B-124176, JUN. 27, 1955

B-124176, JUN. 27, 1955

TO MR. CHARLES KUSHIN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1955, REGARDING YOUR CLAIM FOR COMPENSATION COVERING A PERIOD OF YOUR SUSPENSION FROM DUTY.

YOUR LETTER, TOGETHER WITH ATTACHMENTS, SHOWS THAT ON MARCH 12, 1954, YOU WERE INDICTED FOR ACCEPTING A GRATUITY OF $3.42 WHILE EMPLOYED AS A CLOTHING INSPECTOR BY THE QUARTERMASTER INSPECTION SERVICE COMMAND; THAT ON MARCH 18, 1954, YOU WERE SUSPENDED FROM YOUR POSITION PENDING ADJUDICATION OF THE LEGAL ACTION AGAINST YOU; AND THAT WHILE STILL UNDER SUSPENSION YOU WERE REACHED BY REDUCTION IN FORCE ACTION EFFECTIVE AUGUST 10, 1954. BY LETTER OF MAY 31, 1955, CONGRESSMAN PAUL A. FINO INDICATED TO US THAT THE INDICTMENT AGAINST YOU WAS DISMISSED ON NOVEMBER 1, 1954. YOU CONTEND THAT SINCE THE INDICTMENT HAS BEEN QUASHED, YOU ARE ENTITLED TO BE COMPENSATED FOR THE PERIOD OF SUSPENSION.

SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC. 6. (A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING. ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL (1) HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM; (2) BE FURNISHED WITH A COPY OF SUCH CHARGES; (3) BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND (4) BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION ON SUCH ANSWER. * * *

"/B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) 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 * * *.'

YOU WILL NOTE THAT THE ABOVE-QUOTED STATUTE IS APPLICABLE ONLY TO PERSONS IN THE "CLASSIFIED CIVIL SERVICE.' UNDER 5 U.S.C. 658, "CLASSIFIED CIVIL SERVICE" AS THAT EXPRESSION OCCURS IN ACTS OF CONGRESS INCLUDES ALL PERSONS WITH COMPETITIVE STATUS. OUR DECISION OF JULY 19, 1949, 29 COMP. GEN. 29, 31, STATES THAT "IF AN EMPLOYEE IS TO BE REGARDED AS BEING IN THE "CLASSIFIED CIVIL SERVICE," HE NOT ONLY MUST HAVE A COMPETITIVE STATUS BUT HE ALSO MUST BE OCCUPYING A POSITION IN THE COMPETITIVE SERVICE.' SEE ALSO BAILEY V. RICHARDSON, 182 F.2D 46, AND NADELHAFT V. UNITED STATES, COURT OF CLAIMS NO. 209 53, JUNE 7, 1955.

THE NOTIFICATION OF PERSONNEL ACTION DATED AUGUST 9, 1954, YOUR REFERENCE G, SHOWS YOUR STATUS ,NONCOMPETITIVE STATUS," SUGGESTING, THEREFORE, THAT YOU WERE NOT IN THE "CLASSIFIED CIVIL VICE.' IF THAT BE CORRECT, YOU WOULD NOT COME WITHIN THE TERMS OF THE ACT AUTHORIZING PAYMENT FOR THE PERIOD OF SUSPENSION. FURTHERMORE, EVEN IF YOU COULD QUALIFY AS AN EMPLOYEE IN THE ,CLASSIFIED CIVIL SERVICE" NO ACTION COULD BE TAKEN TO PAY YOU FOR THE PERIOD OF SUSPENSION BECAUSE SECTION 6 (B) (1) OF THE CITED ACT ESTABLISHES AS A PREREQUISITE TO SUCH PAYMENT, THAT YOU BE "REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED.' THE RECORD YOU SUBMITTED DOES NOT SHOW THAT YOU WERE RESTORED TO DUTY ON THE NECESSARY GROUNDS BY ANY ORDER EITHER FROM THE DEPARTMENT OF THE ARMY OR THE CIVIL SERVICE COMMISSION, THE TWO AGENCIES HAVING JURISDICTION OVER THE MATTER.

THE DECISIONS OF OUR OFFICE CONSISTENTLY HAVE HELD THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF SALARY TO AN EMPLOYEE FOR A PERIOD OF SUSPENSION DURING WHICH NO SERVICES ARE RENDERED, IRRESPECTIVE OF WHETHER THE EMPLOYEE IS EXONERATED OF THE CHARGES WHICH RESULTED IN HIS SUSPENSION. THE PREMISE UPON WHICH THAT RULE IS BASED IS THAT THE PAYMENT OF COMPENSATION TO AN EMPLOYEE NECESSARILY CONTEMPLATES THE RENDITION OF SERVICE BY HIM, AND APPROPRIATIONS MADE BY THE CONGRESS GENERALLY ARE NOT AVAILABLE FOR THE PAYMENT OF SALARY FOR A PERIOD DURING WHICH NO SERVICES ARE RENDERED, EXCEPT TO THE EXTENT THAT LEAVE OF ABSENCE WITH PAY IS AUTHORIZED. THE ACT OF JUNE 10, 1948, ABOVE QUOTED, CONSTITUTES AN EXCEPTION TO THAT RULE BUT, AS HEREINABOVE INDICATED, THE CONDITIONS OF THAT STATUTE HAVE NOT BEEN MET IN YOUR CASE.

UPON THE RECORD BEFORE US, THEREFORE, NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM.