Skip to main content

B-165710, JAN. 10, 1969

B-165710 Jan 10, 1969
Jump To:
Skip to Highlights

Highlights

DAVIS WAS SEPARATED FROM THE POSTAL SERVICE ON MARCH 23. THE COMMISSION ORDERED HIS RESTORATION TO DUTY WHICH WAS ACCOMPLISHED ON OCTOBER 2. HE WAS GRANTED BACK PAY UNDER THE PROVISIONS OF THE ACT OF JUNE 10. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED. SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. YOU ARE OF THE OPINION THAT THE ABOVE-CITED ACT IS NOT APPLICABLE IN MR. DAVIS' CASE SINCE HE WAS NOT RESTORED TO DUTY AS THE RESULT OF A DETERMINATION BY A COURT THAT HAD JURISDICTION OF THE MATTER.

View Decision

B-165710, JAN. 10, 1969

TO NOBLE L. FREEMON, JR., ESQUIRE:

THE POST OFFICE DEPARTMENT HAS REFERRED TO OUR OFFICE YOUR LETTER OF OCTOBER 8, 1968, REQUESTING RECONSIDERATION OF THE BACK PAY CLAIM OF MR. WILLIAM CLAUDE DAVIS, A POSTAL EMPLOYEE.

MR. DAVIS WAS SEPARATED FROM THE POSTAL SERVICE ON MARCH 23, 1963, AND AFTER AN APPEAL OF HIS DISMISSAL TO THE CIVIL SERVICE COMMISSION, THE COMMISSION ORDERED HIS RESTORATION TO DUTY WHICH WAS ACCOMPLISHED ON OCTOBER 2, 1965. HE WAS GRANTED BACK PAY UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652 (B) (1) WHICH PROVIDED AS FOLLOWS:

"ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) OF THIS SECTION WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.'

YOU ARE OF THE OPINION THAT THE ABOVE-CITED ACT IS NOT APPLICABLE IN MR. DAVIS' CASE SINCE HE WAS NOT RESTORED TO DUTY AS THE RESULT OF A DETERMINATION BY A COURT THAT HAD JURISDICTION OF THE MATTER. THERE IS NO REQUIREMENT IN THE STATUTE JUST QUOTED THAT THE RESTORATION TO DUTY BE ORDERED BY A COURT. THE STATUTE MERELY REQUIRES THAT AFTER AN "APPEAL TO PROPER AUTHORITY" IF THE EMPLOYEE IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION FOR THE PERIOD OF REMOVAL AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL. OUR VIEW IS THAT MR. DAVIS' APPEAL TO THE COMMISSION REGARDING HIS SEPARATION PROPERLY MAY BE REGARDED AS AN "APPEAL TO PROPER AUTHORITY" AS THOSE WORDS ARE USED IN THE ACT. SEE 34 COMP. GEN. 478. THE STATUTE LIMITED THE BACK PAY RATE TO THE "RATE RECEIVED ON THE DATE OF SUCH REMOVAL.' PAYMENT HAS BEEN MADE TO HIM ON THAT BASIS. THE STATUTE ALSO PROVIDED THAT FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE THE EMPLOYEE SHALL BE DEEMED TO HAVE RENDERED SERVICE DURING THE PERIOD OF SEPARATION. THEREFORE, MR. DAVIS WOULD NOT BE ENTITLED TO THE ACCUMULATION OF ANNUAL OR SICK LEAVE DURING THE PERIOD OF HIS SEPARATION.

IN YOUR LETTER YOU EXPRESS THE OPINION THAT THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, APPROVED MARCH 30, 1966, 80 STAT. 94, APPLIES IN THIS MATTER. SECTION 3, THEREOF, 80 STAT. 95, READS IN PART:

"EACH CIVILIAN OFFICER OR EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND, ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION * * *.' WE QUOTE AS FURTHER EXPLANATION THE REMARKS OF MR. JOHN W. MACY, JR., CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, CONTAINED IN HIS REPORT ON H.R. 1647, WHICH BECAME PUBLIC LAW 89-380, IN S.REPORT NO. 1062, DATED MARCH 10, 1966. THESE REMARKS ARE IN CLARIFICATION OF THE STATUTORY LANGUAGE QUOTED ABOVE AND READ:

"IT LIMITS COVERAGE TO UNJUSTIFIED OR UNWARRANTED ACTIONS TAKEN ON OR AFTER THE DATE OF ENACTMENT, EXCEPT FOR (1) TIMELY EMPLOYEE APPEALS NOT YET DECIDED AT THE TIME OF ENACTMENT, AND (2) PRIOR ACTIONS REVIEWED AT AGENCY DISCRETION AND CORRECTED ON WHICH THE DECISION FAVORABLE TO THE EMPLOYEE IS MADE ON OR AFTER THE DATE OF ENACTMENT, WHETHER OR NOT THE REVIEW WAS BEGUN BEFORE ENACTMENT. * * *"

SINCE MR. DAVIS' SEPARATION TOOK PLACE IN 1963 AND HE WAS RESTORED IN 1965, OFFICIAL ACTION IN HIS CASE WAS COMPLETED PRIOR TO ENACTMENT OF PUBLIC LAW 89-380, I.E., MARCH 30, 1966. IT IS EVIDENT FROM THE FOREGOING THAT SAID LAW HAS NO APPLICATION IN MR. DAVIS' CASE.

IN VIEW OF THE FOREGOING, THE PREVIOUS ACTION TAKEN IN OUR OFFICE SETTLEMENT OF DECEMBER 13, 1965, IS SUSTAINED.

GAO Contacts

Office of Public Affairs