B-62914, FEBRUARY 4, 1947, 26 COMP. GEN. 561

B-62914: Feb 4, 1947

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AS FOLLOWS: I HAVE THE HONOR TO TRANSMIT HEREWITH COPY OF AN OPINION ADDRESSED BY THE SOLICITOR OF THE VETERANS ADMINISTRATION TO THE CHIEF MEDICAL DIRECTOR ON THE QUESTION AS TO THE APPLICATION OF PUBLIC 581. THERE IS ALSO TRANSMITTED COPY OF A LETTER DATED SEPTEMBER 30. WAS CLEARED WITH THE LEGAL DEPARTMENT OF THE CIVIL SERVICE COMMISSION AND REPRESENTS THE OPINION OF THE COMMISSION. INASMUCH AS WITHIN GRADE PROMOTIONS ARE BASED. AS THE LEGALITY OF SUCH PROMOTIONS IS FOR CONSIDERATION BY YOUR OFFICE I WOULD APPRECIATE YOUR DECISION ON THE QUESTION WHETHER THE EFFICIENCY RATINGS OF DOCTORS. DENTISTS AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION ARE SUBJECT TO THE PROVISION OF PUBLIC 581.

B-62914, FEBRUARY 4, 1947, 26 COMP. GEN. 561

OFFICERS AND EMPLOYEES - EFFICIENCY RATINGS - VETERANS' ADMINISTRATION DOCTORS, DENTISTS AND NURSES - APPLICABILITY OF EFFICIENCY RATING REQUIREMENTS OF ACT OF JULY 31, 1946 UNDER THE SPECIFIC PROVISIONS OF SECTION 6 (C) OF THE ACT OF JANUARY 3, 1946, AUTHORIZING THE ADMINISTRATOR OF VETERANS' AFFAIRS TO PRESCRIBE REGULATIONS GOVERNING AUTOMATIC WITHIN-GRADE PROMOTION OF CIVIL-SERVICE EXEMPT DOCTORS, DENTISTS, AND NURSES OF THE DEPARTMENT OF MEDICINE AND SURGERY, THE ADMINISTRATOR MAY ESTABLISH EFFICIENCY RATINGS FOR WITHIN- GRADE PROMOTION PURPOSES WITHOUT REGARD TO THE GENERAL PROVISIONS OF THE SUBSEQUENTLY ENACTED ACT OF JULY 31, 1946, REQUIRING APPROVAL BY THE CIVIL SERVICE COMMISSION OF EFFICIENCY RATING SYSTEMS USED FOR EMPLOYEES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, WHICH LATTER ACT DOES NOT PROVIDE, EITHER EXPRESSLY OR BY IMPLICATION, FOR THE REPEAL OF PRIOR STATUTES.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 4, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JANUARY 6, 1947, AS FOLLOWS:

I HAVE THE HONOR TO TRANSMIT HEREWITH COPY OF AN OPINION ADDRESSED BY THE SOLICITOR OF THE VETERANS ADMINISTRATION TO THE CHIEF MEDICAL DIRECTOR ON THE QUESTION AS TO THE APPLICATION OF PUBLIC 581, 79TH CONGRESS,"AN ACT TO PROVIDE FOR THE UNIFORM ADMINISTRATION OF EFFICIENCY INGS.'

THERE IS ALSO TRANSMITTED COPY OF A LETTER DATED SEPTEMBER 30, 1946, FROM THE CHIEF, EFFICIENCY RATINGS ADMINISTRATION SECTION, PERSONNEL CLASSIFICATION DIVISION OF THE CIVIL SERVICE COMMISSION, WHICH, IT HAS BEEN STATED, WAS CLEARED WITH THE LEGAL DEPARTMENT OF THE CIVIL SERVICE COMMISSION AND REPRESENTS THE OPINION OF THE COMMISSION.

INASMUCH AS WITHIN GRADE PROMOTIONS ARE BASED, IN PART, ON EFFICIENCY RATINGS, AND AS THE LEGALITY OF SUCH PROMOTIONS IS FOR CONSIDERATION BY YOUR OFFICE I WOULD APPRECIATE YOUR DECISION ON THE QUESTION WHETHER THE EFFICIENCY RATINGS OF DOCTORS, DENTISTS AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION ARE SUBJECT TO THE PROVISION OF PUBLIC 581, 79TH CONGRESS, OR WHETHER, AS IS STATED IN THE OPINION OF THE SOLICITOR, VETERANS ADMINISTRATION, SUCH RATINGS ARE SUBJECT ONLY TO REGULATIONS ISSUED UNDER PUBLIC 293, 79TH CONGRESS.

