE GS-15 POSITION WAS ADMINISTRATIVELY ESTABLISHED AND MR. BUDD WAS PROMOTED THERETO WHILE OCCUPYING THE GRADE GS-14 POSITION. BUDD'S PROMOTION WAS FROM THE GRADE GS-14 POSITION. SINCE HE WAS PROMOTED TO GRADE GS-15 BEFORE MEETING THE SERVICE-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT (5 U.S.C.A. 43). GEN. 179 WE HELD THAT AN EMPLOYEE WHOSE POSITION IS REALLOCATED UPWARD PURSUANT TO THE CLASSIFICATION ACT OF 1949 AND WHO. IS NOT ELIGIBLE TO BE IMMEDIATELY PROMOTED TO A HIGHER GRADE BECAUSE OF THE SERVICE-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT.

B-139584, SEP. 24, 1959

TO THE HONORABLE SUMNER C. WITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

ON JULY 27, 1959, FILE 052, THE DEPUTY ADMINISTRATOR REQUESTED RECONSIDERATION OF OUR DECISION OF JULY 6, 1959, B-139584, TO YOU, WHEREIN WE HELD THAT THE PROMOTION OF MR. PHILLIP J. BUDD, EFFECTIVE SEPTEMBER 21, 1958, FROM GRADE GS-14 TO GRADE GS-15--- APPROXIMATELY EIGHT MONTHS AND 20 DAYS AFTER HIS PROMOTION TO GRADE GS-14--- WAS IN VIOLATION OF THE WHITTEN AMENDMENT (5 U.S.C.A. 43).

THE FACTS CONSIDERED IN OUR DECISION OF JULY 6, 1959, WERE STATED AS FOLLOWS:

"THE RECORD SHOWS MR. BUDD WAS PROMOTED FROM A GRADE GS-13 POSITION TO A GRADE GS-14 POSITION EFFECTIVE DECEMBER 29, 1957. THE GRADE GS-15 POSITION WAS ADMINISTRATIVELY ESTABLISHED AND MR. BUDD WAS PROMOTED THERETO WHILE OCCUPYING THE GRADE GS-14 POSITION. THE ADMINISTRATIVE ACTION, IN THIS CASE, OF ESTABLISHING THE GRADE GS-15 POSITION REPRESENTS, A REALLOCATION OF THE GRADE GS-14 POSITION. MR. BUDD'S PROMOTION WAS FROM THE GRADE GS-14 POSITION, NOT THE GRADE GS-13 POSITION, AND SINCE HE WAS PROMOTED TO GRADE GS-15 BEFORE MEETING THE SERVICE-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT (5 U.S.C.A. 43), I.E., ONE YEAR, HIS CASE FALLS WITHIN OUR DECISION 34 COMP. GEN. 179 * * *.'

IN OUR DECISION 34 COMP. GEN. 179 WE HELD THAT AN EMPLOYEE WHOSE POSITION IS REALLOCATED UPWARD PURSUANT TO THE CLASSIFICATION ACT OF 1949 AND WHO, ALTHOUGH QUALIFIED TO PERFORM THE DUTIES AND CARRY OUT THE RESPONSIBILITIES OF THE POSITION, IS NOT ELIGIBLE TO BE IMMEDIATELY PROMOTED TO A HIGHER GRADE BECAUSE OF THE SERVICE-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT, MAY BE REGARDED AS REMAINING IN STATUS QUO AS ON DETAIL UNTIL HE IS ELIGIBLE FOR THE HIGHER GRADE AND HE IS NOT ENTITLED TO RECEIVE THE SALARY OF THE HIGHER GRADE DURING SUCH PERIOD.

WE SAID IN OUR DECISION TO YOU THAT WE DO NOT BELIEVE MR. BUDD'S CASE IS ONE FALLING WITHIN THE "NORMAL LINE OF PROMOTION" RULE. WE POINTED OUT THAT THE CIVIL SERVICE COMMISSION HAD REPORTED THAT IT IS OF THE OPINION THE GRADE GS-14 POSITION WAS REALLOCATED TO GRADE GS-15 AND THAT THE CASE IS NOT ONE THAT MAY PROPERLY FALL WITHIN THE FOREGOING RULE. THE LETTER FROM THE DEPUTY ADMINISTRATOR STATES THAT THE VETERANS ADMINISTRATION DOES NOT CONCUR IN THE CIVIL SERVICE COMMISSION'S OPINION IN THE CASE AND CONTENDS THAT THE GRADE 14 POSITION WAS "RESTATED" AND WAS NOT "REGRADED" OR "REALLOCATED.'

