B-22059, DECEMBER 10, 1941, 21 COMP. GEN. 550

B-22059: Dec 10, 1941

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COMPENSATION - WITHIN-GRADE PROMOTIONS - ELIGIBILITY APPOINTMENTS UNDER SECTIONS 2 AND 4 OF RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS ( EXECUTIVE ORDER NO. 7915) ARE DESIGNATED THEREIN AS "TEMPORARY. EMPLOYEES HOLDING POSITIONS BY REASON OF SUCH APPOINTMENTS ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1. THEY ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1. EMPLOYEES WHO ARE APPOINTED FROM THE EMERGENCY REPLACEMENT LIST UNDER AUTHORITY OF EXECUTIVE ORDER NO. 8952 AND WHOSE APPOINTMENTS ARE NOT FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS ARE OCCUPYING PERMANENT POSITIONS. THEY ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1. EMPLOYEES WHO ARE APPOINTED UNDER THE AUTHORITY OF EXECUTIVE ORDER NO. 8564 TO FILL POSITIONS CONNECTED WITH THE NATIONAL DEFENSE PROGRAM FOR A TERM NOT EXTENDING BEYOND THE DURATION OF SUCH PROGRAM.

B-22059, DECEMBER 10, 1941, 21 COMP. GEN. 550

COMPENSATION - WITHIN-GRADE PROMOTIONS - ELIGIBILITY APPOINTMENTS UNDER SECTIONS 2 AND 4 OF RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS ( EXECUTIVE ORDER NO. 7915) ARE DESIGNATED THEREIN AS "TEMPORARY," AND, THEREFORE, EMPLOYEES HOLDING POSITIONS BY REASON OF SUCH APPOINTMENTS ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES "OCCUPYING PERMANENT POSITIONS.' EMPLOYEES APPOINTED FROM THE EMERGENCY REPLACEMENT LIST UNDER AUTHORITY OF EXECUTIVE ORDER NO. 8458, AS AMENDED, OCCUPY POSITIONS "DESIGNATED AS TEMPORARY BY LAW" FOR THE PERIOD PRIOR TO JANUARY 1942, THE EFFECTIVE DATE OF EXECUTIVE ORDER NO. 8952 REVOKING SAID EXECUTIVE ORDER NO. 8458, AND, THEREFORE, PRIOR TO JANUARY 1, 1942, THEY ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES "OCCUPYING PERMANENT POSITIONS.' EMPLOYEES WHO ARE APPOINTED FROM THE EMERGENCY REPLACEMENT LIST UNDER AUTHORITY OF EXECUTIVE ORDER NO. 8952 AND WHOSE APPOINTMENTS ARE NOT FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS ARE OCCUPYING PERMANENT POSITIONS, AND THEREFORE, THEY ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS. EMPLOYEES WHO ARE APPOINTED UNDER THE AUTHORITY OF EXECUTIVE ORDER NO. 8564 TO FILL POSITIONS CONNECTED WITH THE NATIONAL DEFENSE PROGRAM FOR A TERM NOT EXTENDING BEYOND THE DURATION OF SUCH PROGRAM, AND WHOSE APPOINTMENTS ARE NOT FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS, OCCUPY ,PERMANENT POSITIONS," AND, THEREFORE, ARE ENTITLED TO THE BENEFIT OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 10, 1941:

I HAVE YOUR LETTER OF NOVEMBER 14, 1941, AS FOLLOWS:

THE DEPARTMENT HAS RECEIVED A COPY OF YOUR DECISION B-20925, DATED OCTOBER 27, 1941, ADDRESSED TO THE SECRETARY OF THE INTERIOR, IN WHICH ARE ANSWERED SEVERAL QUESTIONS PRESENTED BY THAT DEPARTMENT IN CONNECTION WITH THE INTERPRETATION OF THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 77TH CONGRESS.

