B-111524, OCT 27, 1952

B-111524, OCT 27, 1952

PRECIS-UNAVAILABLE

MR. FRED PINKSTON:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1952, ACKNOWLEDGED AUGUST 20, REQUESTING RECONSIDERATION OF YOUR CLAIM, DISALLOWED BY SETTLEMENT DATED MAY 3, 1949, FOR THE DIFFERENCE IN COMPENSATION BETWEEN THAT PAID YOU AT THE PHILADELPHIA NAVAL BASE DURING THE PERIOD JANUARY 2, 1946, TO MAY 14, 1947, AS A JOINER, AND THE COMPENSATION ALLEGED TO BE DUE YOU UNDER THE RATING OF LEADINGMAN JOINER, FROM WHICH RATING YOU WERE DEMOTED FOR SAID PERIOD.

THE RECORD SHOWS THAT YOU WERE RESTORED BY THE DEPARTMENT OF THE NAVY TO THE HIGHER RATING AS A RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION BY A NUMBER OF PREFERENCE - ELIGIBLE EMPLOYEES SIMILARLY AFFECTED, IN CONNECTION WITH WHICH IT WAS HELD BY THE COMMISSION THAT CERTAIN PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, HAD NOT BEEN COMPLIED WITH IN EFFECTING THE DEMOTIONS INCIDENT TO A READJUSTMENT OF THE NUMBER OF SUPERVISORS NECESSITATED BY THE REDUCTION OF ACTIVITIES AT THE NAVAL BASE. THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM WAS FOR THE REASON THAT THE DECISIONS OF THIS OFFICE HAVE HELD THAT A RESTORATION FOLLOWING AN APPEAL UNDER THE ABOVE- REFERRED-TO SECTION 14 IS EFFECTIVE ONLY FROM THE DATE OF RESTORATION AND CANNOT BE CONSIDERED AS AUTHORITY FOR RETROACTIVE PAY. 25 COMP. GEN. 620.

IT APPEARS THAT YOUR REQUEST FOR RECONSIDERATION IS PREDICATED UPON CERTAIN JUDGMENTS ENTERED BY THE UNITED STATES COURT OF CLAIMS IN CASES SIMILAR TO YOURS. WITH REGARD THERETO, IT MAY BE POINTED OUT THAT WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN CONNECTION WITH MATTERS COMING BEFORE THIS OFFICE, SUCH DECISIONS ARE NOT BINDING UPON THE OFFICE. 14 COMP. GEN. 648; 31 ID 73. ALSO, THERE IS AN IMPORTANT DISTINCTION BETWEEN SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE AND JUDGMENTS OF THE COURT OF CLAIMS, IN THAT THE FORMER MUST BE BASED UPON THE EXISTENCE OF AN APPROPRIATION WHICH MAY BE CONSIDERED AS HAVING BEEN OBLIGATED BY THE CIRCUMSTANCES GIVING RISE TO THE CLAIM, WHEREAS THE LATTER, BEING PAYABLE FROM APPROPRIATIONS LATER MADE SPECIFICALLY FOR THEIR PAYMENT, ARE RENDERED WITHOUT REGARD TO WHETHER THERE IS AN AVAILABLE APPROPRIATION FROM WHICH THE CLAIM MIGHT HAVE BEEN PAID ADMINISTRATIVELY OR BY SETTLEMENT OF THE ACCOUNTING OFFICERS. CF. GIBNEY V. UNITED STATES, 114 C. CLS. 38; 31 COMP. GEN. 73. HENCE, IT CAN BE SEEN THAT THE GENERAL ACCOUNTING OFFICE, IN THE SETTLEMENT OF CLAIMS, MUST NOT ONLY LOOK TO THE LEGAL MERITS OF THE CLAIM BUT MUST DETERMINE WHETHER AN APPROPRIATION IS AVAILABLE FOR ITS PAYMENT.

SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, UNDER THE PROVISIONS OF WHICH THE COURT OF CLAIMS HAS GRANTED THE JUDGMENTS REFERRED TO, GIVES SPECIAL PREFERENCE TO VETERANS IN THE WAY OF PRIOR NOTICE AND THE RIGHT OF APPEAL TO THE CIVIL SERVICE COMMISSION IN CASES OF DISCHARGE, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH WITHOUT PAY, REDUCTION IN RANK OR COMPENSATION, OR DEBARMENT FROM FUTURE APPOINTMENT. HOWEVER, THE STATUTE CONTAINS NO PROVISIONS, EXPRESS OR IMPLIED, WHICH WOULD SERVE TO OBLIGATE A SALARY APPROPRIATION FOR COMPENSATION LOST BY AN EMPLOYEE WHO IS DISCHARGED, SUSPENDED, FURLOUGHED, OR REDUCED IN RANK OR COMPENSATION, AND WHO THEREAFTER, AS A CONSEQUENCE OF APPEAL, IS REINSTATED OR RESTORED TO HIS FORMER POSITION, RANK, OR RATE OF COMPENSATION. 25 COMP. GEN. 620; 28 ID. 489.

IN VIEW OF THE FOREGOING, I MUST ADVISE YOU THAT THE SETTLEMENT OF MAY 3, 1949, WHICH DISALLOWED YOUR CLAIM, IS CORRECT, AND MUST BE SUSTAINED.