B-142339, MAR. 30, 1960

B-142339, MAR. 30, 1960

TO THE POSTMASTER GENERAL:

YOUR LETTER OF MARCH 18, 1960, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF PAYMENT OF BACK SALARY TO A FORMER EMPLOYEE OF THE POST OFFICE DEPARTMENT UNDER THE FOLLOWING STATED FACTS AND CIRCUMSTANCES.

THE FORMER EMPLOYEE WAS SUSPENDED FROM HIS POSITION EFFECTIVE DECEMBER 19, 1953, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10450, AND ULTIMATELY ORDERED REMOVED FROM THE SERVICE. AFTER THE DECISION IN COLE V. YOUNG, 351 U.S. 536, THE FORMER EMPLOYEE, HAVING OCCUPIED A NON- SENSITIVE POSITION, APPLIED FOR REINSTATEMENT AND WAS SO RESTORED TO DUTY EFFECTIVE JUNE 30, 1959. HE RETIRED FROM THE POSTAL SERVICE ON AUGUST 31, 1959.

SINCE THE FORMER EMPLOYEE CONCEDES HE WAS A MEMBER OF THE COMMUNIST PARTY FROM 1939 TO NOVEMBER 1950, THE PRIMARY QUESTION FOR DETERMINATION IS THE APPLICATION OF APPROPRIATION RESTRICTIONS CONTAINED IN THE APPROPRIATION ACTS FOR THE POST OFFICE DEPARTMENT FOR THE YEARS 1942 TO 1950, INCLUSIVE, TO THE EFFECT THAT SUCH APPROPRIATIONS COULD NOT BE USED TO PAY THE SALARY OF ANY PERSON WHO IS A MEMBER OF AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE UNITED STATES BY FORCE AND VIOLENCE.

YOU REFER TO THE CASES OF KUTCHER V. GRAY, 199 F.2D 783, AND KUTCHER V. HIGLEY, 235 F.2D 505, IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WHICH CONTAIN CERTAIN STATEMENTS ABOUT THE MEMBERSHIP OF THE GOVERNMENT EMPLOYEE THERE INVOLVED IN A SO-CALLED SUBVERSIVE ORGANIZATION. WE NOTE THAT WHILE KUTCHER WAS ORDERED RESTORED TO DUTY BY THE COURT IN THE TWO INSTANCES OF REMOVAL FROM THE SERVICE, NEVERTHELESS, THE COURT'S ACTION PRIMARILY WAS BASED ON PROCEDURAL GROUNDS.

YOU ALSO REFER TO A RECENT CASE IN THE COURT OF CLAIMS, AND SAY THAT YOU HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF JUSTICE THAT SUCH CASE, WHICH INVOLVED A CLAIM FOR BACK SALARY OF AN EMPLOYEE WHO IN THE ADMINISTRATIVE PROCEEDINGS ADMITTED MEMBERSHIP IN THE COMMUNIST PARTY--- AN ALLEGATION DENIED IN THE PETITION--- WAS SETTLED AND PAID WITH THE CONCURRENCE OF OUR OFFICE, THERE HAVING BEEN NO OFFSET OF THE SALARY PAID TO SUCH EMPLOYEE BECAUSE OF APPROPRIATION RESTRICTIONS SIMILAR TO THOSE HERE INVOLVED. IN THAT CASE WE HAD PREVIOUSLY DENIED THE CLAIM OF THE EMPLOYEE FOR REFUND OF BACK PAY AND SALARY WHICH HAD BEEN APPLIED IN LIQUIDATION OF HIS INDEBTEDNESS TO THE GOVERNMENT BECAUSE OF PRIOR SALARY PAYMENTS IN VIOLATION OF APPROPRIATION RESTRICTIONS PROHIBITING PAYMENT OF SALARY TO ANY PERSON WHO ADVOCATES OR IS A MEMBER OF AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE UNITED STATES BY FORCE AND VIOLENCE. WHEN THAT EMPLOYEE FILED SUIT IN THE COURT OF CLAIMS THE DEPARTMENT OF JUSTICE REQUESTED OUR OFFICE FOR A REPORT IN THE MATTER. PURSUANT TO SUCH REQUEST WE ADDRESSED A LETTER TO THE ATTORNEY GENERAL AND FURNISHED COPIES OF THE CLAIMS SETTLEMENT WHICH DISALLOWED THE CLAIM AS WELL AS A COPY OF OUR DECISION TO THE EMPLOYEE SUSTAINING SUCH DISALLOWANCE. OUR LETTER TO THE ATTORNEY GENERAL CONTAINED NO SPECIFIC RECOMMENDATION, SINCE THE MATERIAL ENCLOSED SUFFICIENTLY SET FORTH OUR POSITION. SUBSEQUENTLY, WE WERE ADVISED BY THE DEPARTMENT OF JUSTICE THAT THE EVIDENCE TO ESTABLISH A DEFENSE TO THE SUIT WAS INSUFFICIENT AND THAT THE GOVERNMENT WOULD STIPULATE TO A JUDGMENT FOR PLAINTIFF AND REQUEST THAT FURTHER DEDUCTION FROM THE PLAINTIFF'S PAY BE DISCONTINUED. SUCH A JUDGMENT IN FAVOR OF THE PLAINTIFF WAS ENTERED BY THE COURT OF CLAIMS ON OCTOBER 23, 1959.

IN A PRIOR CASE IN THE COURT OF CLAIMS CONCERNING SOMEWHAT THE SAME SITUATION (KUTCHER V. UNITED STATES), WE INFORMALLY ADVISED THE DEPARTMENT OF JUSTICE THAT WE HAD NO OBJECTION TO STIPULATING JUDGMENT IN THAT CASE AFTER OUR BEING MADE AWARE OF THE FACTORS LEADING TO THE DETERMINATION OF THAT DEPARTMENT TO COMPROMISE THE CASE RATHER THAN PROCEED TO A TRIAL ON THE MERITS. PERHAPS, THAT IS THE CASE WHICH THE DEPARTMENT OF JUSTICE HAD IN MIND WHEN THEY ADVISED YOU IN THE MATTER.

WE HAVE INFORMATION IN OUR FILES THAT THE VIEW OF THE DEPARTMENT OF JUSTICE IS THAT ONE OF THE BASIC PRINCIPLES OF THE COMMUNIST PARTY HAS BEEN TO ADVOCATE THE OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE AND VIOLENCE. IN VIEW THEREOF AND SINCE THE APPROPRIATION RESTRICTIONS ARE SPECIFICALLY DIRECTED AGAINST THE PAYMENT OF SALARY TO A PERSON WHO WAS A MEMBER OF SUCH AN ORGANIZATION WHILE EMPLOYED BY THE POST OFFICE DEPARTMENT FROM 1942 TO NOVEMBER 1950, WE HAVE NO ALTERNATIVE, IN THE ABSENCE OF ANY AUTHORITATIVE COURT CASE TO THE CONTRARY, BUT TO HOLD THAT SALARY PAYMENTS DURING THAT PERIOD WERE ILLEGAL AND SHOULD BE RECOVERED FROM OTHER AMOUNTS WHICH MAY BE DUE THE FORMER EMPLOYEE FROM THE UNITED STATES.