B-116695, DECEMBER 29, 1954, 34 COMP. GEN. 303

B-116695: Dec 29, 1954

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1948 THE REFUSAL OF AN AGENCY OR DEPARTMENT TO REEMPLOY A PERSON WHO WAS INVOLUNTARILY SEPARATED FROM AN AGENCY TO WHICH HE TRANSFERRED WITH REEMPLOYMENT RIGHTS IS TANTAMOUNT TO A REMOVAL OR SUSPENSION WITHOUT PAY AS CONTEMPLATED BY THE ACT OF AUGUST 24. WAS RESTORED TO SUCH POSITION PURSUANT TO AN ORDER OF THE CIVIL SERVICE COMMISSION IS ENTITLED TO BACK PAY UNDER THE ACT OF AUGUST 24. FOR THE PERIOD OF SEPARATION AT THE RATE HE WOULD HAVE BEEN RECEIVING IN THE FORMER POSITION AS OF THE DATE HIS REEMPLOYMENT RIGHTS SHOULD HAVE BEEN HONORED. AN EMPLOYEE WHO WAS ORDERED RESTORED TO HIS FORMER AGENCY FROM WHICH HE TRANSFERRED WITH REEMPLOYMENT RIGHTS FOLLOWING SUCCESSFUL APPEAL TO THE CIVIL SERVICE COMMISSION IS ENTITLED TO CREDIT FOR ANNUAL LEAVE WHICH WOULD HAVE BEEN TRANSFERRED ON THE DATE HIS FORMER AGENCY SHOULD HAVE HONORED HIS REEMPLOYMENT RIGHTS AND HE BEGINS TO ACCRUE LEAVE ON THE DATE OF ACTUAL RESTORATION TO DUTY.

B-116695, DECEMBER 29, 1954, 34 COMP. GEN. 303

OFFICERS AND EMPLOYEES - SEPARATION FROM SERVICE - FAILURE OF AGENCY TO HONOR EMPLOYEES' REEMPLOYMENT RIGHTS - APPLICABILITY OF ACT OF AUGUST 24, 1912, AS AMENDED BY ACT OF JUNE 10, 1948 THE REFUSAL OF AN AGENCY OR DEPARTMENT TO REEMPLOY A PERSON WHO WAS INVOLUNTARILY SEPARATED FROM AN AGENCY TO WHICH HE TRANSFERRED WITH REEMPLOYMENT RIGHTS IS TANTAMOUNT TO A REMOVAL OR SUSPENSION WITHOUT PAY AS CONTEMPLATED BY THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, AND THE SUBSEQUENT REEMPLOYMENT OF THE EMPLOYEE-- DIRECTED BY THE CIVIL SERVICE COMMISSION ON THE GROUNDS OF VIOLATION OF HIS REEMPLOYMENT RIGHTS--- FULFILLS THE REQUIREMENTS OF THE 1912 STATUTE RESPECTING RESTORATION SO AS TO ENTITLE THE EMPLOYEE TO BACK PAY FOR THE PERIOD OF SEPARATION. AN EMPLOYEE WHO, AFTER HAVING BEEN DENIED REEMPLOYMENT IN HIS FORMER POSITION FROM WHICH HE TRANSFERRED WITH REEMPLOYMENT RIGHTS, WAS RESTORED TO SUCH POSITION PURSUANT TO AN ORDER OF THE CIVIL SERVICE COMMISSION IS ENTITLED TO BACK PAY UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, FOR THE PERIOD OF SEPARATION AT THE RATE HE WOULD HAVE BEEN RECEIVING IN THE FORMER POSITION AS OF THE DATE HIS REEMPLOYMENT RIGHTS SHOULD HAVE BEEN HONORED, INCLUDING A LEGISLATIVE INCREASE AND A PERIODIC STEP INCREASE BASED UPON THE PERIOD OF TRANSFER SERVICE. ALTHOUGH NO ADDITIONAL LEAVE ACCRUES DURING PERIODS OF REMOVAL OR SUSPENSION, AN EMPLOYEE WHO WAS ORDERED RESTORED TO HIS FORMER AGENCY FROM WHICH HE TRANSFERRED WITH REEMPLOYMENT RIGHTS FOLLOWING SUCCESSFUL APPEAL TO THE CIVIL SERVICE COMMISSION IS ENTITLED TO CREDIT FOR ANNUAL LEAVE WHICH WOULD HAVE BEEN TRANSFERRED ON THE DATE HIS FORMER AGENCY SHOULD HAVE HONORED HIS REEMPLOYMENT RIGHTS AND HE BEGINS TO ACCRUE LEAVE ON THE DATE OF ACTUAL RESTORATION TO DUTY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE ATTORNEY GENERAL, DECEMBER 29, 1954:

