B-140969, NOV. 19, 1959
Highlights
REQUESTS RECONSIDERATION OF YOUR CLAIM WHICH WAS DISALLOWED IN OUR OFFICE SETTLEMENT OF SEPTEMBER 28. WE HAVE YOUR LETTER OF OCTOBER 10. IS AS FOLLOWS: "PERSONS GIVEN TEMPORARY APPOINTMENT THROUGH THE APPLICANT SUPPLY SYSTEM DO NOT ACQUIRE A COMPETITIVE STATUS. THEY ARE NOT REQUIRED BY CIVIL SERVICE REGULATION TO SERVICES A TRIAL OR PROBATIONARY PERIOD. AN EMPLOYEE SERVING UNDER TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF A REGISTER MAY BE REASSIGNED UNDER SECTION 2.501 (A) (2) TO ANOTHER POSITION TO WHICH HIS ORIGINAL ASSIGNMENT COULD HAVE BEEN MADE BY THE SAME APPOINTING OFFICER FROM THE SAME RECRUITING LIST UNDER THE SAME ORDER OF CONSIDERATION. - TEMPORARY APPOINTMENTS PENDING ESTABLISHMENT OF REGISTERS MAY CONTINUE ONLY UNTIL THERE ARE SUFFICIENT ELIGIBLES AVAILABLE AND THE COMMISSION TAKES DISPLACEMENT ACTION.
B-140969, NOV. 19, 1959
TO MR. ARTHUR B. DAUB:
YOUR LETTER OF OCTOBER 3, 1959, REQUESTS RECONSIDERATION OF YOUR CLAIM WHICH WAS DISALLOWED IN OUR OFFICE SETTLEMENT OF SEPTEMBER 28, 1959. ALSO, WE HAVE YOUR LETTER OF OCTOBER 10, 1959, CITING OUR DECISION OF JULY 22, 1959, B-129169, 39 COMP. GEN. 52, AS WELL AS DECISIONS OF THE SUPREME COURT, AS HAVING APPLICATION TO YOUR CASE.
YOUR LETTER OF JULY 10, 1959, TO OUR OFFICE EXPRESSLY CLAIMED "RETROACTIVE PAY, STEP INCREASES AND SENIORITY RIGHTS" ALLEGEDLY DUE YOU UNDER THE PROVISIONS OF 5 U.S.C. 652. THE RECORD SHOWS THAT YOU HELD A TEMPORARY APPOINTMENT UNDER THE CIVIL SERVICE REGULATIONS (F.P.M. 21-226) 5 C.F.R. 2.302 AND 2.501 (A) (2) AT THE TIME OF YOUR SEPARATION, EFFECTIVE JULY 22, 1957, AND AT THE TIME OF YOUR RESTORATION JANUARY 19, 1959, TO THE SAME POSITION, AS PRESERVED FOOD INSPECTOR, JOB NO. 3640, GS-1905-7, UNDER THE NEW YORK MILITARY SUBSISTENCE INSPECTION OFFICE, BROOKLYN, NEW YORK. THE SETTLEMENT OF SEPTEMBER 28, 1959, ADVISE YOU THAT THE PROVISIONS OF 5 U.S.C. 652 APPLY ONLY TO PERSONS IN THE CLASSIFIED CIVIL SERVICE.
THE REGULATION 5 C.F.R. 2.302 DOES NOT CONFER STATUS "IN THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF THAT PHRASE AS CONTAINED IN THE BACK PAY STATUTE, 5 U.S.C. 652. THE FEDERAL PERSONNEL MANUAL, PAGE X-1-22.02, EXPLAINING THE STATUS AND TENURE OF TEMPORARY APPOINTEES OF YOUR CLASS, IN PERTINENT PART, IS AS FOLLOWS:
"PERSONS GIVEN TEMPORARY APPOINTMENT THROUGH THE APPLICANT SUPPLY SYSTEM DO NOT ACQUIRE A COMPETITIVE STATUS. THEY ARE NOT REQUIRED BY CIVIL SERVICE REGULATION TO SERVICES A TRIAL OR PROBATIONARY PERIOD. THEY DO NOT ACQUIRE ELIGIBILITY FOR NONCOMPETITIVE MOVEMENT TO OTHER POSITIONS OR FOR REAPPOINTMENT AFTER SEPARATION FROM THE SERVICE; HOWEVER, AN EMPLOYEE SERVING UNDER TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF A REGISTER MAY BE REASSIGNED UNDER SECTION 2.501 (A) (2) TO ANOTHER POSITION TO WHICH HIS ORIGINAL ASSIGNMENT COULD HAVE BEEN MADE BY THE SAME APPOINTING OFFICER FROM THE SAME RECRUITING LIST UNDER THE SAME ORDER OF CONSIDERATION.
"TENURE.--- TEMPORARY APPOINTMENTS PENDING ESTABLISHMENT OF REGISTERS MAY CONTINUE ONLY UNTIL THERE ARE SUFFICIENT ELIGIBLES AVAILABLE AND THE COMMISSION TAKES DISPLACEMENT ACTION. REASSIGNMENT UNDER SECTION 2.501 (A) (2) DOES NOT CHANGE THE TENURE OF THE EMPLOYEE.'
