B-155947, FEB. 17, 1965

B-155947, FEB. 17, 1965

TO MRS. VIRGINIA HOLMES:

ON JANUARY 1, 1965, YOU REQUESTED THAT WE REVIEW YOUR CLAIM WHICH WAS DISALLOWED IN OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 31, 1962.

YOUR CLAIM IS FOR $1,680 AND REPRESENTS COMPENSATION BELIEVED TO BE DUE YOU FOR A PERIOD OF REMOVAL FROM THE SERVICE, JANUARY 31 TO JUNE 26, 1959; THE CIVIL SERVICE COMMISSION HAVING ORDERED YOUR RESTORATION TO DUTY BECAUSE OF A PROCEDURAL ERROR IN THE REMOVAL PROCEEDINGS. THE CLAIM WAS DISALLOWED BECAUSE YOUR SEPARATION ON JANUARY 30, 1959, OCCURRED BEFORE YOU COMPLETED A REQUIRED ONE-YEAR PROBATIONARY SERVICE IN THE POSTAL SERVICE, SO AS TO QUALIFY AS BEING IN "THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF 5 U.S.C. 652, THE STATUTE AUTHORIZING BACK PAY IN SUSPENSION AND REMOVAL CASES.

YOU REQUEST REVIEW OF THE MATTER BASED ON THE FACT THAT YOU HAD COMPLETED A PROBATIONARY PERIOD DURING YOUR EMPLOYMENT FROM MARCH 21, 1956, TO FEBRUARY 7, 1958, AS A CLERK-TYPIST WITH THE DEPARTMENT OF THE AIR FORCE, WHICH PRECEDED YOUR TRANSFER (CAREER) APPOINTMENT TO THE POSTAL SERVICE AS A SUBSTITUTE DISTRIBUTION CLERK AT THE PHOENIX POST OFFICE. FURTHER YOU POINT TO SECTION 712.223B, TITLE 7, POSTAL MANUAL (1954 EDITION) WHICH PROVIDES THAT "THE TRANSFER OF AN EMPLOYEE TO THE POSTAL SERVICE BEFORE HE HAS COMPLETED PROBATION IS SUBJECT TO COMPLETION OF THE PROBATIONARY PERIOD," AND THAT "NO NEW PROBATION IS REQUIRED IF THE PROBATION WAS COMPLETED BEFORE TRANSFER.' IN VIEW THEREOF YOU CONTEND YOU WERE "NEVER ON A PROBATIONARY STATUS" IN THE PHOENIX POST OFFICE, NOTWITHSTANDING THE REMARKS (ITEM 34) IN NOTIFICATION OF PERSONNEL ACTION DATED JANUARY 29, 1958, EFFECTIVE FEBRUARY 8, 1958. THAT ITEM SPECIFIED THAT YOUR TRANSFER TO THE POSTAL SERVICE IS "SUBJECT TO SATISFACTORY COMPLETION OF PROBATIONARY PERIOD (ONE YEAR) STARTING 2-8-58.' ALSO, WE NOTE THAT THAT PERSONNEL ACTION WAS "APPROVED 1-30-58" BY THE "EXAMINER IN CHARGE, U.S. BOARD OF CS EXAMINERS, PHOENIX, ARIZONA.'

SECTION 712.223B OF TITLE 7 OF THE POSTAL MANUAL TO WHICH YOU REFER OBVIOUSLY WAS NOT INTENDED TO APPLY TO AN APPOINTMENT TO A POSITION IN THE POSTAL SERVICE FROM A CIVIL SERVICE REGISTER SUCH AS IN YOUR CASE. THAT VIEW IS SUPPORTED BY A READING OF THE ADMINISTRATIVE REGULATIONS AS A WHOLE. FOR EXAMPLE SEE SECTIONS 714.221 TO 714.226 (PTL 25, JANUARY 31, 1957, AMENDED BY PTL 40, APRIL 25, 1958, AND PTL 52, APRIL 20, 1959).

IN ANY EVENT THE MATTER WOULD BE GOVERNED BY THE CIVIL SERVICE REGULATIONS, AS AMENDED DECEMBER 16, 1954 (19 FED. REG. 8604 AT PAGE 8610/ --- QUOTING THE CUMULATIVE POCKET SUPPLEMENT OF 1960, 5 CFR, IN PERTINENT PART, AS FOLLOWS:

"SEC. 2.301 APPOINTMENTS FROM REGISTERS--- (A) CAREER-CONDITIONAL APPOINTMENT. (1) AN ELIGIBLE SELECTED FROM A REGISTER FOR OTHER THAN TEMPORARY APPOINTMENT SHALL BE GIVEN A CAREER-CONDITIONAL APPOINTMENT, EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION.