REFERENCE IS MADE TO LETTER OF NOVEMBER 12, 1954, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, SUBMITTING FOR DECISION CERTAIN QUESTIONS CONCERNING THE PAYMENT OF COMPENSATION AND THE ADJUSTMENT OF LEAVE CREDITS IN THE ACCOUNT OF MR. LEO A. ROTH INCIDENT TO HIS RESTORATION TO DUTY IN THE DEPARTMENT OF JUSTICE ON NOVEMBER 8, 1954.

BEFORE ANSWER THE QUESTIONS PRESENTED IN THE LETTER OF NOVEMBER 12, A BRIEF SUMMARY OF THE FACTS INVOLVED APPEARS WARRANTED.

THE FILE BEFORE THIS OFFICE DISCLOSES THAT MR. ROTH TRANSFERRED EFFECTIVE JUNE 1, 1951, FROM GRADE GS-14, $9,200 PER ANNUM IN THE DEPARTMENT OF JUSTICE TO GRADE GS-15, $10,000 PER ANNUM IN THE OFFICE OF PRICE STABILIZATION, WITH REEMPLOYMENT RIGHTS. WHILE SO EMPLOYED, HIS SALARY WAS INCREASED TO $10,800 PER ANNUM PURSUANT TO THE ACT OF OCTOBER 7, 1951. SUBSEQUENTLY, HIS SALARY WAS FURTHER INCREASED TO $11,050, BY VIRTUE OF A WITHIN-GRADE SALARY ADVANCEMENT IN GRADE GS 15. ON MARCH 5, 1953, HE RECEIVED A REDUCTION IN FORCE NOTICE WHICH RECITED THAT HIS LAST DAY OF ACTIVE DUTY WOULD BE APRIL 4, 1953, AND THEREAFTER HE WOULD BE CARRIED IN AN ANNUAL LEAVE OR LEAVE/WITHOUT PAY STATUS UNTIL APRIL 30, 1953, THE EXPIRATION DATE OF OPS. ON MARCH 6, 1953, THE DAY FOLLOWING RECEIPT OF THE REDUCTION IN FORCE NOTICE, MR. ROTH APPLIED FOR REEMPLOYMENT IN THE DEPARTMENT OF JUSTICE BUT THIS WAS REFUSED. CONSEQUENTLY, HE REMAINED IN A WORK AND DUTY STATUS WITH OPS THROUGH APRIL 4, 1953, AND THEREAFTER WAS CARRIED IN AN ANNUAL LEAVE STATUS UNTIL APRIL 30, 1953, WHEN HE WAS SEPARATED AND PAID A LUMP-SUM PAYMENT FOR THE BALANCE OF HIS ANNUAL LEAVE, 612 HOURS. AS A RESULT OF HIS SUCCESSFUL APPEAL TO THE CIVIL SERVICE COMMISSION HE WAS ORDERED TO BE REEMPLOYED IN HIS FORMER ATTORNEY POSITION, GRADE GS-14, IN THE DEPARTMENT OF JUSTICE, AND WAS SO RESTORED AT THE FOURTH STEP OF THAT GRADE ($10,200) EFFECTIVE JUNE 22, 1953. LATER, EFFECTIVE JULY 31, 1953, MR. ROTH WAS SEPARATED FROM THE SERVICE, AND PURSUANT TO A DIRECTIVE FROM THE CIVIL SERVICE COMMISSION AND IN CONSONANCE WITH THE DECISION OF THE UNITED STATE COURT OF APPEALS IN HIS CASE, HE WAS RESTORED TO DUTY NOVEMBER 8, 1954.

