B-24902, APRIL 10, 1942, 21 COMP. GEN. 924

B-24902: Apr 10, 1942

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COMPENSATION - WITHIN-GRADE PROMOTIONS - "WAR SERVICE" APPOINTEES EMPLOYEES WHO WERE GIVEN APPOINTMENTS DESIGNATED AS "TEMPORARY" UNDER SECTION 2. WERE CHANGED UNDER AUTHORITY OF EXECUTIVE ORDER NO. 9063. ARE ENTITLED ON AND AFTER APRIL 1. 1942: I HAVE YOUR LETTER OF MARCH 27. RULE VIII WILL BE REGARDED AS SERVING UNDER EXECUTIVE ORDER 9063. RULE VIII WILL BE GIVEN PROBATIONAL APPOINTMENTS. RULE VIII WILL NOT THEREAFTER BE EFFECTED.'. IT WAS HELD THAT "ANY EMPLOYEE WHO MAY BE OCCUPYING A POSITION DESIGNATED AS TEMPORARY BY LAW. THAT IS. THAT SUCH EMPLOYEES ARE NOT ENTITLED TO A WITHIN GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF SAID LAW.'. IT WAS HELD THAT "WHILE THAT EXECUTIVE ORDER LIMITS APPOINTMENTS MADE UNDER AUTHORITY THEREOF FOR A TERM NOT EXTENDING BEYOND THE DURATION OF THE NATIONAL DEFENSE PROGRAM.

B-24902, APRIL 10, 1942, 21 COMP. GEN. 924

COMPENSATION - WITHIN-GRADE PROMOTIONS - "WAR SERVICE" APPOINTEES EMPLOYEES WHO WERE GIVEN APPOINTMENTS DESIGNATED AS "TEMPORARY" UNDER SECTION 2, RULE VIII, OF THE CIVIL SERVICE RULES AND REGULATIONS, BUT WHOSE APPOINTMENTS, EFFECTIVE MARCH 16, 1942, WERE CHANGED UNDER AUTHORITY OF EXECUTIVE ORDER NO. 9063, AND THE CIVIL SERVICE REGULATIONS ISSUED PURSUANT THERETO, TO " WAR SERVICE APPOINTMENTS" FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER, NOW OCCUPY PERMANENT POSITIONS WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS TO EMPLOYEES "OCCUPYING PERMANENT POSITIONS," SO THAT SUCH EMPLOYEES, IF OTHERWISE ELIGIBLE, ARE ENTITLED ON AND AFTER APRIL 1, 1942, TO THE BENEFITS OF THE STATUTE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, APRIL 10, 1942:

I HAVE YOUR LETTER OF MARCH 27, 1942 ( FILE LL/L16-4/400627) S MFL:ACG), AS FOLLOWS:

1. REGULATIONS PROMULGATED BY THE U.S. CIVIL SERVICE COMMISSION AS THE RESULT OF EXECUTIVE ORDERS 9063 OF FEBRUARY 16, 1942, AND 9067 OF FEBRUARY 20, 1942, PROVIDE AS FOLLOWS: "EFFECTIVE AS OF MARCH 16, 1942, ALL PERSONS SERVING UNDER SECTION 2, RULE VIII WILL BE REGARDED AS SERVING UNDER EXECUTIVE ORDER 9063; CHANGE OF RECORDS IN INDIVIDUAL CASES TO SHOW AUTHORITY UNDER EXECUTIVE ORDER NO. 9063 INSTEAD OF SECTION 2, RULE VIII, NEED NOT BE MADE. ON AND AFTER MARCH 16, 1942 NO PERSONS NOW SERVING UNDER SECTION 2, RULE VIII WILL BE GIVEN PROBATIONAL APPOINTMENTS, AND CONVERSIONS UNDER SECTION 5, RULE VIII WILL NOT THEREAFTER BE EFFECTED.'

IN DECISION DATED 10 DECEMBER 1941 (21 COMP. GEN. 550), TO THE SECRETARY OF WAR, IT WAS HELD 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.'

IN THIS SAME DECISION, WITH REGARD TO APPOINTMENTS EFFECTED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8564, IT WAS HELD THAT "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. ACCORDINGLY, IF THE APPOINTMENTS MADE UNDER AUTHORITY OF EXECUTIVE ORDER NO. 8564 ARE NOT OTHERWISE ESTABLISHED FOR DEFINITE PERIODS OF SIX MONTHS OR LESS, 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.'

IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES GIVEN TEMPORARY APPOINTMENTS PRIOR TO MARCH 16, 1942, AND WHOSE APPOINTMENTS WERE AUTOMATICALLY CHANGED TO " WAR SERVICE APPOINTMENTS" UNDER THE CIVIL SERVICE REGULATIONS REFERRED TO ABOVE, ARE ELIGIBLE FOR WITHIN-GRADE SALARY-ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, IF THEIR APPOINTMENTS ARE FOR THE DURATION OF THE WAR, AND NOT LIMITED TO PERIODS OF SIX MONTHS OR LESS.

BY DIRECTION OF THE SECRETARY OF THE NAVY.

THE REFERRED-TO DECISION OF DECEMBER 10, 1941, 21 COMP. GEN. 550, 552, HELD AS FOLLOWS:

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.

