Commission may inspect records of department. Manner and place of. Time limit, with exceptions. Examination for. appointment. A person who has been temporarily employed under the provisions of one section of this rule shall not for that reason be ineligible for employment under any other section. Any appointment under sections 1, 2, or 3 of this rule shall be promptly reported by letter to the Commission, as made, with a statement of the action taken for making permanent appointment. The Commission is authorized to inspect the records of any department or office to aid it in observing and enforcing the operation of the provisions of this rule and reporting thereon to the President. RULE IX.-REINSTATEMENT. A person separated without delinquency or misconduct from a competitive position, or from a position which he entered by transfer or promotion from a competitive position, may be reinstated in the department or office in which he formerly served, upon certificate of the Commission, subject to the following limitations: (a) The separation must have occurred within one year next preceding the date of the requisition of the nominating or appointing officer for such certificate; but this limitation shall not apply to a person who served in the civil war or the war with Spain and was honorably discharged, or his widow, or an army nurse of either war. (b) No person may be reinstated to a position requiring an examination different from that required for the position from which he was separated without passing an appropriate examination. The word "may" in Rule IX vests a discretion in the Commission. The question of reinstatement is one of administrative discretion, and is not to be granted except when consistent with the interests of the public service. (24 Op. A. G., 103.) Political activity.-Inasmuch as the issuance of a certificate for reinstatement is discretionary with the Commission, no certificate will be issued in any case where the party applying for reinstatement has previously resigned with a view of running for office or of indulging in a degree of political activity which would be prohibited if he had remained in the service, and who afterwards, having failed in his candidacy, or having indulged in the con templated political activity, seeks reinstatement. Heroic effort in saving life.-By executive order of April 4, 1908, an employee of the Life Saving Service who lost his health as an incident to his heroic conduct in saving life was excepted from the time limit of one year for reinstatement and allowed appointment to a position the duties of which he was competent to perform, and it was directed that this case was to be treated as a precedent to be followed in similar cases. (See Twenty-fourth Report, p. 135.) Reinstatement-contract surgeons.-A person who served as a contract surgeon in the late war of the rebellion, with troops in the field and in hospitals, and by completing his contract was honorably discharged from the service, is within the proviso to Rule IX, and entitled to the benefits thereby conferred. (19 Op. A. G., 533.) Reinstatement.-F., a clerk in the War Department, resigned June 30, 1888, and on November 2, 1888, was reappointed to a clerkship in the same department on a certificate for reinstatement given by the Commission under Rule IX, but failing to avail himself of this opportunity to reenter the service, the last-mentioned appointment was canceled January 28, 1889. On August 13, 1889, the Secretary of War requested that F. be again certified for reinstatement; but the Commission, on August 25, 1889, declined to issue a certificate, on the ground that he had been separated from the service more than a year, and was not eligible: Held, That the decision of the Commission, namely, that a second certificate for reappointment could not issue to F. because he had been separated from the service for more than a year, was in accordance with Rule IX. (19 Op. A. G., 416.) Quartermaster's volunteers.-Where one served in the war of the rebellion in the military organization known as "Quartermaster's Volunteers," or "Quartermaster's Brigade," and was honorably discharged from the service: Held, That he is entitled to the benefit of the proviso in Rule IX as one who "served in the military service of the United States in the late war of the rebellion, and was honorably discharged therefrom," within the meaning of that rule. (19 Op. A. G., 334.) Review of decision by Commission upon question arising under the rules.-Whether E. is eligible for reinstatement by reason of service in regiment of Indiana "minutemen" at the time of the insurgent foray known as Morgan's raid. The Commission decided that as the records of the War Department do not show that such an organization was in the service of the United States, he was not entitled to reinstatement. If the Commission determined the question in accordance with law, no further proceedings in the premises are authorized. No statute is found which authorizes the Secretary of the Interior or the Attorney-General, upon the suggestion of the secretary, to reverse or to review this action of the Commission. The limitation of the statutes and the precedents established by learned predecessors preclude me from now reviewing the decision made by the Civil Service Commission. (20 Op. A. G., 158.) Until officially requested to do so by the department in which service is sought the Commission has no authority to issue a certificate for reinstatement, and will not determine whether a reinstatement may be made. Reinstatement to position competitive at date of request.