B-86315, SEPTEMBER 7, 1949, 29 COMP. GEN. 116

B-86315, SEPTEMBER 7, 1949, 29 COMP. GEN. 116

POSTAL SERVICE - PROMOTION FROM SUBSTITUTE TO REGULAR DURING WAR TRANSFER IT IS THE VIEW OF THIS OFFICE THAT THE POSTMASTER GENERAL HAD NO AUTHORITY UNDER 39 U.S.C. 609 TO PROMOTE A SUBSTITUTE RAILWAY POSTAL CLERK TO A REGULAR POSITION WHERE THE EMPLOYEE WAS ABSENT ON A WAR TRANSFER WHEN HIS NAME WAS REACHED FOR APPOINTMENT TO A REGULAR POSITION AS SENIOR SUBSTITUTE, AND THAT, UPON REINSTATEMENT FOLLOWING WAR TRANSFER, SUCH EMPLOYEE HAD NO REEMPLOYMENT RIGHTS TO A REGULAR POSITION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 7, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1949, RELATIVE TO AN APPEAL FROM A SUBSTITUTE CLERK OF THE RAILWAY MAIL SERVICE OF THE POST OFFICE DEPARTMENT, WHO ALLEGES THAT, UPON HIS REEMPLOYMENT IN THE RAILWAY MAIL SERVICE ON NOVEMBER 17, 1948, FOLLOWING COMPLETION OF A WAR TRANSFER WITH THE AIR TECHNICAL COMMAND, HE WAS NOT GIVEN THE REEMPLOYMENT RIGHTS AND BENEFITS TO WHICH HE WAS ENTITLED. YOU REQUEST A DECISION AS TO WHETHER THIS SUBSTITUTE CLERK WHO WAS TRANSFERRED ON JANUARY 15, 1945, WITH EMPLOYMENT RIGHTS UNDER WAR SERVICE REGULATION IX, IS ENTITLED TO RETROACTIVE RESTORATION IN THE RAILWAY MAIL SERVICE TO THE POSITION OF REGULAR CLERK INSTEAD OF TO THE POSITION OF SUBSTITUTE CLERK.

EXCEPT WITH RESPECT TO A PROPOSED EXPENDITURE OF PUBLIC FUNDS, THE QUESTION HERE PRESENTED CONCERNING THE ELIGIBILITY OF A SUBSTITUTE POSTAL EMPLOYEE FOR APPOINTMENT TO A REGULAR POSITION IS NOT A MATTER PROPERLY FOR DECISION BY THE COMPTROLLER GENERAL, BUT PRIMARILY IS FOR CONSIDERATION BY THE POSTMASTER GENERAL AND THE CIVIL SERVICE COMMISSION. 18 COMP. GEN. 217; 20 ID. 538; 21 ID. 742; 26 OP. ATTY. GEN. 260. THE QUESTION PRESENTED BY YOU DOES NOT CONCERN A PROPOSED EXPENDITURE OF PUBLIC FUNDS BY YOUR AGENCY. HENCE, WHILE NO AUTHORITATIVE DECISION MAY BE RENDERED UPON THE MATTER HERE PRESENTED, I AM PLEASED TO EXPRESS, IN RESPONSE TO YOUR LETTER, MY VIEWS REGARDING THE MATTER.

FOR THE PURPOSES OF THIS DISCUSSION, IT WILL BE ASSUMED THAT THE EMPLOYEE WHO WAS REEMPLOYED ON NOVEMBER 17, 1948, APPLIED FOR REEMPLOYMENT PRIOR TO THE EXPIRATION OF HIS REEMPLOYMENT RIGHTS ON OCTOBER 22, 1948, UNDER EXECUTIVE ORDER 9952, AS AMENDED BY EXECUTIVE ORDER 9994, SEPTEMBER 1, 1948.

WAR SERVICE REGULATION IX PROVIDES, IN SECTION 5 (A) (2), THAT A WAR TRANSFER EMPLOYEE SHALL BE REINSTATED "IN HIS FORMER POSITION, OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IN SUCH MANNER, TO THE EXTENT CONSISTENT WITH LAW, THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED, PROVIDED THAT SUCH A POSITION THEN EXISTS.' SEE, ALSO, WAR MANPOWER DIRECTIVE NO. X, PARAGRAPH IV. SECTION 5 (E) OF SAID WAR SERVICE REGULATION IX PROVIDES THAT SUCH AN EMPLOYEE SHALL BE GIVEN THE SAME CONSIDERATION FOR PROMOTION WITHIN HIS ORIGINAL AGENCY AS HE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED, THAT THAT HE MAY BE SELECTED FOR SUCH A PROMOTION. SECTION 4 OF CIVIL SERVICE RULE XI PROVIDES THAT SUBSTITUTES SHALL BE PROMOTED TO THE FIRST VACANCIES OCCURRING IN REGULAR POSITIONS IN THE ORDER OF THEIR ORIGINAL APPOINTMENT, UNLESS SUCH VACANCIES ARE FILLED BY PROMOTION, TRANSFER, OR REINSTATEMENT.

