B-100175, FEBRUARY 20, 1951, 30 COMP. GEN. 353

B-100175, FEBRUARY 20, 1951, 30 COMP. GEN. 353

OFFICERS AND EMPLOYEES - REINSTATEMENTS - EFFECT OF SUPPLEMENTAL APPROPRIATION ACT, 1951 THE PROHIBITION IN SECTION 1302 (A) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, AGAINST REINSTATEMENT OF EMPLOYEES SEPARATED FROM THE SERVICE THROUGH REDUCTION IN FORCE ABOVE THE GRADE HELD BY SUCH EMPLOYEES ON SEPTEMBER 1, 1950, IS NOT LIMITED SOLELY TO REINSTATEMENTS UNDER THE PROCEDURE APPLICABLE TO THE CLASSIFIED CIVIL SERVICE, BUT CONTEMPLATES REEMPLOYMENT IN THE ENTIRE FEDERAL CIVIL SERVICE, AND THEREFORE THE REINSTATEMENT RESTRICTION IS APPLICABLE TO COMPETITIVE PERSONNEL ACTIONS AS WELL AS TO NONCOMPETITIVE PERSONNEL ACTIONS. THE GRADE AND SALARY RESTRICTIONS IN SECTION 1302 (B) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, ON THE CERTIFICATION OF PERSONS TERMINATED UNDER REDUCTIONS IN FORCE TO DEFENSE AGENCY POSITIONS ARE NOT APPLICABLE TO ANY OTHER TYPE OF CERTIFICATION AUTHORIZED UNDER THE CIVIL-SERVICE LAWS AND REGULATIONS, AND THEREFORE THE RESTRICTIONS WOULD NOT APPLY WHERE AN EMPLOYEE HAD ESTABLISHED HIS ELIGIBILITY FOR APPOINTMENT TO A HIGHER GRADE POSITION IN A COMPETITIVE EXAMINATION, WITHOUT REFERENCE TO HIS HAVING BEEN SEPARATED BY REDUCTION IN FORCE. THE CERTIFICATION OF PERSONS TERMINATED BY REDUCTION IN FORCE TO A DEFENSE AGENCY, IF QUALIFIED, AT GRADES AND SALARIES NOT IN EXCESS OF THOSE LAST HELD IN THE TERMINATING AGENCY AS REQUIRED BY SECTION 1302 (B) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, IS NOT DISCRETIONARY, SO THAT THE LACK OF SUCH CERTIFICATION AT THE TIME AN OTHERWISE QUALIFIED EMPLOYEE IS APPOINTED TO A DEFENSE AGENCY POSITION WOULD NOT EXCEPT THE EMPLOYEE FROM SUCH STATUTORY GRADE AND SALARY RESTRICTION. THE PROHIBITION IN SECTION 1302 (A) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, AGAINST THE REINSTATEMENT OF EMPLOYEES SEPARATED FROM THE SERVICE THROUGH REDUCTION IN FORCE ABOVE THE GRADE HELD BY THEM ON SEPTEMBER 1, 1950, APPLIES TO EMPLOYEES WHO HAVE BEEN "PROMOTED, TRANSFERRED, OR APPOINTED TO A POSITION OF A HIGHER GRADE" AFTER SEPTEMBER 1, 1950, AND THEREFORE AN EMPLOYEE WHO HAS NOT RECEIVED A HIGHER GRADE SINCE SEPTEMBER 1, 1950, AND WHO IS SUBSEQUENTLY SEPARATED BY REDUCTION IN FORCE MAY BE SELECTED, NONCOMPETITIVELY OR COMPETITIVELY, FOR APPOINTMENT IN A NONDEFENSE AGENCY WITHOUT REGARD TO THE GRADE OF THE POSITION HE OCCUPIED ON SEPTEMBER 1, 1950. A SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE DOES NOT OCCUR UNTIL THE EMPLOYEE ACTUALLY IS SEPARATED FROM THE ROLLS OF THE AGENCY, AND THEREFORE THE GRADE AND SALARY RESTRICTION IN SECTION 1302 (A) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, APPLICABLE TO PERSONS TERMINATED UNDER REDUCTION IN FORCE, WOULD PRECLUDE THE APPOINTMENT OF AN EMPLOYEE WHO HAS BEEN REACHED FOR REDUCTION IN FORCE ACTION TO A POSITION AT A HIGHER GRADE IN ANOTHER AGENCY, PRIOR TO ACTUAL SEPARATION FROM THE FIRST AGENCY.