WE SUBMITTED YOUR DEPUTY ADMINISTRATOR'S LETTER OF JULY 27, 1959, TO THE COMMISSION WITH A REQUEST FOR ITS VIEWS UPON THE CONTENTIONS PRESENTED IN THE LETTER. THE COMMISSION HAS ADVISED US THAT THE TWO POSITION DESCRIPTIONS HAVE BEEN REVIEWED AGAIN BY ONE OF THE COMMISSION'S CLASSIFICATION AUTHORITIES WHO FINDS NOTHING IN THE REQUEST FOR REVIEW TO CHANGE HIS ORIGINAL DETERMINATION THAT THE GS-14 POSITION WAS SIMPLY REALLOCATED OR REGRADED. ALSO, THE COMMISSION SAYS THAT THIS CASE DOES NOT PROPERLY FALL UNDER THE "NORMAL LINE OF PROMOTION" EXCEPTION TO THE REQUIREMENTS OF THE WHITTEN AMENDMENT BECAUSE THE GRADE GS-14 POSITION WAS IN EXISTENCE AT THE TIME THE PROMOTION TO GS-15 WAS MADE.

YOUR AGENCY ALLEGES THAT THE ADDITION OF DUTIES TO THE GS-14 POSITION RESULTED IN A REORGANIZATION, AND THAT AT THE TIME THE GS-15 POSITION WAS ESTABLISHED THE GS-14 POSITION WAS ABOLISHED SO THAT IT WAS ELIMINATED FROM THE NORMAL LINE OF PROMOTION. THAT ALLEGATION IS JUSTIFIED UPON THE BASIS OF A REORGANIZATION WHICH IS COVERED BY PAGE X-1-32.04 OF THE FEDERAL PERSONNEL MANUAL AND READS IN PERTINENT PART AS FOLLOWS:

"WHERE A SURVEY OR REORGANIZATION HAS RESULTED IN A CHANGE IN THE ORGANIZATIONAL ENTITY, THE NORMAL LINE OF PROMOTION IS DETERMINED ON THE BASIS OF THE NEW ORGANIZATION AND NOT ON THE BASIS OF THE OLD ORGANIZATION OR A COMBINATION OF THE OLD AND THE NEW.'

THE COMMISSION REPORTS THAT THE ABOVE-QUOTED STATEMENT WAS INTENDED TO ESTABLISH THE FACT THAT THE REORGANIZED ORGANIZATIONAL ENTITY WAS TO BE VIEWED AS IT EXISTS WHEN THE PROMOTION IS TO BE MADE, RATHER THAN WHEN THE EMPLOYEE ENTERS INTO THE LOWER-GRADE POSITION, AND IT GIVES THE FOLLOWING EXAMPLE AS WHAT WAS INTENDED TO BE COVERED BY THE QUOTED STATEMENT:

"SUPPOSE THERE WERE POSITIONS AT GS-13, GS-14, AND GS-15 ON DECEMBER 30, 1956, WHEN AN EMPLOYEE ENTERED ON DUTY IN THE GS-13 POSITION. REORGANIZATION OCCURS ON JUNE 30, 1957, IN WHICH THE GS-14 POSITION IS ABOLISHED. ON DECEMBER 31, 1957, WHEN THE EMPLOYING AGENCY WANTS TO PROMOTE THE EMPLOYEE FROM GS-13 TO GS-15 IT WILL BE ALLOWED TO DO SO AS THE NORMAL LINE OF PROMOTION AT THAT TIME IS FROM GS-13 TO GS-15. WOULD NOT LOOK BACK AT THE EARLIER ORGANIZATIONAL STRUCTURE AND SAY THAT IT CONTROLLED AS IT WAS IN EXISTENCE WHEN THE EMPLOYEE ENTERED THE GS-13 POSITION.'

THE COMMISSION SAYS THAT TO ALLOW A PROMOTION WITHOUT MEETING THE SERVICE -IN-GRADE REQUIREMENT WHEN THE REORGANIZATION THAT ABOLISHED THE INTERVENING POSITION OCCURS CONCURRENTLY WITH THE ESTABLISHMENT OF THE HIGHER GRADE POSITION WOULD CONSTITUTE AN EVASION OF THE PURPOSE OF THE WHITTEN AMENDMENT, AND THAT THE ORGANIZATIONAL ENTITY MUST BE VIEWED WITH THE INTERVENING POSITION IN EXISTENCE AT THE TIME OF MR. BUDD'S PROMOTION THEREBY ELIMINATING HIS PROMOTION FROM THE ,NORMAL LINE OF PROMOTION" RULE. THE COMMISSION POINTS OUT THAT WHEN THE EMPLOYEE IN YOUR AGENCY WAS PROMOTED FROM GS-14 TO GS-15 THE VERY FACT OF HIS INCUMBENCY IN THE GS-14 POSITION ESTABLISHED THAT THE NORMAL LINE OF PROMOTION WAS NOT FROM GS-13 TO GS-15.

THEREFORE, IN VIEW OF THE COMMISSION'S RESPONSIBILITY IN ADMINISTERING THE WHITTEN AMENDMENT, AND ITS POSITION IN THIS CASE AS DISCLOSED ABOVE, OUR DECISION OF JULY 6, 1959, B-139584, TO YOU, IS SUSTAINED.