THE OPINION OF THE SOLICITOR OF THE VETERANS' ADMINISTRATION, COPY OF WHICH YOU ENCLOSED, ARRIVES AT THE CONCLUSION THAT THE ACT OF JULY 31, 1946, PUBLIC LAW 581, DOES NOT SUPERSEDE THE PROVISIONS OF PUBLIC LAW 293, APPROVED JANUARY 3, 1946, SO FAR AS CONCERNS THE RATING OF PROFESSIONAL PERSONNEL WHOSE APPOINTMENTS ARE AUTHORIZED UNDER SAID ACT. HOWEVER, WITH REFERENCE TO THAT MATTER, THE LETTER OF SEPTEMBER 30, 1946, FROM THE CHIEF, EFFICIENCY RATINGS, ADMINISTRATIVE SECTION, PERSONNEL CLASSIFICATION DIVISION, UNITED STATES CIVIL SERVICE COMMISSION, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16, 1946, FILE 5CC, REQUESTING THE CIVIL SERVICE COMMISSION'S VIEW AS TO "WHETHER THE PROVISIONS OF PUBLIC LAW 581 REQUIRE THAT EMPLOYEES OF THE VETERANS ADMINISTRATION DEPARTMENT OF MEDICINE AND SURGERY, EXEMPTED FROM CIVIL SERVICE REQUIREMENTS BY PUBLIC LAW 293, BE RATED AS TO EFFICIENCY UNDER A SYSTEM WHICH MUST BE APPROVED BY THE CIVIL SERVICE COMMISSION.'

PUBLIC LAW 581 IS A STATUTE OF GENERAL APPLICATION. IT IS NOT AN AMENDMENT TO EITHER THE CIVIL SERVICE ACT OR THE CLASSIFICATION ACT, EVEN THOUGH IT INCORPORATES BY REFERENCE THE PROVISIONS OF SECTION 9 OF THE CLASSIFICATION ACT. THEREFORE, IT IS NOT AN ACT WHICH IS INCLUDED IN THE REQUIREMENTS FROM WHICH THE VETERANS ADMINISTRATION DEPARTMENT OF MEDICINE AND SURGERY IS EXEMPTED BY PUBLIC LAW 293. THE FACT THAT THE CIVIL SERVICE COMMISSION IS DESIGNATED AS THE AGENCY TO ADMINISTER THE ACT DOES NOT CHANGE THE NATURE OF THE ACT FROM ONE OF GENERAL APPLICATION.

UNDER THE PROVISIONS OF PUBLIC LAW 581, AN AGENCY IS NOT REQUIRED TO RATE AS TO EFFICIENCY ITS EMPLOYEES WHO ARE NOT SUBJECT TO THE UNIFORM EFFICIENCY RATING SYSTEM. HOWEVER, IF AN AGENCY DESIRES TO RATE SUCH EMPLOYEES AS TO EFFICIENCY, REGARDLESS OF ANY EXEMPTION FROM THE PROVISIONS OF THE CIVIL SERVICE ACT OR THE CLASSIFICATION ACT, THE SYSTEM MUST BE APPROVED BY THE CIVIL SERVICE COMMISSION. THIS, OF COURSE, APPLIES ONLY TO A SYSTEM USED FOR RATING CIVILIAN EMPLOYEES IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT.

SECTION 6 OF THE ACT OF JANUARY 3, 1946, PUBLIC LAW 293, 59 STAT. 676, ESTABLISHING THE DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS' ADMINISTRATION, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 6 (A) APPOINTMENTS OF DOCTORS, DENTISTS, AND NURSES SHALL BE MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO CIVIL-SERVICE REQUIREMENTS.

(B) SUCH APPOINTMENTS AS DESCRIBED IN SUBSECTION (A) OF THIS SECTION SHALL BE FOR A PROBATIONARY PERIOD OF THREE YEARS AND THE RECORD OF EACH PERSON SERVING UNDER SUCH APPOINTMENT IN THE MEDICAL, DENTAL, AND NURSING SERVICES SHALL BE REVIEWED FROM TIME TO TIME BY A BOARD, APPOINTED IN ACCORDANCE WITH REGULATIONS OF THE ADMINISTRATOR, AND IF SAID BOARD SHALL FIND HIM NOT FULLY QUALIFIED AND SATISFACTORY HE SHALL BE SEPARATED FROM THE SERVICE.

(C) PROMOTIONS OF DOCTORS, DENTISTS, AND NURSES SHALL BE MADE ONLY AFTER EXAMINATION GIVEN IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR. AUTOMATIC PROMOTIONS WITHIN GRADE MAY BE MADE IN INCREMENTS OF THE MINIMUM PAY OF THE GRADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR.

SECTION 7 OF THE SAME ACT, 59 STAT. 677, PRESCRIBES THE NUMBER OF SALARY GRADES FOR THE MEDICAL, DENTAL, AND NURSING SERVICES, AS WELL AS THE RANGE OF SALARIES FOR THE RESPECTIVE GRADES.