THE CLAIMANT'S RIGHT TO COMPENSATION FOR THE PERIODS OF SEPARATION FROM THE SERVICE IS FOR DETERMINATION UNDER THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. CODE 652. THAT STATUTE PROVIDES, IN EFFECT, FOR THE PAYMENT OF COMPENSATION TO AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE WHO HAS BEEN REMOVED OR SUSPENDED FROM THE SERVICE AND WHO HAS BEEN RESTORED THERETO ON THE BASIS THAT SUCH REMOVAL OR SUSPENSION WAS UNWARRANTED OR UNJUSTIFIED. ALSO, THERE IS FOR CONSIDERATION SECTION 8.114 (C) OF THE CIVIL SERVICE COMMISSION REGULATIONS WHICH WERE IN EFFECT AT THE DATE OF MR. ROTH'S NOTICE OF REDUCTION IN FORCE FROM OPS. THAT SECTION PROVIDED, IN EFFECT, THAT ANY EMPLOYEE GRANTED REEMPLOYMENT RIGHTS WHO IS SUBSEQUENTLY INVOLUNTARILY SEPARATED SHALL BE REEMPLOYED WITHIN THIRTY DAYS OF HIS APPLICATION BY THE AGENCY IN WHICH HE WAS GRANTED REEMPLOYMENT RIGHTS, AND AT THE SAME GRADE OR LEVEL AND IN THE SAME GEOGRAPHICAL AREA AS THE POSITION WHICH HE LAST HELD ON A PERMANENT BASIS.

WHILE IN THE INSTANT CASE THE ACTUAL SEPARATION FROM THE SERVICE WAS ACCOMPLISHED BY A PERSONNEL ACTION PROCESSED BY OPS--- WHICH CLEARLY APPEARS TO HAVE BEEN A PROPER ACTION BY THAT AGENCY--- THE PRIMARY CAUSE OF MR. ROTH'S SEPARATION FROM THE SERVICE AND LOSS OF COMPENSATION WAS THE REFUSAL OF THE DEPARTMENT OF JUSTICE TO RECOGNIZE HIS REEMPLOYMENT RIGHTS IN THAT DEPARTMENT AS REQUIRED BY THE EXISTING CIVIL SERVICE REGULATIONS. SUCH REFUSAL WAS TANTAMOUNT TO A REMOVAL OR SUSPENSION WITHOUT PAY AS CONTEMPLATED BY THE 1912 STATUTE, AS AMENDED, AND THE SUBSEQUENT REEMPLOYMENT OF MR. ROTH BY THE DEPARTMENT OF JUSTICE EFFECTIVE JUNE 22, 1953--- AS DIRECTED BY THE CIVIL SERVICE COMMISSION ON THE GROUNDS OF A VIOLATION OF HIS REEMPLOYMENT RIGHTS--- FULFILLED THE REQUIREMENTS OF THE 1912 STATUTE RESPECTING RESTORATION TO DUTY ON THE BASIS THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED.

ACCORDINGLY, IT SEEMS CLEAR THAT THE CLAIMANT IS ENTITLED TO BACK PAY UNDER THE PROVISIONS OF THE 1912 STATUTE, AS AMENDED, FOR THE PERIOD OF HIS SEPARATION FROM THE SERVICE UNTIL JUNE 22, 1953, THE DATE OF HIS REEMPLOYMENT IN THE DEPARTMENT OF JUSTICE. IT IS NOTED THAT THE BEGINNING DATE OF HIS CLAIM IS ASSERTED BY MR. ROTH AS APRIL 6, 1953--- THE LAST DAY OF THE THIRTY-DAY PERIOD PRESCRIBED BY THE CIVIL SERVICE REGULATIONS WITHIN WHICH REEMPLOYMENT RIGHTS MUST BE GRANTED. AS STATED ABOVE, MR. ROTH'S APPLICATION FOR REEMPLOYMENT WAS DATED MARCH 6, 1953, AND THE 30- DAY PERIOD EXPIRED ON APRIL 5, 1953. HOWEVER, AT THAT DATE HE WAS STILL ON THE ROLLS OF OPS, BEING CARRIED IN AN ANNUAL LEAVE STATUS, AND HE WAS NOT SEPARATED FROM THAT AGENCY UNTIL APRIL 30, 1953. THE CIVIL SERVICE REGULATIONS HERE INVOLVED PROVIDE IN CHAPTER Z1, PART 8, SECTION 8.206, IN PERTINENT PART, AS FOLLOWS:

SEC. 8.206 CONDITIONS UNDER WHICH EMPLOYEES MAY APPLY FOR REEMPLOYMENT.