"/3) AN ELIGIBLE GIVEN A CAREER-CONDITIONAL APPOINTMENT SHALL BE REQUIRED TO SERVE A PROBATIONARY PERIOD OF ONE YEAR. PRIOR SERVICE WHICH SHALL BE COUNTED TOWARD COMPLETION OF PROBATION SHALL BE PUBLISHED IN THE FEDERAL PERSONNEL MANUAL. THE AGENCY SHALL UTILIZE THE PROBATIONARY PERIOD AS FULLY AS POSSIBLE TO DETERMINE THE FITNESS OF THE EMPLOYEE AND SHALL TERMINATE HIS SERVICES DURING SUCH PERIOD IF HE FAILS TO DEMONSTRATE FULLY HIS QUALIFICATIONS FOR CONTINUED FEDERAL EMPLOYMENT. THE EMPLOYEE SHALL AUTOMATICALLY ACQUIRE A COMPETITIVE STATUS UPON SATISFACTORY COMPLETION OF PROBATION.

"/B) INITIAL CAREER APPOINTMENT. (1) AN ELIGIBLE SELECTED FROM A CIVIL SERVICE REGISTER FOR OTHER THAN TEMPORARY APPOINTMENT SHALL BE GIVEN A CAREER APPOINTMENT IF:

"/III) HE IS SELECTED FOR A POSITION PAID UNDER THE POSTAL PAY ACT OF JULY 6, 1945, AS AMENDED AND SUPPLEMENTED; OR

"/2) AN ELIGIBLE SELECTED FOR CAREER APPOINTMENT SHALL BE REQUIRED TO SERVE A PROBATIONARY PERIOD, SUBJECT TO THE SAME CONDITIONS AS APPLY TO CAREER-CONDITIONAL APPOINTMENT.'

IN LINE WITH THE SECOND SENTENCE OF SECTION 2.301 (A) (3), ABOVE, THE FEDERAL PERSONNEL MANUAL, AT PAGE S-2-19 (TS 536) PRESCRIBES THE FOLLOWING CONDITIONS FOR THE COUNTING OF SERVICE TOWARD COMPLETION OF A NEW PROBATIONARY PERIOD IN CONNECTION WITH CAREER-CONDITIONAL OR CAREER APPOINTMENTS AND CONVERSIONS:

"/A) IT WAS RENDERED IMMEDIATELY PRECEDING CAREER OR CAREER CONDITIONAL APPOINTMENT OR CONVERSION. THE EMPLOYEE MUST HAVE BEEN ON THE ROLLS OF THE AGENCY AT THE TIME OF THE CAREER OR CAREER-CONDITIONAL APPOINTMENT OR CONVERSION. * * *

"/B) IT WAS IN THE SAME LINE OF WORK AND IN THE SAME AGENCY AS THE POSITION WITH RESPECT TO WHICH THE ACTION IS TAKEN. ALL SERVICE TO BE COUNTED MUST HAVE BEEN CONTINUOUSLY IN THE SAME LINE OF WORK * * *.' THE ABOVE-QUOTED PROVISIONS WERE EXPLAINED IN THE THIRD AND FOURTH PARAGRAPHS OF OUR SETTLEMENT LETTER OF JANUARY 31, 1962, TO YOU. THE FOURTH PARAGRAPH ALSO REFERRED TO THE COURT OF CLAIMS CASE OF MAX BANDER V. UNITED STATES (1958), 141 CT.CL. 373, CERTIORARI DENIED, 358 U.S. 855. THAT CASE, BANDER, A VETERAN WITH COMPETITIVE CIVIL SERVICE STATUS ACQUIRED IN THE DEPARTMENT OF COMMERCE, WAS APPOINTED AS A MAIL CARRIER BY THE POST OFFICE DEPARTMENT. THE APPOINTMENT WAS SUBJECT TO A ONE-YEAR PROBATIONARY PERIOD UNDER THE 1949 REGULATIONS THEREIN CONSIDERED, WHICH WERE REVISED AND RENUMBERED IN 1954 AS SET OUT ABOVE. THE COURT HELD THAT COMPLETION OF A PROBATIONARY PERIOD IN ANOTHER LINE OF WORK WITH A DIFFERENT AGENCY DID NOT EXEMPT BANDER FROM SERVING THE PROBATIONARY PERIOD REQUIRED BY THE POST OFFICE DEPARTMENT.

IN THE LIGHT OF THE FOREGOING REGULATORY AUTHORITIES, AND OF THE EXPLANATION GIVEN YOU OF THE LAW AND THE FACTS IN THE LAST PARAGRAPH OF THE SETTLEMENT LETTER OF JANUARY 31, 1962, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.