THE ACT OF JULY 31, 1946, PUBLIC LAW 581, 60 STAT. 751, 752, PROVIDES:

THAT NO EMPLOYEE IN ANY CIVILIAN POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT OF THE UNITED STATES, OTHER THAN AN EMPLOYEE IN OR UNDER THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT OR ANY EMPLOYEE IN OR UNDER THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT OR ANY EMPLOYEE OF THE TENNESSEE VALLEY AUTHORITY, SHALL BE RATED AS TO EFFICIENCY EXCEPT UNDER A SYSTEM OF EFFICIENCY RATINGS APPROVED BY THE CIVIL SERVICE COMMISSION, AND THAT THE PROVISIONS OF SECTION 9 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR AS MAY BE HEREAFTER AMENDED, SHALL APPLY TO ALL EFFICIENCY RATINGS UNDER RATING SYSTEMS APPROVED BY THE CIVIL SERVICE COMMISSION.

THE CIVIL SERVICE COMMISSION IS HEREBY AUTHORIZED TO MAKE AND PUBLISH RULES AND REGULATIONS FOR THE ADMINISTRATION OF THE PROVISIONS OF THIS ACT.

SEC. 2. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE UPON ENACTMENT, EXCEPT THAT, WITH RESPECT TO EMPLOYEES IN THE FIELD SERVICES WHOSE POSITIONS ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, SUCH OF THE PROVISIONS OF SECTION 9 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AS REQUIRE THE CIVIL SERVICE COMMISSION TO APPROVE REDUCTIONS IN COMPENSATION AND DISMISSALS FOR INEFFICIENCY, OR CONFER THE RIGHT TO A HEARING AND REVIEW OF EFFICIENCY RATINGS BY BOARDS OF REVIEW, SHALL NOT BECOME EFFECTIVE UNTIL SUCH BOARDS OF REVIEW IN THE FIELD SERVICES ARE ESTABLISHED AS PROVIDED IN SECTION 7 OF THE ACT OF NOVEMBER 26, 1940 (54 STAT. 1215), UNDER REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION, WITH THE APPROVAL OF THE PRESIDENT.

IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE, UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT WITH THE LATER GENERAL STATUTE THAT ITS REPEAL MUST, OF NECESSITY, BE IMPLIED. EX PARTE CROW DOG, 109 U.S. 556, 570; RODGERS V. UNITED STATES, 185 U.S. 83; UNITED STATES V. NIX, 189 U.S. 199; WASHINGTON V. MILLER, 235 U.S. 422; UNITED STATES V. JACKSON, 302 U.S. 628, 631; WEST INDIA OIL COMPANY V. DOMENECH, 311 U.S. 20, 29; HOME OWNERS' LOAN CORPORATION V. CREED, 108 F.2ND 153, 155. SEE, PARTICULARLY, BALTIMORE NATIONAL BANK V. TAX COMMISSION, 297 U.S. 209, 215, IN WHICH THE SUPREME COURT SAID:

* * * AN EARLIER ACT, SPECIFIC IN ITS COVERAGE, WILL BE READ AS AN EXCEPTION TO A LATER ONE DIRECTED TO INVESTMENTS GENERALLY. "IT IS A WELL -SETTLED PRINCIPLE OF CONSTRUCTION THAT SPECIFIC TERMS COVERING THE GIVEN SUBJECT MATTER WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE PROVE CONTROLLING.' KEPNER V. UNITED STATES, 195 U.S. 100, 125; CF. GINSBERG AND SONS V. POPKIN, 285 U.S. 204, 208; IN RE EAST RIVER CO., 266 U.S. 355, 367; WASHINGTON V. MILLER, 235 U.S. 422, 428; ROSENCRANS V. UNITED STATES, 165 U.S. 257, 262; RED ROCK V. HENRY, 106 U.S. 596, 603.

SEE, ALSO, 19 COMP. GEN. 492; 24 ID. 544.

PUBLIC LAW 581, WHICH IS OF A GENERAL NATURE, CONTAINS NO PROVISION FOR REPEAL OF PRIOR STATUTES, AND NEITHER DOES ANY IMPLICATION OF SUCH REPEAL APPEAR THEREIN; ACCORDINGLY, IT MUST BE CONCLUDED THAT IT DOES NOT AFFECT THE PROVISIONS OF THE PRIOR SPECIFIC ACT OF JANUARY 3, 1946, PUBLIC LAW 293, ESTABLISHING THE DEPARTMENT OF MEDICINE AND SURGERY, AND CONFERRING UPON THE ADMINISTRATOR AUTHORITY TO PRESCRIBE REGULATIONS GOVERNING WITHIN -GRADE PROMOTIONS.

ACCORDINGLY, IT IS MY VIEW THAT THE ADMINISTRATOR OF VETERANS' AFFAIRS HAS JURISDICTION TO ESTABLISH EFFICIENCY RATINGS FOR THE PURPOSE OF PROMOTIONS WITHIN THE RESPECTIVE GRADES WITHOUT REGARD TO THE ACT OF JULY 31, 1946, PUBLIC LAW 581, SUPRA, AND WITHOUT THE NECESSITY OF SUBMITTING THE EFFICIENCY SYSTEM OF RATINGS ADOPTED BY YOUR ADMINISTRATION UNDER THE ACT OF JANUARY 3, 1946, TO THE CIVIL SERVICE COMMISSION FOR APPROVAL.