B-84497, MAY 2, 1949, 28 COMP. GEN. 628

B-84497: May 2, 1949

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WHO SUBSEQUENTLY WERE GIVEN NEW APPOINTMENTS WHICH CLEARLY INDICATED THEM TO BE OTHER THAN TEMPORARY. ARE NOT ENTITLED TO RETROACTIVE WITHIN-GRADE ADVANCEMENTS FOR THE PERIOD DURING WHICH THEIR APPOINTMENTS WERE OF TEMPORARY DURATION. " AND WHO HAVE SERVED CONTINUOUSLY FOR VARIOUS PERIODS OF TIME IN THEIR POSITIONS AS ATTORNEYS WITHOUT PERIODIC WITHIN GRADE SALARY ADVANCEMENTS. ARE ENTITLED TO RETROACTIVE WITHIN-GRADE SALARY ADVANCEMENTS FOR THE PERIODS DURING WHICH THEIR APPOINTMENTS WERE DESIGNATED AS TEMPORARY. TOGETHER WITH APPOINTMENTS OF OTHER ATTORNEYS OF THE WAR ASSETS ADMINISTRATION WHO DID NOT HAVE COMPETITIVE CIVIL SERVICE STATUS AND WHO WERE SERVING UNDER TEMPORARY INDEFINITE APPOINTMENTS UNDER SECTION 2.114 (A) OF THE CIVIL SERVICE REGULATIONS.

B-84497, MAY 2, 1949, 28 COMP. GEN. 628

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENTS - ELIGIBILITY UNDER TEMPORARY APPOINTMENTS TO EXCEPTED POSITIONS IN VIEW OF THE FACT THAT THE TERM "PERMANENT POSITIONS" AS DEFINED BY THE CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO THE PERIOD WITHIN GRADE ADVANCEMENT STATUTE SPECIFICALLY EXCLUDES EXCEPTED POSITIONS FILED BY APPOINTMENTS DESIGNATED AS TEMPORARY, ATTORNEYS WHO SERVED CONTINUOUSLY IN EXCEPTED POSITIONS UNDER APPOINTMENTS DESIGNATED AS OF TEMPORARY DURATION NOT TO EXCEED TWO YEARS, AND WHO SUBSEQUENTLY WERE GIVEN NEW APPOINTMENTS WHICH CLEARLY INDICATED THEM TO BE OTHER THAN TEMPORARY, ARE NOT ENTITLED TO RETROACTIVE WITHIN-GRADE ADVANCEMENTS FOR THE PERIOD DURING WHICH THEIR APPOINTMENTS WERE OF TEMPORARY DURATION.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, MAY 2, 1949:

THERE HAS BEEN CONSIDERED LETTER OF MARCH 11, 1949, REFERENCE AGC, FROM THE ASSOCIATE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, REQUESTING A DECISION WHETHER CERTAIN ATTORNEYS OF THE ADMINISTRATION EXCEED TWO YEARS," AND WHO HAVE SERVED CONTINUOUSLY FOR VARIOUS PERIODS OF TIME IN THEIR POSITIONS AS ATTORNEYS WITHOUT PERIODIC WITHIN GRADE SALARY ADVANCEMENTS, ARE ENTITLED TO RETROACTIVE WITHIN-GRADE SALARY ADVANCEMENTS FOR THE PERIODS DURING WHICH THEIR APPOINTMENTS WERE DESIGNATED AS TEMPORARY.

