B-98188, OCTOBER 4, 1950, 30 COMP. GEN. 141

B-98188: Oct 4, 1950

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IS LIMITED TO REINSTATEMENTS OF PERSONS SEPARATED BY REDUCTION IN FORCE AND. THERE IS PERCEIVED NO RESTRICTION IN THE SUPPLEMENTAL APPROPRIATION ACT. PROVIDED SUCH PROMOTION IS TEMPORARY AS REQUIRED BY SECTION 1302 (A) OF THE ACT. WHO IS REQUIRED UNDER SECTION 1302 (B) OF THE SUPPLEMENTAL APPROPRIATION ACT. 1950: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20. TRANSFERRED OR PROMOTED THAT THE CLASSIFICATION GRADE OF THE POSITION IS SUBJECT TO POST-AUDIT AND CORRECTION BY THE APPROPRIATE DEPARTMENTAL OR AGENCY PERSONNEL OFFICE OR THE CIVIL SERVICE COMMISSION. (C) THE DEPARTMENT OF DEFENSE IS AUTHORIZED TO CALL ON OTHER DEPARTMENTS OR AGENCIES FOR SUCH ADDITIONAL PERSONNEL AS IT MAY REQUIRE WITHIN THE LIMITS OF ITS FUNDS.

B-98188, OCTOBER 4, 1950, 30 COMP. GEN. 141

OFFICERS AND EMPLOYEES - REINSTATEMENTS - EFFECT OF SUPPLEMENTAL APPROPRIATION ACT, 1951 THE PROHIBITION IN SECTION 1302 (A) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, UPON AN EMPLOYEE IN THE FEDERAL CIVIL SERVICE PROMOTED, TRANSFERRED, OR APPOINTED TO A POSITION OF HIGHER GRADE BEING ELIGIBLE, IN THE EVENT OF SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE, FOR REINSTATEMENT AT A GRADE ABOVE THE GRADE HELD BY SUCH EMPLOYEE ON SEPTEMBER 1, 1950, IS LIMITED TO REINSTATEMENTS OF PERSONS SEPARATED BY REDUCTION IN FORCE AND, THEREFORE, ALL OTHER REINSTATEMENTS MAY BE MADE IN ANY GRADE FOR WHICH THE EMPLOYEE MEETS THE QUALIFICATION REQUIREMENTS OF THE CIVIL SERVICE COMMISSION. THERE IS PERCEIVED NO RESTRICTION IN THE SUPPLEMENTAL APPROPRIATION ACT, 1951, UPON AN EMPLOYEE SEPARATED FROM THE SERVICE THROUGH REDUCTION IN FORCE WHO HAS BEEN REINSTATED IN A POSITION NOT ABOVE THE GRADE HELD BY HIM ON SEPTEMBER 1, 1950, BEING PROMOTED TO A HIGHER GRADE WITHIN A REASONABLE TIME, PROVIDED SUCH PROMOTION IS TEMPORARY AS REQUIRED BY SECTION 1302 (A) OF THE ACT, AND THE CIVIL SERVICE COMMISSION MAY PROVIDE BY REGULATIONS FOR THE PROMOTION OF SUCH AN EMPLOYEE AFTER A REASONABLE PERIOD OF TIME IN THE GRADE IN WHICH REINSTATED. AN EMPLOYEE SEPARATED FROM THE SERVICE THROUGH REDUCTION IN FORCE AFTER SEPTEMBER 1, 1950, WHO IS REQUIRED UNDER SECTION 1302 (B) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, TO BE CERTIFIED AS ELIGIBLE FOR APPOINTMENT TO A POSITION IN THE DEFENSE PROGRAM MAY BE CERTIFIED FOR SUCH AN APPOINTMENT AT NOT TO EXCEED THE GRADE AND SALARY LAST HELD IN THE TERMINATING AGENCY, EVEN THOUGH THE EMPLOYEE HAS BEEN PROMOTED OR DEMOTED AFTER SEPTEMBER 1, 1950. THE PROVISIONS OF SECTION 1302 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, BEING APPLICABLE ONLY TO THE PERIOD AFTER SEPTEMBER 1, 1950, AND DURING THE FISCAL YEAR 1951, WOULD NOT PRECLUDE AN EMPLOYEE SEPARATED BY REDUCTION IN FORCE PRIOR TO SEPTEMBER 1, 1950, FROM BEING REINSTATED IN A GRADE HIGHER THAN THAT LAST HELD IN THE TERMINATING AGENCY.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 4, 1950:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1950, REQUESTING A DECISION UPON VARIOUS QUESTIONS CONCERNING THE ISSUANCE OF REGULATIONS BY THE COMMISSION UNDER SECTION 1302 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, PUBLIC LAW 843, APPROVED SEPTEMBER 27, 1950, 64 STAT. 1066. SAID SECTION 1302 READS AS FOLLOWS:

AFTER SEPTEMBER 1, 1950, AND DURING THE FISCAL YEAR 1951:

(A) IN MAKING APPOINTMENTS IN THE GOVERNMENT SERVICE THE CIVIL SERVICE COMMISSION SHALL MAKE FULL USE OF ITS AUTHORITY TO MAKE TEMPORARY APPOINTMENTS IN ORDER TO PREVENT INCREASES IN THE NUMBER OF PERMANENT PERSONNEL AND NO EMPLOYEE IN THE FEDERAL CIVIL SERVICE, PROMOTED, TRANSFERRED OR APPOINTED TO A POSITION OF HIGHER GRADE SHALL BE ELIGIBLE, IN THE EVENT OF SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE, TO REINSTATEMENT AT A GRADE ABOVE THE GRADE HELD BY SUCH EMPLOYEE ON SEPTEMBER 1, 1950; AND ALL REINSTATEMENTS, TRANSFERS OR PROMOTIONS TO POSITIONS IN THE FEDERAL CIVIL SERVICE SHALL BE TEMPORARY AND FOR POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1949 SHALL BE MADE WITH THE CONDITION AND NOTICE TO THE INDIVIDUAL REINSTATED, TRANSFERRED OR PROMOTED THAT THE CLASSIFICATION GRADE OF THE POSITION IS SUBJECT TO POST-AUDIT AND CORRECTION BY THE APPROPRIATE DEPARTMENTAL OR AGENCY PERSONNEL OFFICE OR THE CIVIL SERVICE COMMISSION.

(B) THE NAMES OF ALL PERSONS TO BE TERMINATED UNDER REDUCTIONS IN FORCE IN THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT SHALL BE CERTIFIED AS ELIGIBLE FOR APPOINTMENT TO POSITIONS IN AGENCY PROGRAMS DETERMINED BY THE PRESIDENT TO BE RELATED DIRECTLY TO NATIONAL DEFENSE, IF QUALIFIED, AT NOT TO EXCEED THE GRADE AND SALARY LAST HELD IN THE TERMINATING AGENCY OR DEPARTMENT; AND

(C) THE DEPARTMENT OF DEFENSE IS AUTHORIZED TO CALL ON OTHER DEPARTMENTS OR AGENCIES FOR SUCH ADDITIONAL PERSONNEL AS IT MAY REQUIRE WITHIN THE LIMITS OF ITS FUNDS.

THE QUESTIONS PRESENTED WILL BE ANSWERED IN THE ORDER STATED IN YOUR LETTER.

QUESTION 1. IS THE PROVISION IN SECTION 1302 (A) PROHIBITING REINSTATEMENT AT A GRADE ABOVE THE GRADE HELD BY AN EMPLOYEE ON SEPTEMBER 1, 1950 LIMITED TO REINSTATEMENTS OF PERSONS SEPARATED BY REDUCTION IN FORCE?

QUESTION 2. IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE, MAY ALL OTHER REINSTATEMENTS BE MADE AT ANY GRADE FOR WHICH THE EMPLOYEE MEETS THE QUALIFICATIONS REQUIREMENTS OF THE COMMISSION?

THE PHRASE,"SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE," AS USED IN THE STATUTE, IS PECULIAR TO THE FEDERAL SERVICE AND NORMALLY REFERS TO THE DISCHARGE OF EMPLOYEES BECAUSE OF THE NECESSITY FOR REDUCING THE NUMBER OF EMPLOYEES IN A PARTICULAR DEPARTMENT OR AGENCY. HENCE, IN THE ABSENCE OF A CLEAR LEGISLATIVE INTENT TO THE CONTRARY, THE QUOTED PHRASE SHOULD BE ACCORDED ITS CUSTOMARY MEANING. NOTHING APPEARS IN THE LEGISLATIVE HISTORY OF THE ENACTMENT DISCLOSING ANY INTENT TO THE CONTRARY. ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE, IN VIEW OF WHICH AN AFFIRMATIVE ANSWER LIKEWISE IS REQUIRED TO THE SECOND QUESTION.

QUESTION 3. (A) IF AN EMPLOYEE SEPARATED BY REDUCTION IN FORCE HAS BEEN REINSTATED IN A POSITION NOT ABOVE THE GRADE HELD BY HIM ON SEPTEMBER 1, 1950, MAY HE THEREAFTER BE PROMOTED TO A HIGHER POSITION WITHIN A REASONABLE PERIOD OF TIME? IT IS ASSUMED THAT IF SUCH AN EMPLOYEE HAS BEEN REINSTATED IN A GRADE BELOW THE ONE HELD ON SEPTEMBER 1, 1950 THERE WOULD BE NO PROHIBITION AGAINST HIS PROMOTION UP TO THE GRADE HELD ON THAT DATE.

(B) WOULD THIS SECTION PERMIT THE COMMISSION TO PROVIDE BY REGULATION FOR PROMOTION OF SUCH AN EMPLOYEE WITHIN A REASONABLE PERIOD OF TIME, FOR EXAMPLE, AFTER SIX MONTHS' SERVICE IN THE GRADE?