ACTING COMPTROLLER GENERAL FISHER TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 20, 1951.

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1950, REQUESTING A DECISION UPON SEVERAL QUESTIONS INVOLVING THE APPLICATION OF SECTION 1302 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1951, PUBLIC LAW 843, APPROVED SEPTEMBER 27, 1950, 64 STAT. 1066, THE PROVISIONS OF WHICH ARE, IN PERTINENT PART, AS FOLLOWS:

(A) * * * 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 * * *.

(B) THE NAMES OF ALL PERSONS TO BE TERMINATED UNDER REDUCTION 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 * * *.

THE QUESTIONS WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED:

1. DOES THE PROHIBITION IN SECTION 1302 (A) AGAINST REINSTATEMENT ABOVE THE GRADE HELD ON SEPTEMBER 1, 1950, APPLY TO COMPETITIVE PERSONNEL ACTIONS (I.E., SELECTIONS FOR PROBATIONAL OR INDEFINITE APPOINTMENTS FROM CERTIFICATES ISSUED BY THE COMMISSION AS THE RESULT OF REGULAR COMPETITIVE EXAMINATIONS) AS WELL AS TO NONCOMPETITIVE PERSONNEL ACTIONS?

AS INDICATED IN YOUR LETTER, SECTION 1302 (A) OF THE ABOVE-QUOTED STATUTE IS NOT CONFINED TO THE "CLASSIFIED CIVIL SERVICE" BUT EMBRACES THE ENTIRE FEDERAL CIVIL SERVICE; HENCE, IT IS REASONABLE TO CONCLUDE THAT THE WORD "REINSTATEMENT," APPEARING IN SAID STATUTE, CONTEMPLATES A REEMPLOYMENT IN THE FEDERAL CIVIL SERVICE AND IS NOT LIMITED SOLELY TO A REINSTATEMENT UNDER THE PROCEDURE APPLICABLE TO THE CLASSIFIED CIVIL SERVICE. THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

2. (A) DOES THE RESTRICTION IN SECTION 1302 (B) ON CERTIFICATION TO A DEFENSE AGENCY ABOVE THE GRADE HELD IN THE TERMINATING AGENCY APPLY TO SELECTIONS FROM CERTIFICATES ISSUED BY THE COMMISSION WHERE THE EMPLOYEE ESTABLISHED HIS ELIGIBILITY FOR APPOINTMENT TO A HIGHER GRADE POSITION IN A COMPETITIVE EXAMINATION WITHOUT REFERENCE TO HIS HAVING BEEN SEPARATED BY REDUCTION IN FORCE?

(B) IT IS ASSUMED THAT SECTION 1302 (B) APPLIES TO EMPLOYEES WHO BECAUSE OF SEPARATION BY REDUCTION IN FORCE, ARE INFORMALLY REFERRED TO DEFENSE AGENCIES FOR NONCOMPETITIVE SELECTION AS WELL AS TO EMPLOYEES WHOSE NAMES ARE "CERTIFIED" FROM REGISTERS AHEAD OF ELIGIBLES WHO COMPETED IN THE REGULAR EXAMINATION. DOES SECTION 1302 (B) ALSO APPLY TO EMPLOYEES WHO ARE NOT CERTIFIED BY THE COMMISSION, BUT WHO SEEK THEIR OWN VACANCIES AND ARE NONCOMPETITIVELY SELECTED FOR FURTHER EMPLOYMENT BY A DEFENSE AGENCY?