THE FOLLOWING IS QUOTED FROM THAT DECISION:

"THE ACT OF AUGUST 1, 1941, SUPRA, PROVIDES A PLAN FOR MAKING WITHIN- GRADE SALARY ADVANCEMENTS TO EMPLOYEES ON THE BASIS OF THEIR INDIVIDUAL SERVICE. SEE 21 COMP. GEN. 118, 119. HENCE, IT IS THE STATUS OF THE INDIVIDUAL EMPLOYEE WHICH MUST CONTROL IN DETERMINING WHETHER THE EMPLOYEE IS OCCUPYING A "PERMANENT POSITION" AT THE BEGINNING OF ANY QUARTER. WHETHER A POSITION IS ,PERMANENT" OR "TEMPORARY" WITHIN THE MEANING OF THE LAW AND REGULATIONS IS DETERMINED BY THE TENURE OF EMPLOYMENT OF THE INDIVIDUAL EMPLOYEE UNDER THE TERMS OF ANY APPLICABLE LAW, OR THE TERMS AND CONDITIONS OF HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT. THE CIVIL- SERVICE LAW AND THE RULES AND REGULATIONS THEREUNDER CONSTITUTE A "LAW" WITHIN THE MEANING OF SECTION 1 (A) OF THE PRESIDENT'S REGULATIONS DEFINING "PERMANENT POSITIONS.' ACCORDINGLY, ANY APPOINTMENT OR EMPLOYMENT MADE UNDER A CIVIL-SERVICE RULE OR REGULATION SPECIFICALLY DESIGNATING AN APPOINTMENT AS ,TEMPORARY," SUCH AS RULE VIII ENTITLED " TEMPORARY APPOINTMENT," REGARDLESS OF THE LENGTH OF TIME THE EMPLOYEE MAY SERVE UNDER SUCH A TEMPORARY APPOINTMENT, SHOULD BE REGARDED AS CREATING A TEMPORARY POSITION, RATHER THAN A PERMANENT POSITION, WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER.

THE DEPARTMENT HAS A GREAT NUMBER OF EMPLOYEES WHO ARE SERVING UNDER SECTION 2 OF RULE VIII, IN THE ABSENCE OF PROBATIONAL REGISTERS, FOR THE DURATION OF THE EMERGENCY, AND ALSO A GREAT NUMBER OF EMPLOYEES SERVING UNDER SECTION 4 OF RULE VIII FOR THE DURATION OF THE EMERGENCY, HAVING BEEN APPOINTED UNDER EMERGENCY CONDITIONS WHEREIN THERE WAS NOT SUFFICIENT TIME TO OBTAIN PROBATIONAL OR PERMANENT EMPLOYEES. THE DEPARTMENT ALSO HAS A LARGE NUMBER OF EMPLOYEES SERVING UNDER EXECUTIVE ORDERS NO. 8564 AND 8458, THEIR APPOINTMENTS BEING DESIGNATED AS "TEMPORARY" FOR THE DURATION OF THE EMERGENCY. IT IS THE OPINION OF THE DEPARTMENT THAT THE POSITIONS OCCUPIED BY ALL THESE EMPLOYEES ARE NOT "TEMPORARY" WITHIN THE MEANING OF THE ACT AND THE REGULATIONS IN THAT THEIR APPOINTMENTS ARE NOT LIMITED FOR A PERIOD OF SIX MONTHS OR LESS.

A DECISION IS REQUESTED AS TO WHETHER ALL OF THESE EMPLOYEES WHOSE INDIVIDUAL APPOINTMENTS ARE DESIGNATED AS "TEMPORARY," BUT WHO ARE APPOINTED FOR THE DURATION OF THE EMERGENCY OR FOR PERIODS LONGER THAN SIX MONTHS, ARE ELIGIBLE FOR AUTOMATIC SALARY ADVANCEMENTS UNDER PUBLIC LAW 200, 77TH CONGRESS, PROVIDED THEY ARE OTHERWISE ELIGIBLE.