-Rule IX, allowing reinstatement of "a person separated without delinquency or misconduct from a competitive position," means separation from a position competitive at the time of the request for reinstatement, and not that it must have been so at the time of separation. (25 Op. A. G., 618.) An occupant of an excepted position at the time it becomes competitive, who is afterwards promoted to a position which is still excepted, and is subsequently separated from the service, has the same status for reinstatement as if he had been separated from the competitive position. A person reinstated to an apportioned position within a year from the date of separation will not be required to prove legal residence if he claims residence in the same State from which originally appointed and had proved same. A person separated from the nonapportioned service may be reinstated in the apportioned service of the same department, subject to the limitations of clauses (b), (c), (d), and (e) of section 8 and section 9 of Rule X. A person eligible for reinstatement to a position at the time of his temporary appointment thereto may be reinstated therein to date from his entrance upon such temporary service. The mere occasional performance by a person in one position of duties naturally belonging to another does not confer upon the person any right of reinstate- should obviously be reinstatable; otherment to such other position. The actual reappointment of a person may take place after the expiration of one year from the date of separation, provided that requisition is made within the year and that the vacancy exists or is about to occur at the time the requisition is made, but this must be construed as extending the privilege of appointment no longer than is reasonably required to take the necessary action. There is no authority for holding that a new term of eligibility begins after the certificate for reinstatement is issued. Certificate may issue for the reinstatement of a person who was dropped at the end of his probationary period for a cause which does not constitute delinquency or misconduct, but only for the purpose of absolute appointment, as there can be but one period of probation. If a substitute carrier who was separated from the service involuntarily through no fault of his own, be reinstated, he shall be restored to all the rights which attached to his original position, and will be entitled to resume the relative position as substitute which he held at the time of his separation; but if a substitute carrier who left the service voluntarily be reinstated, his relative position will be a matter in the discretion of the department, provided that it is no higher than that which he would have held had he remained in the service. The fact that there is no record in a department showing that a separation was for delinquency or misconduct can not be accepted as conclusive, nor can a person be reinstated upon a condonation of the delinquency or misconduct that occasioned his separation. The requisition for reinstatement must state, in the terms of the rule, that the separation was "without delinquency or misconduct," or that subsequent investigation shows the charges upon which the employee was dismissed to have been unfounded. The removal rule provides that penalties like in character shall be imposed for like offenses, and a person removed for delinquency or misconduct of a sort which does not usually result in removal wise the provision of the reinstatement rule would prevent the correction of action taken in contravention of the removal rule. A department in proposing the reinstatement of an employee removed for delinquency or misconduct should state that the charges were not true; that they did not justify removal, or that a similar punishment would not in general be imposed for a similar offense. When discharge is for inefficiency not due to delinquency or misconduct, and it is desired to give further trial on work of a character better fitted to the abilities of the employee, a certificate for reinstatement will issue. Section 8 of the civil-service act provides that no person habitually using intoxicating beverages to excess shall be appointed to or retained in any office or position to which the act applies, therefore overindulgence in intoxicants can not be regarded as a mere disease. It must be considered misconduct, and persons dismissed for that reason are not eligible for reinstatement. Revocation of the order of dismissal will not serve the purpose of reinstatement. A woman claiming right to reinstatement as the widow of a soldier must prove the death of the soldier and that she is his widow. A woman who remarries after the death of her husband is no longer his widow. Separation from the service before marriage to the soldier does not debar her from the privilege conferred by the rule. The civil war opened on April 15, 1861, and closed on August 20, 1866. Service between those dates, whether on the frontier or elsewhere, and whether or not in any State or part of the country in actual rebellion, will be regarded as service in the civil war. The war with Spain began April 21, 1898, and terminated April 11, 1899. The Philippine insurrection, which grew out of that war, terminated July 4, 1902. Military service after July 4, 1902, will not be accepted by the Commission as a basis for allowing reinstatement without regard to the year limitation. A reinstatement under which little or no service is performed, made for the purpose of prolonging the period of eligibility for reentrance to the service in defeat of the rule, can not be recognized as valid, and under the opinion of the Attorney-General (19 Op., 416) the Commission may refuse to issue a certificate for further reinstatement. The provision of section 9 of the civilservice act "that whenever there are already two or more members of a family in the public service in the grades covered by this act, no other member of such family shall be eligible for appointment to any of said grades," is held to apply to reinstatements. RULE X.