SUBPART (A) OF THIS QUESTION IS ANSWERED IN THE NEGATIVE, THERE BEING NO INDICATION IN SECTION 1302 (B) OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY THAT THE PROVISIONS THEREOF ARE APPLICABLE TO ANY OTHER TYPE OF CERTIFICATION AUTHORIZED UNDER THE CIVIL SERVICE LAWS AND REGULATIONS.

WITH REFERENCE TO SUBPART (B) OF THIS QUESTION, IT IS UNDERSTOOD, THROUGH INFORMAL CONTACT WITH A REPRESENTATIVE OF YOUR OFFICE, THAT THE SUGGESTION THEREIN THAT CERTAIN EMPLOYEES OTHERWISE SUBJECT TO SECTION 1302 (B) WILL NOT BE CERTIFIED FOR EMPLOYMENT IN DEFENSE PROGRAMS IS NOT ENTIRELY CORRECT. THE STATUTE REQUIRES THE NAMES OF ALL EMPLOYEES TERMINATED BY REDUCTION IN FORCE " AFTER SEPTEMBER 1, 1950, AND DURING THE FISCAL YEAR 1951," TO BE CERTIFIED AS ELIGIBLE FOR APPOINTMENT IN DEFENSE AGENCIES, IF QUALIFIED, AT GRADES AND SALARIES NOT IN EXCESS OF THOSE LAST HELD IN THE TERMINATING AGENCY. WHILE IT IS POSSIBLE THAT AN EMPLOYEE TERMINATED THROUGH REDUCTION IN FORCE MAY BE APPOINTED IN A DEFENSE AGENCY PRIOR TO HIS ACTUALLY BEING CERTIFIED AS ELIGIBLE THEREFOR UNDER THE STATUTE, NEVERTHELESS, SINCE THE CERTIFICATION REQUIRED BY THE STATUTE IS NOT DISCRETIONARY IF AN EMPLOYEE BE OTHERWISE QUALIFIED, THE LACK OF SUCH CERTIFICATION AT THE TIME OF APPOINTMENT WOULD NOT EXCEPT THE EMPLOYEE FROM THE PROVISION RESTRICTING THE APPOINTMENT AT NOT TO EXCEED THE GRADE AND SALARY LAST HELD BY THE EMPLOYEE IN THE AGENCY FROM WHICH SEPARATED. AS A MATTER OF FACT, THE DEFENSE AGENCY EFFECTING THE APPOINTMENT PROPERLY COULD ASSUME THAT THE CERTIFICATION OF ELIGIBILITY HAD BEEN MADE OR WOULD BE FORTHCOMING IN THE IMMEDIATE FUTURE. THEREFORE, THIS PART OF THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

3. ARE WE CORRECT IN ASSUMING THAT SECTION 1302 (A) HAS NO APPLICATION TO AN EMPLOYEE WHO HAS NOT BEEN "PROMOTED, TRANSFERRED, OR APPOINTED TO A POSITION OF HIGHER GRADE" AFTER SEPTEMBER 1, 1950, AND THAT IF HE IS SUBSEQUENTLY SEPARATED BY REDUCTION IN FORCE HE MAY BE SELECTED, NONCOMPETITIVELY OR COMPETITIVELY, FOR APPOINTMENT IN A NONDEFENSE AGENCY WITHOUT REGARD TO THE GRADE OF THE POSITION HE OCCUPIED ON SEPTEMBER 1, 1950?

YOUR ASSUMPTION STATED IN THIS QUESTION APPEARS CORRECT.

4. (A) IN THE EVENT THAT AN EMPLOYEE WHO HAS BEEN REACHED FOR REDUCTION IN FORCE ACTION IN ONE AGENCY SECURES AN OFFER OF EMPLOYMENT BY ANOTHER AGENCY PRIOR TO ACTUAL SEPARATION FROM THE ROLLS OF THE FIRST AGENCY, WOULD SECTION 1302 (A) PERMIT THE SECOND AGENCY TO APPOINT HIM AT A GRADE IN EXCESS OF THE GRADE HELD ON SEPTEMBER 1, 1950 (A) DURING THE REDUCTION IN FORCE ACTIVE-DUTY NOTICE PERIOD? (B) DURING THE PERIOD HE IS CARRIED ON THE ROLLS IN AN ANNUAL LEAVE STATUS PRIOR TO REDUCTION-IN-FORCE FURLOUGH? AND (C) DURING THE PERIOD HE IS ON FURLOUGH WITHOUT PAY?