SECTIONS 2 AND 4 OF RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS ENTITLED "TEMPORARY APPOINTMENT" ( EXECUTIVE ORDER NO. 7915, DATED JUNE 24, 1938--- EXECUTIVE ORDER NO. 8587 NOT AMENDING THESE SECTIONS), PROVIDE AS FOLLOWS:

2. PENDING ESTABLISHMENT OF REGISTER.--- WHENEVER THERE ARE NO ELIGIBLES UPON A REGISTER FOR ANY GRADE IN WHICH A VACANCY EXISTS AND THE PUBLIC INTEREST REQUIRES THAT THE VACANCY BE FILLED BEFORE ELIGIBLES CAN BE PROVIDED BY THE COMMISSION, THE COMMISSION MAY AUTHORIZE TEMPORARY APPOINTMENT WITHOUT EXAMINATION. SUCH APPOINTMENT SHALL CONTINUE ONLY FOR SUCH PERIOD AS MAY BE NECESSARY TO MAKE APPOINTMENT THROUGH CERTIFICATION, AND IN NO CASE, WITHOUT PRIOR APPROVAL OF THE COMMISSION, SHALL EXTEND BEYOND THIRTY DAYS FROM THE DATE OF THE RECEIPT BY THE APPOINTING OFFICER OF THE COMMISSION'S CERTIFICATION OF ELIGIBLES.

4.JOB EMPLOYMENT.--- WHEN THERE IS WORK OF A TEMPORARY CHARACTER, AT THE COMPLETION OF WHICH THE SERVICES OF AN ADDITIONAL EMPLOYEE WILL NOT BE REQUIRED, A TEMPORARY APPOINTMENT MAY BE MADE WITH THE PRIOR CONSENT OF THE COMMISSION FOR A PERIOD NOT TO EXCEED 3 MONTHS, AND MAY WITH LIKE CONSENT OF THE COMMISSION FOR A PERIOD NOT TO EXCEED 3 MONTHS, AND MAY WITH LIKE CONSENT OF THE COMMISSION BE EXTENDED FOR A FURTHER PERIOD OF 3 MONTHS. SUCH TEMPORARY APPOINTMENT SHALL BE MADE THROUGH CERTIFICATION FROM THE COMMISSION'S ELIGIBLE REGISTERS UNLESS THE COMMISSION SHALL DECIDE, IN A PARTICULAR CASE, THAT THERE ARE NO AVAILABLE ELIGIBLES. SUCH TEMPORARY APPOINTMENT SHALL NOT EXTEND BEYOND 6 MONTHS, UNLESS THERE ARE NO ELIGIBLES AVAILABLE FOR THE ADDITIONAL PERIOD OR UNDER UNUSUAL CIRCUMSTANCES WHICH SEEM TO THE COMMISSION TO JUSTIFY AN EXTENSION BEYOND 6 MONTHS; AND IN NO CASE SHALL SUCH TEMPORARY APPOINTMENT EXTEND BEYOND 6 MONTHS FOR ANY PURPOSE OTHER THAN TO COMPLETE THE JOB OF WORK FOR WHICH THE PERSON WAS ORIGINALLY EMPLOYED. THE COMMISSION MAY RESTRICT CERTIFICATION FOR TEMPORARY APPOINTMENT TO SUCH ELIGIBLES AS BY REASON OF RESIDENCE OR OTHER CONDITIONS ARE IMMEDIATELY AVAILABLE. ( ITALICS SUPPLIED.)

THE WITHIN-GRADE SALARY-ADVANCEMENT PLAN PROVIDED BY THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, IS SPECIFICALLY LIMITED TO EMPLOYEES OCCUPYING "PERMANENT POSITIONS.' SEE SECTION 2 OF THE STATUTE. SECTION 1 (A) OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, DEFINES ,PERMANENT POSITIONS" AS FOLLOWS:

"PERMANENT POSITIONS" SHALL INCLUDE ALL POSITIONS EXCEPT THOSE DESIGNATED AS TEMPORARY BY LAW AND THOSE ESTABLISHED FOR DEFINITE PERIOD OF SIX MONTHS OR LESS. ( ITALICS SUPPLIED.)