THE LETTER REFERS TO ONE PARTICULAR EMPLOYEE WHO RECEIVED A TEMPORARY APPOINTMENT AS AN ATTORNEY, P-5, $5,180, EFFECTIVE JUNE 17, 1946, UNDER TEMPORARY CIVIL SERVICE REGULATION VIII, SECTION 2, WHICH AUTHORIZED TEMPORARY APPOINTMENTS PENDING ESTABLISHMENT OF A CIVIL SERVICE REGISTER. ON OR ABOUT MAY 1, 1947, THE ATTORNEY'S APPOINTMENT, TOGETHER WITH APPOINTMENTS OF OTHER ATTORNEYS OF THE WAR ASSETS ADMINISTRATION WHO DID NOT HAVE COMPETITIVE CIVIL SERVICE STATUS AND WHO WERE SERVING UNDER TEMPORARY INDEFINITE APPOINTMENTS UNDER SECTION 2.114 (A) OF THE CIVIL SERVICE REGULATIONS--- WHICH SUPERSEDED TEMPORARY CIVIL SERVICE REGULATION VIII, SECTION 2--- WERE CONVERTED TO EXCEPTED APPOINTMENTS UNDER SCHEDULE A (1) (IV) OF THE CIVIL SERVICE RULES AT THE SAME GRADE AND PAY, WITH THE NOTATION ON THEIR APPOINTMENTS THAT " THIS APPOINTMENT IS TEMPORARY DURATION NOT TO EXCEED TWO YEARS.' IT IS STATED IN SAID LETTER THAT ALL ATTORNEY APPOINTMENTS AFTER MAY 1947 WHERE THE EMPLOYEES DID NOT HAVE COMPETITIVE CIVIL SERVICE STATUS WERE MADE WITH THE SAME LIMITATION. THE PARTICULAR EMPLOYEE REFERRED TO ABOVE WAS TRANSFERRED AND REASSIGNED ON NOVEMBER 30, 1947, FROM ATTORNEY TO ATTORNEY ADVISER AT THE SAME GRADE AND PAY, WITH THE NOTATION ON HIS APPOINTMENT THAT " EMPLOYEE SERVING SCHEDULE A-1-IV APPOINTMENT WHICH EXPIRES APRIL 30, 1949, C.O.B.' ON OR ABOUT JANUARY 5, 1949, ADMINISTRATIVE ACTION WAS TAKEN TO GIVE SUCH ATTORNEYS NEW APPOINTMENTS CLEARLY INDICATING THEM NOT TO BE TEMPORARY, THEREBY MAKING THEM MORE CLEARLY ELIGIBLE FOR PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS.

PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, AND THE REGULATIONS ISSUED THEREUNDER. BOTH THE ACT AND THE REGULATIONS LIMIT THE APPLICATION OF SUCH BENEFITS TO EMPLOYEES COMPENSATED ON A PER ANNUM BASIS AND OCCUPYING "PERMANENT POSITIONS" WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED. THE TERM " PERMANENT POSITIONS," FOR PERIODIC WITHIN-GRADE SALARY ADVANCEMENT PURPOSES, IS DEFINED BY SECTION 25.221 OF THE CIVIL SERVICE REGULATIONS AS FOLLOWS:

* * * "PERMANENT POSITIONS" MEANS POSITIONS OTHER THAN THOSE DESIGNATED AS TEMPORARY BY LAW, OTHER THAN THOSE ESTABLISHED FOR DEFINITE PERIODS OF ONE YEAR OR LESS, AND OTHER THAN THOSE TO WHICH TEMPORARY APPOINTMENTS ARE MADE UNDER CIVIL SERVICE RULE II AND THE COMMISSION'S REGULATIONS THEREUNDER (SEC. 2.114 OF THIS CHAPTER). EXCEPTED POSITIONS FILLED BY APPOINTMENTS DESIGNATED BY THE APPOINTING AUTHORITY AS TEMPORARY (ALL VARIATIONS OF TEMPORARY, INCLUDING THOSE STATED ABOVE, EXCEPTING ONLY WAR SERVICE INDEFINITE) ARE NOT PERMANENT POSITIONS FOR THE PURPOSE OF THIS SUBPART. POSITIONS TO WHICH APPOINTMENTS WERE MADE UNDER THE WAR SERVICE REGULATIONS FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER ARE PERMANENT POSITIONS WITHIN THE SCOPE OF THIS DEFINITION. POSITIONS IN WHICH EMPLOYEES ARE SERVING DEFINITE PROBATIONARY OR TRAIL PERIODS UNDER CIVIL-SERVICE RULES, OR UNDER REGULATIONS ISSUED BY THE COMMISSION, SHALL NOT, FOR THAT REASON ALONE, BE REGARDED AS BEING OTHER THAN PERMANENT POSITIONS. POSITIONS FILED BY TEMPORARY APPOINTMENT UNDER THE TEMPORARY CIVIL SERVICE REGULATIONS ARE TEMPORARY FOR THE PURPOSE OF THIS SUBPART. ( ITALICS SUPPLIED.)