(B) AN EMPLOYEE IS GIVEN NOTICE THAT HE WILL BE SEPARATED BY REDUCTION IN FORCE ON DECEMBER 31, 1950. ON DECEMBER 28TH HE RESIGNS. WOULD HIS RESIGNATION BE CONSIDERED A "SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE" FOR THE PURPOSES OF SECTION 1302 (A/?

IN DISCUSSING THE PHRASE "SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE," AS USED IN SECTION 1302 (A) OF THE STATUTE, IT WAS STATED IN OFFICE DECISION OF OCTOBER 4, 1950, B-98188, 30 COMP. GEN. 141, TO YOU, THAT SUCH PHRASE REFERS TO THE DISCHARGE OF EMPLOYEES FOR THE PURPOSE OF REDUCING THE NUMBER OF EMPLOYEES IN A PARTICULAR DEPARTMENT OR AGENCY.

THE SEPARATION OR DISCHARGE OF AN EMPLOYEE IS NOT COMPLETE UNTIL THERE IS A SEVERANCE OF THE EMPLOYEE'S CONNECTION WITH THE DEPARTMENT OR AGENCY INVOLVED. IN A REDUCTION IN FORCE PROGRAM, IT IS NOT UNUSUAL FOR NOTICES TO EMPLOYEES OF SEPARATION THROUGH REDUCTION IN FORCE TO BE CANCELED PRIOR TO THEIR EFFECTIVE DATE; ALSO, AN EMPLOYEE PLACED ON ANNUAL LEAVE OR FURLOUGH WITHOUT PAY IN A REDUCTION IN FORCE PROGRAM MAY BE RECALLED TO DUTY AT ANY TIME PRIOR TO THE EXPIRATION THEREOF. UNDER SUCH CIRCUMSTANCES, IT IS APPARENT THAT A SEPARATION FROM THE SERVICE THROUGH REDUCTION IN FORCE DOES NOT OCCUR UNTIL THE EMPLOYEE ACTUALLY IS SEPARATED FROM THE ROLLS OF THE AGENCY. ACCORDINGLY, THE THREE SUBPARTS OF PART (A) OF THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE AND FOR THE SAME REASONS PART (B) OF THE QUESTION IS ANSWERED IN THE NEGATIVE.

THE LAST TWO QUESTIONS PRESENTED IN YOUR LETTER, NAMELY, QUESTIONS 5 AND 6, DEAL WITH INQUIRIES RECEIVED BY THE COMMISSION AS TO WHETHER THE REPROMOTION OF EMPLOYEES TO GRADES THEY FORMERLY HELD, IS REQUIRED TO BE DESIGNATED AS TEMPORARY UNDER SECTION 1302 OF THE STATUTE, IT APPEARING THAT ONE EMPLOYEE WAS DEMOTED AT HIS OWN REQUEST TO EFFECT A CHANGE TO A DIFFERENT LOCATION AND THAT THE OTHER EMPLOYEE WAS DEMOTED AS A RESULT OF A REDUCTION IN FORCE ACTION. SUCH MATTERS PRIMARILY ARE FOR DETERMINATION BY THE COMMISSION BUT IT MAY BE STATED AS MY VIEW THAT THE LANGUAGE OF THE STATUTE STATING THAT "ALL REINSTATEMENTS, TRANSFERS, OR PROMOTIONS TO POSITIONS IN THE FEDERAL CIVIL SERVICE SHALL BE TEMPORARY" WOULD EMBRACE THE TYPES OF PROMOTIONS DESCRIBED IN THE ABOVE-REFERRED-TO INQUIRIES.