IT WAS HELD IN THE DECISION OF OCTOBER 27, 1941, B-20925, 21 COMP. GEN. 369, THE PERTINENT PORTION OF WHICH IS QUOTED IN YOUR LETTER, SUPRA, THAT THE CIVIL-SERVICE LAW AND THE RULES AND REGULATIONS THEREUNDER CONSTITUTE A "LAW" WITHIN THE MEANING OF THE PRESIDENT'S REGULATION DEFINING "PERMANENT POSITIONS.' IT IS NOT BELIEVED THAT SUCH VIEW COULD SERIOUSLY BE CONTENDED TO BE ERRONEOUS. APPOINTMENTS MADE UNDER SECTIONS 2 AND 4 OF CIVIL SERVICE RULE VIII UNQUESTIONABLY ARE ,DESIGNATED AS TEMPORARY" (QUOTING FROM THE PRESIDENT'S REGULATION) BY THE PROVISIONS OF THE RULES. (SEE ITALICIZED PORTION.) ACCORDINGLY, THE CONCLUSION SEEMS INESCAPABLE THAT ANY EMPLOYEE WHO MAY BE OCCUPYING A POSITION "DESIGNATED AS TEMPORARY BY LAW"--- THAT IS, UNDER AUTHORITY OF SECTIONS 2 AND 4 OF RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS--- DOES NOT COME WITHIN THE PURVIEW OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, PROVIDING A PLAN FOR MAKING WITHIN GRADE SALARY ADVANCEMENTS TO EMPLOYEES "OCCUPYING PERMANENT POSITIONS.' IT WOULD FOLLOW, THEREFORE, THAT SUCH EMPLOYEES ARE NOT ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF SAID LAW. COMPARE 19 COMP. GEN. 125.

EXECUTIVE ORDER NO. 8458, DATED JUNE 27, 1940, AS AMENDED BY EXECUTIVE ORDER NO. 8532, DATED SEPTEMBER 4, 1940, READS AS FOLLOWS: DIRECTING THE CIVIL SERVICE COMMISSION TO ESTABLISH A

REPLACEMENT LIST OF NON-1CIVIL-1SERVICE EMPLOYEES FOR USE FOR

TEMPORARY APPOINTMENTS TO NATIONAL-DEFENSE POSITIONS

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1753 OF THE REVISED STATUTES ( U.S.C., TITLE 5, SEC. 631), BY THE CIVIL SERVICE ACT (22 STAT. 402), AND AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY ORDERED AS FOLLOWS:

1. THE CIVIL SERVICE COMMISSION SHALL ESTABLISH A REPLACEMENT LIST OF EMPLOYEES WHO DO NOT POSSESS A COMPETITIVE CIVIL-SERVICE STATUS, WHO HAVE BEEN INVOLUNTARILY SEPARATED FROM THE FEDERAL SERVICE, WITH GOOD RECORDS, ON OR AFTER JUNE 30, 1939, AND WHO HAVE HAD AT LEAST SIX MONTHS OF GOVERNMENT SERVICE IMMEDIATELY PRIOR TO SEPARATION; SUCH LIST TO BE USED FOR TEMPORARY APPOINTMENTS TO NATIONAL-DEFENSE POSITIONS FOR TERMS NOT EXTENDING BEYOND THE DURATION OF THE NATIONAL DEFENSE POSITIONS FOR TERMS NOT EXTENDING BEYOND THE DURATION OF THE NATIONAL-DEFENSE PROGRAM.

2. THE COMMISSION SHALL DETERMINE WHAT POSITIONS ARE NATIONAL DEFENSE POSITIONS, AND SHALL PRESCRIBE SUCH REGULATIONS AS MAY BE NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS ORDER. SUCH REGULATIONS SHALL, AMONG OTHER THINGS (A) PRESCRIBE THE CONDITIONS OF ENTRY ON SUCH LIST, INCLUDING THE PASSING OF NONCOMPETITIVE TESTS OF FITNESS AND CHARACTER INVESTIGATIONS, (B) FORMULATE THE PLAN BY WHICH CERTIFICATIONS FROM SUCH LIST ARE TO BE MADE, AND (C) PROVIDE OPPORTUNITY FOR THE USE OF SUCH LIST IN THEIR DISCRETION BY AGENCIES HAVING NATIONAL-DEFENSE POSITIONS.