(A) AN EMPLOYEE SHALL BE ENTITLED TO REEMPLOYMENT BY THE ORIGINAL AGENCY IN WHICH HE WAS GRANTED REEMPLOYMENT RIGHTS WHEN HE IS:

(1) INVOLUNTARILY SEPARATED WITHOUT CAUSE SUCH AS WOULD REFLECT ON HIS SUITABILITY FOR REEMPLOYMENT; * * *

THEREFORE, UNDER THE PROVISIONS OF THE 1912 STATUTE, AS AMENDED, AND THE QUOTED CIVIL SERVICE COMMISSION REGULATION, MR. ROTH IS ENTITLED TO BACK PAY FOR THE PERIOD MAY 1, 1953, THROUGH JUNE 21, 1953, WITH NO ADJUSTMENT OF COMPENSATION OR LEAVE REQUIRED FOR THE PERIOD APRIL 5 THROUGH APRIL 30, 1953. ALSO, IN VIEW OF HIS RESTORATION TO DUTY EFFECTIVE NOVEMBER 8, 1954, PURSUANT TO THE DIRECTIVE OF THE CIVIL SERVICE COMMISSION RESPECTING HIS SEPARATION EFFECTIVE JULY 31, 1953, HE IS ENTITLED TO BACK PAY UNDER THE 1912 STATUTE, AS AMENDED, FOR THE PERIOD AUGUST 1, 1953, THROUGH NOVEMBER 5, 1954.

WITH RESPECT TO THE PARTICULAR SALARY RATE TO BE USED IN COMPUTING MR. ROTH'S PAY UNDER THE 1912 STATUTE, AS AMENDED, THE CIVIL SERVICE REGULATIONS, CHAPTER Z1, PART 25, SECTION 25.11 (E) (5/--- DEFINING CREDITABLE SERVICE IN THE COMPUTATION OF WAITING PERIODS FOR PERIODIC STEP -INCREASES--- SPECIFICALLY ENUMERATES "SERVICE IN ANY OTHER FEDERAL DEPARTMENT * * * WHERE THE EMPLOYEE EXERCISES REEMPLOYMENT RIGHTS IN ACCORDANCE WITH THE PROVISIONS OF PART 8 OF THIS CHAPTER.' AS MR. ROTH HELD A POSITION IN GRADE GS-14, $9,200 PER ANNUM (SUBSEQUENTLY INCREASED TO $10,000 PER ANNUM BY THE ACT OF OCTOBER 7, 1951), HIS SALARY RATE AT MAY 1, 1953, IS TO BE COMPUTED ON THE SAME BASIS AS IF HE HAD REMAINED AT THE DEPARTMENT OF JUSTICE UNTIL THAT DATE AND SHOULD INCLUDE ANY PERIODIC STEP-INCREASES TO WHICH HE OTHERWISE WAS ENTITLED AS OF THAT DATE. IT IS STATED IN YOUR LETTER THAT BY VIRTUE OF A PERIODIC INCREASE HIS SALARY WOULD HAVE BEEN INCREASED TO $10,200 PER ANNUM EFFECTIVE OCTOBER 26, 1952. SINCE $10,200 PER ANNUM IS THE SALARY RATE TO WHICH HE WOULD HAVE BEEN ENTITLED ON MAY 1, 1953, SUCH RATE IS TO BE USED IN COMPUTING HIS BACK PAY FOR THE TWO PERIODS INVOLVED.

CONCERNING THE CURRENT SALARY RATE TO BE PAID MR. ROTH, YOU MAY BE ADVISED THAT SINCE AS STATED IN YOUR LETTER HE WOULD HAVE BEEN ENTITLED TO A FURTHER PERIODIC STEP-INCREASE TO $10,400 EFFECTIVE APRIL 25, 1954, THAT RATE SHOULD BE USED IN FIXING HIS CURRENT SALARY EFFECTIVE NOVEMBER 8, 1954. SEE 28 COMP. GEN. 563.