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 EXPRESS PROVISION 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. 9063, DATED FEBRUARY 16, 1942, CONTAINS PROVISIONS AS FOLLOWS:

1. THE UNITED STATES CIVIL SERVICE COMMISSION IS AUTHORIZED TO ADOPT AND PRESCRIBE SUCH SPECIAL PROCEDURES AND REGULATIONS AS IT MAY DETERMINE TO BE NECESSARY IN CONNECTION WITH THE RECRUITMENT, PLACEMENT, AND CHANGES IN STATUS OF PERSONNEL FOR ALL DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER FEDERAL AGENCIES, EXCEPT POSITIONS IN THE FIELD SERVICE OF THE POSTAL ESTABLISHMENT. THE PROCEDURES AND REGULATIONS THUS ADOPTED AND PRESCRIBED SHALL BE BINDING WITH RESPECT TO ALL POSITIONS AFFECTED THEREBY WHICH ARE SUBJECT TO THE PROVISIONS OF THE CIVIL SERVICE ACT AND RULES.

2. PERSONS APPOINTED SOLELY BY REASON OF ANY SPECIAL PROCEDURES ADOPTED UNDER AUTHORITY OF THIS ORDER TO POSITIONS SUBJECT TO THE PROVISIONS OF THE CIVIL SERVICE ACT AND RULES SHALL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL-SERVICE STATUS BUT, IN THE DISCRETION OF THE CIVIL SERVICE COMMISSION, MAY BE RETAINED FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER.

UNITED STATES CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 323 HAS BEEN PROMULGATED TO PROVIDE THE REGULATIONS AND PROCEDURES FOR EFFECTING WAR SERVICE APPOINTMENTS UNDER EXECUTIVE ORDER NO. 9063, SUPRA. REGULATION V, SECTION 2, OF THE REGULATIONS APPENDED TO SAID CIRCULAR, PROVIDES AS FOLLOWS:

SECTION 2. STATUS OF APPOINTEES.--- PERSONS APPOINTED UNDER THESE REGULATIONS WILL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL SERVICE STATUS. UNLESS OTHERWISE SPECIFICALLY LIMITED SUCH APPOINTMENTS MAY BE FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER.

PARAGRAPH E OF THE CIRCULAR, UNDER THE HEADING " NATURE OF APPOINTMENTS UNDER THE REGULATIONS," PROVIDES IN PERTINENT PART AS FOLLOWS:

(1) ON AND AFTER MARCH 16, 1942, ALL APPOINTMENTS UNDER THESE REGULATIONS WILL BE MADE UNDER THE AUTHORITY OF EXECUTIVE ORDER NO. 9063 AND WILL BE TERMED " WAR SERVICE APPOINTMENTS.' APPOINTEES WILL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL-SERVICE STATUS. ( REGULATION V, APPOINTMENTS, SECTION 1.)

(2) UNLESS OTHERWISE SPECIFICALLY LIMITED SUCH APPOINTMENTS MAY BE FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER. THOSE APPOINTMENTS WHICH ARE FOR PERIODS SPECIFICALLY LIMITED TO ONE YEAR OR LESS WILL BE CONSIDERED TEMPORARY. APPOINTMENTS WHICH ARE FOR A LONGER DURATION THAN ONE YEAR WILL UNLESS OTHERWISE SPECIFICALLY LIMITED BE DESIGNATED AS INDEFINITE. ( REGULATION V, APPOINTMENTS, SECTION 2.)

PARAGRAPH I OF THE SAME REGULATIONS, UNDER THE HEADING " TRANSITION PROCEDURES," READS AS FOLLOWS:

(1) EFFECTIVE AS OF MARCH 16, 1942, ALL PERSONS SERVING UNDER SECTION 2, RULE VIII WILL BE REGARDED AS SERVING UNDER EXECUTIVE ORDER 9063; CHANGE OF RECORDS IN INDIVIDUAL CASES TO SHOW AUTHORITY UNDER EXECUTIVE ORDER NO. 9063 INSTEAD OF SECTION 2, RULE VIII, NEED NOT BE MADE. ON AND AFTER MARCH 16, 1942, NO PERSONS NOW SERVING UNDER SECTION 2, RULE VIII, WILL BE GIVEN PROBATIONAL APPOINTMENTS, AND CONVERSIONS UNDER SECTION 5, RULE VIII WILL NOT THEREAFTER BE EFFECTED.

IT APPEARS, THEREFORE, THAT EXISTING REGULATIONS OF THE CIVIL SERVICE COMMISSION, ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, EFFECTIVE MARCH 16, 1942, HAVE CHANGED THE STATUS OF POSITIONS THE APPOINTMENTS TO WHICH PREVIOUSLY WERE MADE UNDER SECTION 2, RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS, CONSIDERED IN THE DECISION OF DECEMBER 10, 1941, SUPRA, FROM ,TEMPORARY" TO "PERMANENT" WITHIN THE MEANING OF THE DEFINITION OF THE LATTER TERM AS CONTAINED IN SECTION 1 (A) OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, EXCEPT SUCH POSITIONS AS ARE ,SPECIFICALLY LIMITED TO ONE YEAR OR LESS," WHICH ARE DESIGNATED AS "TEMPORARY.' (SEE PAR. E (2) OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 323, SUPRA.)

ON THE BASIS OF THESE CHANGES IN THE CIVIL SERVICE REGULATIONS WHICH HAVE THE FORCE AND EFFECT OF LAW, THE QUESTION CONTAINED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE. THE FIRST OF SUCH AUTOMATIC PROMOTIONS WILL BE PAYABLE TO SUCH EMPLOYEES EFFECTIVE ON AND AFTER APRIL 1, 1942, PROVIDED THE EMPLOYEES ARE OTHERWISE QUALIFIED TO RECEIVE SUCH PROMOTIONS UNDER THE TERMS AND CONDITIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613 AND THE PRESIDENT'S REGULATIONS THEREUNDER.