THE VIEW OF THE CIVIL SERVICE COMMISSION, AS EXPRESSED IN SAID LETTER OF MAY 13, IS TO THE EFFECT THAT SECTION 5 (E) OF WAR SERVICE REGULATION IX REQUIRED THE POST OFFICE DEPARTMENT TO CONSIDER AN EMPLOYEE WHO WAS ON A WAR SERVICE TRANSFER WHEN HE BECAME A SENIOR SUBSTITUTE FOR ANY VACANCIES ON THE ROLL OF REGULARS WHICH THE DEPARTMENT HAD ELECTED TO FILL BY PROMOTION OF A SUBSTITUTE; THAT UNDER SECTION 4 OF CIVIL SERVICE RULE XI HIS SELECTION FOR PROMOTION WAS REQUIRED IF HE HAD REACHED THE TOP OF THE SUBSTITUTE ROLL ON THE BASIS OF SENIORITY; AND THAT UNDER THE PROVISIONS OF WAR SERVICE REGULATION IX HIS REEMPLOYMENT RIGHTS WERE APPLICABLE TO THE POSITION OF A REGULAR CLERK. HOWEVER, IT IS STATED IN SAID LETTER OF MAY 13 THAT THE POST OFFICE DEPARTMENT FEELS THAT REEMPLOYMENT OF THE EMPLOYEE IN A REGULAR POSITION WOULD BE PREVENTED BY THE DECISION OF THIS OFFICE DATED APRIL 30, 1947, B-65127, 26 COMP. GEN. 839.

THE SITUATIONS DEALT WITH IN THE DECISION OF APRIL 30, 1947, INVOLVED ATTEMPTS BY POSTMASTERS TO MAKE PROMOTIONS OF SUBSTITUTE CLERKS TO REGULAR POSITIONS, EFFECTIVE, IN ONE CASE, UPON RETURN OF THE SUBSTITUTE FROM THE MILITARY SERVICE PRIOR TO THE APPROVAL OF THE PROMOTION BY THE PROPER OFFICIAL, AND, IN ANOTHER CASE, TO MAKE THE PROMOTION EFFECTIVE AS OF THE DATE THE SUBSTITUTES WOULD HAVE BEEN PROMOTED ON THE BASIS OF SENIORITY HAD THEY NOT ENTERED UPON MILITARY SERVICE. IT WAS STATED IN THE DECISION THAT THERE EXISTS NO AUTHORITY OF LAW TO GRANT SUCH AN ADMINISTRATIVE PROMOTION WHILE ON A SO-CALLED MILITARY FURLOUGH DURING WHICH THE EMPLOYEE IS NOT IN HIS CIVILIAN POSITION; AND IT WAS HELD THAT, SO FAR AS REEMPLOYMENT RIGHTS UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 890, AS AMENDED, WERE CONCERNED, THERE WAS NO AUTHORITY UNDER WHICH THE EMPLOYEES COULD BE PROMOTED RETROACTIVELY FROM SUBSTITUTE POSITIONS TO REGULAR POSITIONS ON THE BASIS THAT, BECAUSE OF SENIORITY, THEY WOULD HAVE BEEN PROMOTED HAD THEY NOT ENTERED THE MILITARY SERVICE. THE DECISION DID NOT DISCUSS OR DECIDE ANY QUESTION INVOLVING THE PROMOTIONS OF SUBSTITUTE EMPLOYEES TO REGULAR POSITIONS WHILE ON WAR SERVICE TRANSFER. HOWEVER, IT APPEARS THAT THE PRINCIPLES UPON WHICH THAT DECISION WAS BASED EQUALLY ARE FOR APPLICATION TO THE REEMPLOYMENT RIGHTS OF A SUBSTITUTE RAILWAY POSTAL CLERK UPON RESTORATION AFTER A WAR SERVICE TRANSFER.

THE AUTHORITY TO APPOINT A RAILWAY POSTAL CLERK, SUCH AS BY PROMOTION OF AN EMPLOYEE FROM SUBSTITUTE TO REGULAR, IS VESTED IN THE POSTMASTER GENERAL BY THE PROVISIONS OF 39 U.S.C. 609. THE POSTAL LAWS AND REGULATIONS OF 1948, PART 137.14 (D) (1), PROVIDE THAT:

ORIGINAL APPOINTMENTS TO THE POSITION OF RAILWAY POSTAL CLERK SHALL BE MADE BY THE POSTMASTER GENERAL UNDER THE CIVIL-SERVICE RULES AND REGULATIONS. (CF. POSTAL LAWS AND REGULATIONS OF 1940, SECTION 2011).

ALSO, PART 137.14 (E) (1) PROVIDES THAT:

ANY VACANCY IN THE REGULAR FORCE OF CLERKS SHALL BE FILLED BY THE APPOINTMENT OF THE FIRST SUBSTITUTE IN THE STATE ENTITLED BY PROPER APPORTIONMENT TO THE APPOINTMENT.