3. PERSONS APPOINTED FROM SUCH LIST SHALL NOT ACQUIRE A COMPETITIVE CIVIL -SERVICE STATUS BY VIRTUE OF SUCH APPOINTMENT. ( ITALICS SUPPLIED.)

CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 224, DATED JULY 11, 1940, IMPLEMENTING THIS EXECUTIVE ORDER, CONTAINS THE FOLLOWING:

A. PURSUANT TO THE AUTHORITY CONFERRED BY THE EXECUTIVE ORDER QUOTED ABOVE, THE COMMISSION HEREBY ESTABLISHES AN EMERGENCY REPLACEMENT LIST WHICH MAY, SUBJECT TO THESE REGULATIONS AND IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, BE UTILIZED FOR TEMPORARY APPOINTMENT TO POSITIONS IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE WHICH ARE DIRECTLY CONCERNED WITH THE PREPAREDNESS AND NATIONAL DEFENSE PROGRAM. ( ITALICS SUPPLIED.)

SEE, ALSO, SUPPLEMENT NO. 3 OF THE ABOVE CIRCULAR DATED AUGUST 26, 1940, WHEREIN IT IS STATED AS FOLLOWS:

THE EMERGENCY REPLACEMENT LIST IS UTILIZED FOR TEMPORARY APPOINTMENTS TO POSITIONS IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE WHICH ARE DIRECTLY CONCERNED WITH THE PREPAREDNESS AND NATIONAL DEFENSE PROGRAM. ( ITALICS SUPPLIED.)

EXECUTIVE ORDER NO. 8952, DATED NOVEMBER 27, 1941 (PUBLISHED IN THE FEDERAL REGISTER DECEMBER 2, 1941), PROVIDES AS FOLLOWS: REVOKING EXECUTIVE ORDER NO. 8458 OF JUNE 27, 1940, AS AMENDED BY

EXECUTIVE ORDER NO. 8532 OF SEPTEMBER 4, 1940, AND AUTHORIZING

PERSONS APPOINTED FROM THE EMERGENCY REPLACEMENT LIST

ESTABLISHED PURSUANT TO SUCH ORDERS TO ACQUIRE A CLASSIFIED

CIVIL SERVICE STATUS

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE CIVIL SERVICE ACT (22 STAT. 403), BY SECTION 1753 OF THE REVISED STATUTES ( U.S.C., TITLE 5, SEC. 631), AND AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY ORDERED AS FOLLOWS:

1. EXCEPT AS CONCERNS TEMPORARY EMPLOYEES OF THE DECENNIAL CENSUS FORCE WHO WERE APPOINTED THROUGH CIVIL SERVICE EXAMINATIONS, EXECUTIVE ORDER NO. 8458 OF JUNE 27, 1940, AS AMENDED BY EXECUTIVE ORDER NO. 8532 OF SEPTEMBER 4, 1940, PROVIDING FOR THE ESTABLISHMENT OF A REPLACEMENT LIST (KNOWN AS THE EMERGENCY REPLACEMENT LIST) OF EMPLOYEES WHO DO NOT POSSESS A COMPETITIVE CIVIL SERVICE STATUS, IS HEREBY REVOKED, EFFECTIVE DECEMBER 31, 1941.

2. ALL PERSONS WHO HAVE BEEN OR MAY BE DULY APPOINTED FROM THE SAID EMERGENCY REPLACEMENT LIST TO POSITIONS IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE SUBSEQUENT TO JUNE 30, 1941, WHO ENTER ON DUTY NOT LATER THAN DECEMBER 31, 1942, AND WHO BY SUCH DATE HAVE COMPLETED A CONTINUOUS FEDERAL SERVICE OF NOT LESS THAN SIX MONTHS WITHIN THE CALENDAR YEARS 1941 AND 1942, MAY ACQUIRE A CLASSIFIED CIVIL SERVICE STATUS IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE ACT OF NOVEMBER 26, 1940 (54 STAT. 1211), AND EXECUTIVE ORDER NO. 8743 OF APRIL 23, 1941.

