B-181353, JUN 26, 1974

B-181353, JUN 26, 1974

GAO EMPLOYEE WHO TRANSFERRED TO FEDERAL ENERGY OFFICE (FEO) DURING THE INTERIM PERIOD BEGINNING MAY 7, 1974, THE DATE OF APPROVAL OF THE FEDERAL ENERGY ADMINISTRATION ACT, AND ITS EFFECTIVE DATE - NOT LATER THAN 60 DAYS FROM MAY 7, 1974 - ACQUIRES REEMPLOYMENT RIGHTS SINCE SUCH ACT IS A LAW IN BEING WITH ITS ACTUAL EFFECTIVE DATE SUSPENDED FOR A PERIOD NOT LATER THAN 60 DAYS FROM DATE OF ENACTMENT AND SECTION 28 OF SUCH ACT PROVIDES FOR SUCH BENEFITS. THUS, EVEN THOUGH GAO EMPLOYEES ARE NOT COVERED BY EXISTING GENERAL AUTHORITY GIVING REEMPLOYMENT RIGHTS TO EXECUTIVE BRANCH EMPLOYEE WHO TRANSFERRED TO FEO PRIOR TO MAY 7 - 5 CFR 352 - THEY ARE ENTITLED TO REEMPLOYMENT RIGHTS AFTER MAY 7.

TO MR. ROMULO GARCIA:

MR. ROMULO GARCIA, PREVIOUSLY EMPLOYED BY THE GENERAL ACCOUNTING OFFICE (GAO), FIELD OPERATIONS DIVISION, REGIONAL OFFICE AT DALLAS, TEXAS, TRANSFERRED EFFECTIVE JUNE 9, 1974, TO THE FEDERAL ENERGY OFFICE (FEO). HE REQUESTS A DECISION ON HIS REEMPLOYMENT RIGHTS.

PRIOR TO MAY 7, 1974, THE ONLY GENERAL AUTHORITY FOR GRANTING REEMPLOYMENT RIGHTS WAS SET FORTH IN SUBPART B OF PART 352 OF THE CIVIL SERVICE COMMISSION REGULATIONS. THE COVERAGE SECTION OF THOSE REGULATIONS - SECTION 352.204 - AS WRITTEN IS LIMITED TO CERTAIN EMPLOYEES OCCUPYING POSITIONS IN THE EXECUTIVE BRANCH. ALTHOUGH THE GAO IS AN "EXECUTIVE AGENCY" WITHIN THE TERMS OF 5 U.S.C. 105, IT IS NOT AN AGENCY WITHIN THE EXECUTIVE BRANCH. THUS, THE CITED REGULATIONS DO NOT CONFER UPON ANY GAO EMPLOYEE ANY ENFORCEABLE RIGHT OF REEMPLOYMENT ALTHOUGH EMPLOYEES OF THE EXECUTIVE BRANCH WERE ALLOWED REEMPLOYMENT RIGHTS UPON TRANSFER TO FEO THEREUNDER. IN THIS CONNECTION STAFF MEMBERS OF THE CIVIL SERVICE COMMISSION INFORMALLY HAVE ADVISED THAT GAO WAS INTENTIONALLY EXCLUDED FROM THE REGULATIONS AND ACCORDINGLY IT WAS NOT AUTHORIZED TO GRANT REEMPLOYMENT RIGHTS UNDER AUTHORITY OF THAT REGULATION.

MR. GARCIA AND OTHER EMPLOYEES WHO HAVE TRANSFERRED TO THE FEDERAL ENERGY OFFICE HAVE BEEN ADVISED THAT THERE IS NO PROPER BASIS FOR GRANTING REEMPLOYMENT RIGHTS.

THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974, PUBLIC LAW 93-275, WAS APPROVED MAY 7, 1974. THAT ACT IS EFFECTIVE 60 DAYS FROM THE DATE OF ENACTMENT OR AT SUCH EARLIER DATE AS THE PRESIDENT MAY PUBLISH NOTICE IN THE FEDERAL REGISTER. SECTION 28 OF PUBLIC LAW 93-275 PROVIDES IN PERTINENT PART THAT -

"*** AN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT WHO IS APPOINTED, WITHOUT BREAK IN SERVICE OF ONE OR MORE WORKDAYS, TO ANY POSITION FOR CARRYING OUT FUNCTIONS UNDER THIS ACT IS ENTITLED, UPON SEPARATION FROM SUCH POSITION OTHER THAN FOR CAUSE, TO REEMPLOYMENT IN THE POSITION OCCUPIED AT THE TIME OF APPOINTMENT, OR IN A POSITION OF COMPARABLE GRADE AND SALARY."

MR. GARCIA HAD BEEN ADVISED THAT IF HE WAITED UNTIL THE EFFECTIVE DATE OF PUBLIC LAW 93-275 THERE WOULD BE NO QUESTION AS TO HIS STATUTORY REEMPLOYMENT RIGHTS. SINCE HE TRANSFERRED BEFORE SUCH EFFECTIVE DATE, THE ISSUE PRESENTED BY HIS REQUEST IS WHETHER AN EMPLOYEE WHO TRANSFERS TO THE FEDERAL ENERGY OFFICE AFTER THE DATE OF APPROVAL OF THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974 BUT BEFORE THE SPECIFIED DATE THAT SUCH ACT WOULD BECOME EFFECTIVE ACQUIRES ANY ENFORCEABLE REEMPLOYMENT RIGHT IN THE EVENT HE REMAINS CONTINUOUSLY EMPLOYED IN CARRYING OUT THE FUNCTIONS DESCRIBED IN SUCH ACT FROM THE DATE OF HIS TRANSFER UNTIL HE IS SEPARATED - OTHER THAN FOR CAUSE - AFTER THE EFFECTIVE DATE OF THE FEDERAL ENERGY ADMINISTRATION ACT.

ALTHOUGH FROM A TECHNICAL VIEWPOINT IT COULD BE ARGUED THAT ONLY THOSE EMPLOYEES TRANSFERRING TO THE FEDERAL ENERGY ADMINISTRATION AFTER THE EFFECTIVE DATE SPECIFIED IN SUCH ACT IT APPEARS THAT A LESS LITERAL APPLICATION OF THE STATUTE IS APPROPRIATE.

SINCE THE FEDERAL ENERGY ADMINISTRATION ACT HAS BEEN ENACTED BY THE CONGRESS AND APPROVED BY THE PRESIDENT, IT IS A LAW IN BEING WITH THE ACTUAL EFFECTIVE DATE THEREOF SUSPENDED FOR A PERIOD NOT LATER THAN 60 DAYS FROM THE DATE OF ENACTMENT. THE FUNCTIONS OF THE ADMINISTRATION ARE DESCRIBED IN SUCH ACT JUST AS FULLY ON THE DATE OF THE PRESIDENTIAL APPROVAL AS ON THE SPECIFIED EFFECTIVE DATE. SINCE ANY GAO EMPLOYEE TRANSFERRING TO A POSITION COVERED BY THE ACT DURING THE TRANSITIONAL PERIOD BETWEEN THE DATE OF APPROVAL, MAY 7, 1974, AND THE SPECIFIED EFFECTIVE DATE OF SUCH ACT REASONABLY MAY BE REGARDED AS TRANSFERRING TO A "POSITION FOR CARRYING OUT THE FUNCTIONS UNDER THIS ACT" WITHIN THE CONTEMPLATION OF SECTION 28 AND UNLESS SUCH EMPLOYEE THEREAFTER IS SEPARATED FROM SUCH POSITION PRIOR TO THE SPECIFIED EFFECTIVE DATE OF SUCH ACT IT IS HELD THAT HE IS ENTITLED TO REEMPLOYMENT BENEFITS TO THE EXTENT OTHERWISE AUTHORIZED UNDER SECTION 28.