RESPECTING THE ADJUSTMENT OF ANNUAL LEAVE CREDIT TO MR. ROTH'S ACCOUNT, THE RECORD DISCLOSES THAT AT THE END OF THE 1952 LEAVE YEAR HE HAD TO HIS CREDIT 720 HOURS OF ACCUMULATED ANNUAL LEAVE. DURING THE PERIOD OF HIS EMPLOYMENT WITH OPS IN 1953, HE ACCRUED AN ADDITIONAL 54 HOURS AND HE USED 162 HOURS, LEAVING A NET BALANCE AT APRIL 30, 1953, OF 612 HOURS FOR WHICH HE RECEIVED A LUMP-SUM PAYMENT. AFTER HIS REEMPLOYMENT IN YOUR DEPARTMENT EFFECTIVE JUNE 22, 1953, HE REFUNDED AN AMOUNT EQUAL TO THE UNEXPIRED PORTION OF SUCH LEAVES, 324 HOURS, AND THAT LEAVE WAS CREDITED TO HIS ACCOUNT. DURING THE PERIOD OF HIS REEMPLOYMENT (40 DAYS), NO ADDITIONAL ANNUAL LEAVE WAS CREDITED TO MR. ROTH BECAUSE OF DOUBT IN YOUR DEPARTMENT AS TO HIS RIGHT TO ACCRUE ANNUAL LEAVE IN VIEW OF THE PROVISIONS OF SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, LIMITING ANNUAL LEAVE TO EMPLOYEES ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF 90 DAYS WITHOUT A BREAK IN SERVICE. CONSEQUENTLY, UPON HIS SEPARATION OF JULY 31, 1953, HE WAS PAID A LUMP-SUM PAYMENT FOR 324 HOURS ANNUAL LEAVE.

IN VIEW OF THE DETERMINATION ABOVE THAT THE SEPARATIONS FROM THE SERVICE ON APRIL 30, 1953, AND JULY 31, 1953, WERE UNWARRANTED OR UNJUSTIFIED WITHIN THE CONTEMPLATION OF THE 1912 STATUTE, AS AMENDED, IT FOLLOWS THAT THE LUMP-SUM PAYMENTS MADE TO MR. ROTH WERE ERRONEOUS AND HIS CURRENT LEAVE ACCOUNT SHOULD BE ADJUSTED TO REFLECT THE CREDIT OF ANNUAL LEAVE TO WHICH HE WOULD HAVE BEEN ENTITLED HAD SUCH ACTIONS NOT BEEN TAKEN. ACCORDINGLY, UPON MAKING PROPER REFUND HE MAY BE CREDITED WITH THE 612 HOURS ANNUAL LEAVE WHICH WOULD HAVE BEEN TRANSFERRED ON MAY 1, 1953. ALSO MAY BE GIVEN AN APPROPRIATE CREDIT FOR ANNUAL LEAVE FOR THE PERIOD OF ACTUAL EMPLOYMENT FROM JUNE 22, 1953, THROUGH JULY 31, 1953. SINCE THERE WAS NO PROPER SEPARATION FROM THE SERVICE ON APRIL 30, 1953, THE 90-DAY RULE CONTAINED IN SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 WOULD NOT APPLY. OF COURSE, SINCE UNDER THE PROVISIONS OF THE 1912 ACT, AS AMENDED, AN EMPLOYEE IS CONSIDERED TO HAVE RENDERED SERVICE DURING THE PERIOD OF HIS REMOVAL OR SUSPENSION EXCEPT FOR THE PURPOSE OF ACCRUING LEAVE, NO ADDITIONAL LEAVE ACCRUED TO MR. ROTH DURING THE PERIODS OF HIS SEPARATION AND THE ACCRUAL OF ANNUAL LEAVE BEGAN NOVEMBER 8, 1954, THE DATE OF HIS LATEST REEMPLOYMENT IN THE DEPARTMENT OF JUSTICE.

THE QUESTIONS PRESENTED IN YOUR LETTER ARE ANSWERED ACCORDINGLY.

THE VOUCHER TRANSMITTED WITH THE LETTER OF NOVEMBER 24, 1954, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, COVERING THE PERIOD AUGUST 1, 1953, TO NOVEMBER 6, 1954, MAY BE PROCESSED BY YOUR DEPARTMENT IN ACCORDANCE WITH THE FOREGOING DETERMINATIONS. ALSO, YOU ARE ADVISED THAT SETTLEMENT OF MR. ROTH'S CLAIM FOR THE PERIOD APRIL 6, 1953, THROUGH JUNE 21, 1953, WILL BE ISSUED BY THE CLAIMS DIVISION OF THIS OFFICE.