3. EACH APPOINTMENT IN THE CLASSIFIED DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF THIS EXECUTIVE ORDER SHALL BE CHARGED TO THE REGULAR APPORTIONMENT OF APPOINTMENTS AMONG THE STATES AND TERRITORIES AND THE DISTRICT OF COLUMBIA. ( ITALICS SUPPLIED.)

AS BOTH EXECUTIVE ORDER NO. 8458, AS AMENDED BY EXECUTIVE ORDER NO. 8532, AND THE CIVIL SERVICE REGULATION ISSUED UNDER EXPRESS AUTHORITY OF THE EXECUTIVE ORDER, DESIGNATE THE APPOINTMENTS OF THE CHARACTER SET FORTH IN YOUR LETTER AS "TEMPORARY," THE EMPLOYEES SO APPOINTED MAY NOT BE REGARDED AS OCCUPYING "PERMANENT POSITIONS" WITHIN THE MEANING OF THE PRESIDENT'S REGULATIONS PRIOR TO JANUARY 1, 1942, AND MAY NOT BE GRANTED WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, PRIOR TO JANUARY 1, 1942, SAID EXECUTIVE ORDER REMAINING IN FULL FORCE AND EFFECT UNTIL THAT TIME BY VIRTUE OF THE ONE ISSUED NOVEMBER 27, 1941, SUPRA.

HOWEVER, AS EXECUTIVE ORDER NO. 8952, DATED NOVEMBER 27, 1941, REVOKES EXECUTIVE ORDER NO. 8458, AS AMENDED, EFFECTIVE DECEMBER 31, 1941, AND AS SAID EXECUTIVE ORDER NO. 8952 (EFFECTIVE ON AND AFTER JANUARY 1, 1942) DOES NOT DESIGNATE APPOINTMENTS FROM THE REPLACEMENT LIST AS "TEMPORARY," AND DOES NOT OTHERWISE LIMIT SUCH APPOINTMENTS TO A TEMPORARY PERIOD, EMPLOYEES OCCUPYING POSITIONS UNDER SUCH APPOINTMENTS MADE EITHER PRIOR OR SUBSEQUENT TO JANUARY 1, 1942, WHICH ARE NOT ESTABLISHED BY THE TERMS OF THE APPOINTMENTS OR OTHERWISE FOR "DEFINITE PERIOD OF 6 MONTHS OR LESS" (QUOTING FROM THE PRESIDENT'S REGULATION), MAY BE GRANTED WITHIN-GRADE SALARY ADVANCEMENTS ON JANUARY 1, 1942, OR AT THE BEGINNING OF ANY SUBSEQUENT QUARTERS IF THE EMPLOYEES ARE THEN OTHERWISE QUALIFIED UNDER THE TERMS OF THE STATUTES AND THE PRESIDENT'S REGULATIONS. EXECUTIVE ORDER NO. 8564, DATED OCTOBER 8, 1940, PROVIDES AS FOLLOWS: AMENDMENT OF EXECUTIVE ORDER NO. 8257 OF SEPTEMBER 21, 1939,

AUTHORIZING EXCEPTED APPOINTMENTS TO MEET PUBLIC EXIGENCY

EXECUTIVE ORDER NO. 8257 OF SEPTEMBER 21, 1939, AUTHORIZING EXCEPTED APPOINTMENTS TO MEET PUBLIC EXIGENCY, IS HEREBY AMENDED TO READ AS FOLLOWS:

"BY VIRTUE OF THE AUTHORITY VESTED IN ME BY PARAGRAPH EIGHTH, SUBDIVISION SECOND, SECTION 2 OF THE CIVIL SERVICE COMMISSION DETERMINES THAT IT IS IN THE PUBLIC INTEREST TO DO SO, IT MAY AUTHORIZE THE FILLING OF ANY POSITION CONNECTED WITH THE NATIONAL-DEFENSE PROGRAM FOR A TERM NOT EXTENDING BEYOND THE DURATION OF THE NATIONAL DEFENSE PROGRAM, WITHOUT REGARD TO THE COMPETITIVE REQUIREMENTS OF THE CIVIL SERVICE RULES, SUBJECT TO SUCH NONCOMPETITIVE REQUIREMENTS OF THE CIVIL SERVICE RULES, SUBJECT TO SUCH NONCOMPETITIVE TESTS OF FITNESS AS THE COMMISSION MAY PRESCRIBE. PERSONS SO APPOINTED WILL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL SERVICE STATUS.' ( ITALICS SUPPLIED.)

CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 267, DATED JUNE 27, 1941, CONTAINS THE FOLLOWING:

APPOINTMENTS UNDER THE ABOVE AUTHORITY ARE IN EFFECT TEMPORARY, AS THEY ARE LIMITED TO THE DURATION OF THE PRESENT EMERGENCY. DEPARTMENTAL CIRCULAR NO. 160, SUPPLEMENT NO. 1 PROVIDED THAT TWO SEPARATE SERIES OF REPORTS OF CHANGES SHOULD BE PREPARED BY THE DEPARTMENTS, ONE COVERING PERMANENT EMPLOYEES AND THE OTHER TEMPORARY EMPLOYEES UNDER CIVIL SERVICE RULE VIII. BEGINNING JULY 1, 1941, ALL REPORTS OF APPOINTMENTS UNDER EXECUTIVE ORDER NO. 8564 AND ALL SUBSEQUENT CHANGES IN THE RECORDS OF PERSONS SO APPOINTED SHOULD BE ENTERED ON THE TEMPORARY SERIES OF REPORTS OF CHANGES. ( ITALICS SUPPLIED.)

WHILE THAT EXECUTIVE ORDER LIMITS APPOINTMENTS MADE UNDER AUTHORITY THEREOF "FOR A TERM NOT EXTENDING BEYOND THE DURATION OF THE NATIONAL DEFENSE PROGRAM," SUCH APPOINTMENTS ARE DESIGNATED AS "EXCEPTED," NOT "TEMPORARY," IN THE EXECUTIVE ORDER, WHICH IS THE ONLY "LAW" AUTHORIZING SUCH APPOINTMENTS. THE QUOTED CIVIL SERVICE CIRCULAR WHEREIN THESE APPOINTMENTS ARE STATED TO BE "IN EFFECT TEMPORARY" IS NOT ISSUED UNDER EXPRESS AUTHORITY OF THE EXECUTIVE ORDER, BUT UNDER THE GENERAL AUTHORITY OF THE CIVIL SERVICE COMMISSION, AND PRESCRIBES MERELY A CERTAIN PROCEDURE FOR REPORTING CHANGES AND TRANSFERS OF PERSONNEL, AND, ACCORDINGLY, DOES NOT CONSTITUTE A "LAW" DESIGNATING THE APPOINTMENTS OR POSITIONS AS "TEMPORARY.' THAT IS TO SAY, SAID CIRCULAR PARTAKES OF THE NATURE OF AN ADMINISTRATIVE REGULATION AS DISTINGUISHED FROM A STATUTORY REGULATION. COMPARE 21 COMP. DEC. 482. ACCORDINGLY, IF THE APPOINTMENTS MADE UNDER AUTHORITY OF EXECUTIVE ORDER NO. 8564 ARE NOT OTHERWISE "ESTABLISHED FOR DEFINITE PERIODS OF 6 MONTHS OR LESS" (QUOTING FROM THE PRESIDENT'S REGULATION), THE EMPLOYEES SO APPOINTED MAY BE REGARDED AS OCCUPYING "PERMANENT POSITIONS" AND ENTITLED TO THE BENEFITS OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200.