IN THAT REGARD, CIVIL SERVICE RULE 1, 5 C.F.R. 01.3, DEFINES THE "COMPETITIVE SERVICE" AS HAVING THE SAME MEANING AS TO THE WORDS "CLASSIFIED SERVICE" OR "CLASSIFIED (COMPETITIVE) RVICE," OR "CLASSIFIED CIVIL SERVICE" AS DEFINED IN EXISTING STATUTES AND EXECUTIVE ORDERS. IN 5 U.S.C. 658 (FORMERLY SECTION 679) THE DEFINITION BY STATUTE IS AS FOLLOWS:
"THE EXPRESSION "CLASSIFIED CIVIL SERVICE" AS THE SAME OCCURS IN ACTS OF CONGRESS SHALL, UNLESS OTHERWISE PROVIDED, BE CONSTRUED TO INCLUDE ALL PERSONS WHO HAVE BEEN OR MAY BE GIVEN A COMPETITIVE STATUS IN THE CLASSIFIED CIVIL SERVICE, WITH OR WITHOUT COMPETITIVE EXAMINATION, BY LEGISLATIVE ENACTMENT, OR UNDER THE CIVIL SERVICE RULES PROMULGATED BY THE PRESIDENT, OR BY EXECUTIVE ORDERS COVERING GROUPS OF EMPLOYEES WITH THEIR POSITIONS INTO THE COMPETITIVE CLASSIFIED SERVICE OR AUTHORIZING THE APPOINTMENT OF INDIVIDUALS TO POSITIONS WITHIN SUCH RVICE.'
THE RECORD SHOWS THAT THE CIVIL SERVICE COMMISSION HAS ADVISED YOU REPEATEDLY (SEPTEMBER 9, 1957, OCTOBER 4, 1957, AND JULY 29, 1959) THAT, AS YOU WERE SERVING AS A TEMPORARY EMPLOYEE, YOU HAD NO RIGHT OF APPEAL TO THE COMMISSION AND THAT YOUR "DISCHARGE FROM DRAFT" ON SEPTEMBER 3, 1918 DID NOT ENTITLE YOU TO ANY VETERANS PREFERENCE UNDER THE LAW NOTWITHSTANDING THE EMPLOYING AGENCY'S ENTRIES ON YOUR APPOINTMENT PAPERS (S.F. 50).
LOSS OF PAY FOR A SEPARATION FROM SERVICE IS PAYABLE ADMINISTRATIVELY FROM REGULAR APPROPRIATIONS ONLY WHEN A DETERMINATION HAS BEEN MADE THAT THE RESTORED EMPLOYEE'S CASE COMES WITH IN THE PURVIEW OF ONE OF THE GENERAL STATUTES, SUCH AS 5 U.S.C. 652, OR 5 U.S.C. 863 WHICH DEALS WITH VIOLATIONS OF VETERANS PREFERENCE ELIGIBILITY. NEITHER OF THOSE STATUTES IS APPLICABLE IN YOUR CASE; NOR IS 5 U.S.C. 22-1 CONCERNING SUMMARY SUSPENSION OR SEPARATION OF EMPLOYEES FOR REASONS AFFECTING THE NATIONAL SECURITY. OUR DECISION OF JULY 22, 1959, IS APPLICABLE ONLY TO CASES FALLING WITHIN THE PURVIEW OF SUCH LATTER STATUTE (ACT OF AUGUST 26, 1950, 5 U.S.C. 22 1).
REFERRING TO THE COURT DECISION CITED IN YOUR LETTER CONCERNING FAILURE OF AN AGENCY TO FOLLOW ITS OWN REGULATIONS IN EFFECTING SEPARATIONS FROM THE SERVICE, YOU ARE INFORMED THAT WE HAVE BEEN UNABLE TO FIND ANY REGULATION OF THE DEPARTMENT OF THE ARMY REQUIRING CERTAIN PROCEDURE TO BE FOLLOWED IN REMOVING EMPLOYEES FROM THE SERVICE WHO ARE HOLDING TEMPORARY APPOINTMENTS PENDING ESTABLISHMENT OF A REGISTER. EVEN IF SUCH A REGULATION DID EXIST AND WAS NOT FOLLOWED IN EFFECTING YOUR REMOVAL, OUR OFFICE WOULD NOT HAVE AUTHORITY TO AWARD BACK PAY IN YOUR CASE SINCE IT DOES NOT COME UNDER ANY OF THE STATUTES ENUMERATED ABOVE. THE FACT THAT THE COURT OF CLAIMS MAY HAVE AWARDED COMPENSATION UNDER SIMILAR CIRCUMSTANCES IS NOT SUFFICIENT BASIS FOR OUR OFFICE TO ASSUME SUCH JURISDICTION.
IN VIEW OF THE FOREGOING CIRCUMSTANCES THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.