THE PROVISIONS OF 39 U.S.C. 609, SUPRA, DEFINITELY PLACE THE POWER TO APPOINT RAILWAY POSTAL CLERKS IN THE POSTMASTER GENERAL AND NOT IN ANY SUBORDINATE. BY THE REGULATIONS QUOTED ABOVE, THE POSTMASTER GENERAL HAS SUBJECTED HIS APPOINTING POWER TO THE CIVIL-SERVICE RULES AND REGULATIONS, WHICH, OF COURSE, INCLUDE SECTION 4 OF CIVIL SERVICE RULE XI RELATING TO THE PROMOTION OF THE SENIOR SUBSTITUTE. WHILE THE REGULATIONS, ABOVE, REQUIRE AND DIRECT THE APPOINTMENT OR PROMOTION OF THE SENIOR SUBSTITUTE UPON THE HAPPENING OF THE CONTINGENCY THAT A REGULAR VACANCY IS TO BE FILLED BY THE PROMOTION OF A SUBSTITUTE, SUCH REQUIREMENT PRESCRIBES ONLY THE MODE IN WHICH A REGULAR VACANCY IS TO BE FILLED. THE HAPPENING OF SUCH CONTINGENCY DOES NOT, IN AND OF ITSELF, OPERATE TO VEST IN THE SENIOR SUBSTITUTE THE BENEFITS OF A REGULAR POSITION UNTIL SUCH TIME AS THERE HAS BEEN AN EXERCISE OF THE APPOINTING POWER BY THE POSTMASTER GENERAL TO PROMOTE THE EMPLOYEE TO A REGULAR POSITION. SEE 3 COMP. GEN. 844; 4 ID. 299; ID. 303; 3 OP. OF ASST. ATTYS. GEN. FOR POST OFFICE DEPARTMENT 702. COMPARE 25 COMP. GEN. 512; 13 OP. ATTY. GEN. 13; 25 ID. 591; 29 ID. 254. IN THE FINAL ANALYSIS, SUCH A PROMOTION IS AS MUCH WITHIN THE POSTMASTER GENERAL'S POWER OF APPOINTMENT AS AN ORIGINAL APPOINTMENT TO THE RAILWAY MAIL SERVICE AND IS SUBJECT TO THE SAME CONSIDERATIONS. WHILE ACCEPTANCE OF A PROMOTION TO A REGULAR POSITION MAY NOT BE NECESSARY, YET IT CLEARLY IS NECESSARY THAT THE SUBSTITUTE BE CAPABLE OF ASSENT. IN THE PRESENT CASE THE SENIOR SUBSTITUTE EMPLOYEE WHO PRESUMABLY WAS ABSENT ON A WAR TRANSFER WHEN A REGULAR VACANCY WAS TO BE FILLED BY PROMOTION FROM THE SUBSTITUTE ROLL WAS NOT CAPABLE OF ASSENT. WHILE THE SAID SECTION 5 (E) OF WAR SERVICE REGULATION IX CONTEMPLATES THE PROMOTION OF AN EMPLOYEE WHILE ABSENT ON A WAR TRANSFER, IT IS NOT BELIEVED THAT SUCH REGULATION PROPERLY MAY BE VIEWED AS HAVING ANY EFFECT UPON A PROMOTION SUCH AS HERE INVOLVED, WHICH IS MORE IN THE NATURE OF AN ORIGINAL APPOINTMENT. UNDER SUCH CIRCUMSTANCES, THE POSTMASTER GENERAL WOULD HAVE HAD NO AUTHORITY TO PROMOTE, IN ABSENTIA, THIS SUBSTITUTE EMPLOYEE TO A REGULAR POSITION WHEN HE WAS REACHED FOR AN APPOINTMENT AS A SENIOR SUBSTITUTE WHILE HE WAS ON A WAR TRANSFER. UNDER THE GENERAL RULE THAT THE EFFECTIVE DATE OF AN APPOINTMENT OR AN ADMINISTRATIVE PROMOTION IS THE ACTUAL DATE OF APPROVAL BY THE PARTY AUTHORIZED TO MAKE THE APPOINTMENT OR PROMOTION (3 COMP. GEN. 844; 4 ID. 299; 17 ID. 323; 26 ID. 839), THE EMPLOYEE HERE INVOLVED MAY BE CONSIDERED, FOR COMPENSATION PURPOSES, AS PROMOTED FROM SUBSTITUTE TO REGULAR ONLY WHEN THE POSTMASTER GENERAL ACTUALLY HAS APPROVED HIS PROMOTION, PROSPECTIVELY EFFECTIVE.

ACCORDINGLY, IT IS MY VIEW THAT THE SUBSTITUTE RAILWAY POSTAL CLERK HERE INVOLVED, WHO PRESUMABLY WAS ABSENT ON A WAR TRANSFER WHEN HIS NAME WAS REACHED ON THE SUBSTITUTE ROLL FOR APPOINTMENT TO A REGULAR POSITION, HAD NO REEMPLOYMENT RIGHTS TO A POSITION OF REGULAR CLERK UPON REINSTATEMENT FOLLOWING A WAR SERVICE TRANSFER.