THE DOUBT IN THE MATTER ARISES BY REASON OF THE FACT THAT THE APPOINTMENTS OF THE ATTORNEYS TO EXCEPTED POSITIONS WERE DESIGNATED AS TEMPORARY AND THAT SUCH DESIGNATION BY THE APPOINTING AUTHORITY WOULD APPEAR TO PRECLUDE THE GRANTING OF ANY PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS TO THE ATTORNEYS UNDER THE ITALICIZED PORTION OF THE REGULATIONS QUOTED ABOVE. IT IS URGED IN SAID LETTER OF MARCH 11 THAT THE WORD "TEMPORARY," AS USED IN SECTION 25.221 ABOVE, SHOULD BE APPLIED ONLY TO APPOINTMENTS FOR ONE YEAR OR LESS AS IN THE CASE OF THE ANNUAL AND SICK LEAVE REGULATIONS; THAT THE USE OF THE WORD "TEMPORARY" IN THE APPOINTMENTS HERE INVOLVED WERE SUPERFLUOUS, INASMUCH AS THE APPOINTMENTS WERE MADE FOR STATED PERIODS NOT TO EXCEED TWO YEARS; AND THAT IT WAS NOT THE ADMINISTRATIVE INTENTION TO PLACE SUCH ATTORNEY POSITIONS OUTSIDE THE PERIODIC WITHIN-GRADE STATUTE BUT TO KEEP THEM WITHIN GROUP B (CF. FEDERAL PERSONNEL MANUAL R3-14 AND R3-37) FOR REDUCTION IN FORCE PURPOSES.

THE ABOVE-QUOTED DEFINITION OF THE TERM "PERMANENT POSITIONS" FOR PERIODIC WITHIN-GRADE SALARY ADVANCEMENT PURPOSES SPECIFICALLY EXCLUDES EXCEPTED POSITIONS FILLED BY APPOINTMENTS DESIGNATED BY THE APPOINTING AUTHORITY AS TEMPORARY, INCLUDING ALL VARIATIONS OF TEMPORARY, EXCEPTING ONLY WAR SERVICE INDEFINITE APPOINTMENTS. IN THE SCHEDULE A (1) (IV) UPON CONVERSION FROM TEMPORARY POSITIONS UNDER EITHER TEMPORARY REGULATION VIII, SECTION 2, OR THE SUPERSEDING SECTION 2.114 (A) OF THE CIVIL SERVICE REGULATIONS WERE DESIGNATED AS TEMPORARY EVEN THOUGH FOR A PERIOD NOT TO EXCEED TWO YEARS. ACCORDINGLY, AND REGARDLESS OF THE REASON FOR DESIGNATING THE APPOINTMENTS AS TEMPORARY, THE ATTORNEYS OCCUPYING SUCH EXCEPTED POSITIONS ARE NOT ENTITLED TO RETROACTIVE PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS FOR THE PERIOD DURING WHICH THEIR APPOINTMENTS WERE "OF TEMPORARY DURATION NOT TO EXCEED TWO YEARS" EVEN THOUGH THE OTHER REQUIREMENTS FOR SUCH ADVANCEMENTS HAD BEEN MET.