THERE IS PERCEIVED NO RESTRICTION IN THE STATUTE AGAINST PROMOTION OF EMPLOYEES AFTER INITIAL REINSTATEMENT IN A GRADE NOT ABOVE THAT HELD ON SEPTEMBER 1, 1950; HENCE, BOTH SUBPARTS OF THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE, IT BEING UNDERSTOOD, OF COURSE, THAT SUCH PROMOTIONS WOULD BE TEMPORARY, AS PROVIDED BY SUBSECTION (A) OF THE INVOLVED SECTION.

QUESTION 4. ALTHOUGH SECTION 1302 (A) PROVIDES THAT NO EMPLOYEE PROMOTED, TRANSFERRED OR APPOINTED TO A POSITION IN A HIGHER GRADE SHALL BE ELIGIBLE, IN THE EVENT OF SEPARATION THROUGH REDUCTION IN FORCE, TO REINSTATEMENT AT A GRADE ABOVE THE GRADE HELD BY SUCH EMPLOYEE ON SEPTEMBER 1, 1950, SECTION 1302 (B) PROVIDES THAT THE NAMES OF PERSONS TO BE TERMINATED UNDER REDUCTIONS IN FORCE SHALL BE CERTIFIED AS ELIGIBLE FOR APPOINTMENT IN DEFENSE ACTIVITIES "AT NOT TO EXCEED THE GRADE AND SALARY LAST HELD IN THE TERMINATING AGENCY.' ASSUMING THAT AN EMPLOYEE WAS PROMOTED AFTER SEPTEMBER 1, 1950 AND IS SUBSEQUENTLY TERMINATED UNDER REDUCTION IN FORCE, DOES SECTION 1302 (B) PERMIT HIM TO BE CERTIFIED FOR APPOINTMENT AT A HIGHER GRADE THAN THAT HELD ON SEPTEMBER 1, 1950?

REFERRING TO SECTION 1302 AS A WHOLE IT IS APPARENT THAT SUBSECTION (B) HAS THE EFFECT OF CREATING AN EXCEPTION TO SUBSECTION (A), IN THAT SUBSECTION (B) COVERS A PARTICULAR CLASS OF EMPLOYEES, NAMELY, EMPLOYEES SEPARATED FROM THE SERVICE THROUGH REDUCTION IN FORCE AFTER SEPTEMBER 1, 1950, WHO ARE REQUIRED TO BE CERTIFIED AS ELIGIBLE FOR APPOINTMENTS TO POSITIONS IN DEFENSE PROGRAMS. UNDER SUCH CIRCUMSTANCES, SUBSECTION (B) PERMITS THE APPOINTMENT OF EMPLOYEES SO CERTIFIED AT THE GRADE AND SALARY LAST HELD IN THE AGENCY FROM WHICH LAST TERMINATED. UPON THAT VIEW OF THE MATTER AN EMPLOYEE SEPARATED FROM THE SERVICE THROUGH REDUCTION IN FORCE AFTER SEPTEMBER 1, 1950, IS REQUIRED TO BE CERTIFIED AS ELIGIBLE FOR APPOINTMENT IN DEFENSE PROGRAMS AT NOT TO EXCEED THE GRADE AND SALARY LAST HELD IN THE TERMINATING AGENCY, REGARDLESS OF WHETHER THE EMPLOYEE HAS BEEN PROMOTED OR DEMOTED AFTER SEPTEMBER 1, 1950. SPECIFICALLY, THEREFORE, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE, ASSUMING, OF COURSE, IT HAS REFERENCE ONLY TO AN EMPLOYEE REQUIRED TO BE CERTIFIED AS ELIGIBLE FOR APPOINTMENT IN DEFENSE PROGRAMS; OTHERWISE, THE ANSWER WOULD BE IN THE NEGATIVE.

QUESTION 5. MAY A FORMER EMPLOYEE WHO WAS SEPARATED BY REDUCTION IN FORCE PRIOR TO SEPTEMBER 1, 1950 BE REINSTATED OR APPOINTED IN A GRADE HIGHER THAN THE GRADE LAST HELD IN THE TERMINATING AGENCY?

SECTION 1302 IS SPECIFICALLY MADE APPLICABLE ONLY TO THE PERIOD " AFTER SEPTEMBER 1, 1950, AND DURING THE FISCAL YEAR 1951.' MOREOVER, THE LANGUAGE OF SUCH SECTION IS COUCHED IN FUTURISTIC TERMS. THAT IS TO SAY, IT REFERS TO EVENTS TO TAKE PLACE ON AND AFTER SEPTEMBER 1, 1950. ACCORDINGLY, IT REASONABLY MAY BE CONCLUDED THAT SUCH SECTION WOULD NOT BE APPLICABLE TO PRECLUDE THE REINSTATEMENT OF AN EMPLOYEE WHO WAS SEPARATED BY REDUCTION IN FORCE PRIOR TO SEPTEMBER 1, 1950, IN A GRADE HIGHER THAN THAT LAST HELD IN THE TERMINATING AGENCY. HENCE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.