-TRANSFER. Transfers shall be governed as follows: 1. No transfer shall be made to a competitive position above the lowest class in any grade unless the appointing officer shall certify that the position can not be adequately filled by promotion; but the Commission may, with the approval of the head of any department, adopt regulations applicable to the service in or under such department, declaring what class shall be regarded as the lowest in any grade. The lowest class in the grade of clerk in the Treasury and Post-Office departments at Washington is fixed by regulation at $900. Subordinate to promotions. Where a transfer involves a promotion the promotion rule and regulations must also be observed. competitive posi 2. No person appointed without competitive examina- From excepted to tion, to a position classified at the time of such appoint- tion." ment, and no person serving in an unclassified position or in a position named in Schedule A not appointed by competitive examination, or by transfer or promotion from a competitive position, shall be transferred to a competitive position. 3. Any person may be retransferred to a position in Retransfer. which he was formerly employed, or to any position to which transfer could be made therefrom, if since his transfer he has been continuously in the executive or judicial civil service of the United States or of its insular possessions. Such transfer may be made without compliance with clauses (b), (c), (d), and (e) of section 8 of this rule. Transfers under this section may be made without compliance with the requirement of examination provided in section 6 of Rule II, and except where the transfer is to some other department than the one in which the employee formerly served, without compliance with section 1 of Rule X. The Commission can not undertake to determine whether transfer may be made or whether an examination will be required until a request is received from the department to which the transfer is proposed. No specific authority for transfers is found in the civil-service act, and they are allowed only as necessary exceptions to competition. The rule is intended to impose such restrictions as will confine transfers within the fundamental provisions of the act—that is, that they should be warranted by the conditions of good administration. Pension examining surgeons and rural carriers. Without certificate in apportioned positions. When continuous service is had, although applicant entered various positions through competitive examinations instead of by transfer, such appointments will be regarded as transfers and transfer allowed as a retransfer. 4. Physicians employed as pension examining surgeons, whether organized in boards or working individually under the direction of the Commissioner of Pensions, and carriers in the Rural Free-Delivery Service, shall not be transferred to any other positions in the classified service. 5. In the apportioned service transfers within the same department or office may be made without certificate of the Commission, subject to the rules and regulations regarding promotion, unless different tests are prescribed for original entrance to the position to which transfer is proposed. Transfers under this section may be made without compliance with the re Without certificate in positions. quirement of examination provided in section 6 of Rule II. 6. In the nonapportioned service transfers within an nonapportioned office, among post-offices, among the different offices of the same customs district, among the military staff departments, and from the War Department to any military staff department, may be made without certificate of the Commission, and subject to the limitations prescribed in section 5 of this rule, unless otherwise provided by regulation of the Commission. An act of March 2, 1907 (34 Stat., 1205), provides that a clerk may be transferred to carrier and a carrier to clerk in any grade not higher than the corresponding grade of salary. Transfers under this section may be made without compliance with the requirement of examination provided in section 6 of Rule II. A substitute can not be transferred to a regular position in another part of the service. He must first become a regular employee. Transfers to the substitute force of a post-office, except from the substitute force of another post-office, may be made to any position on the substitute list. A substitute transferred from one post-office to another shall go to the foot of the substitute list. The transfer of a substitute within a post-office from the clerk to the carrier substitute force, or vice versa, may not be made except to the foot of the substitute roll: Provided, That a mutual exchange of positions between a substitute clerk and a substitute carrier may be made, but not to any higher position on the substitute roll than that to which each would have been entitled if his original appointment had been to the roll to which transferred: And provided further, That when a substitute is transferred from the clerk to the carrier roll, or vice versa, and afterwards retransferred to the roll upon which his name originally appeared, then his name shall be entered upon such roll in the order of his original appointment. |