B-117119, DECEMBER 28, 1961, 41 COMP. GEN. 418

B-117119: Dec 28, 1961

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ETC. - NONSENSITIVE POSITION RESTORATIONS - WITHOUT RETURN TO DUTY - TERMINATION OF EMPLOYMENT STATUS A VETERANS PREFERENCE EMPLOYEE WHO WAS SEPARATED BY REDUCTION IN FORCE UPON TRANSFER OF THE FUNCTIONS OF HIS OFFICE TO ANOTHER GOVERNMENT AGENCY AND WHO WAS CONSTRUCTIVELY RESTORED TO DUTY BY THE SECOND AGENCY. PURSUANT TO THE ORDER OF A UNITED STATES DISTRICT COURT IS ENTITLED TO BACK PAY UNDER THE ACT OF AUGUST 24. PERIODIC AND STATUTORY GENERAL SALARY INCREASES WHICH WOULD HAVE ACCRUED DURING THE PERIOD OF REMOVAL MAY NOT BE INCLUDED IN THE COMPUTATION. THE CLAIM IS CONSIDERED TO HAVE ACCRUED ON THE DATE OF THE RESTORATION ACTION. THE PERIOD FOR WHICH BACK PAY IS ALLOWABLE UNDER THE ACT OF AUGUST 24.

B-117119, DECEMBER 28, 1961, 41 COMP. GEN. 418

COMPENSATION - REMOVALS, SUSPENSION, ETC. - BACK PAY - REDUCTION-IN FORCE SEPARATIONS--- COMPENSATION - REMOVALS, SUSPENSION, ETC. - BACK PAY - REDUCTION-IN-FORCE SEPARATIONS - TERMINATION DATE--- COMPENSATION - REMOVALS, SUSPENSION, ETC. - DEDUCTIONS FROM BACK PAY - EDUCATIONAL PERIODS--- COMPENSATION - REMOVALS, SUSPENSION, ETC. - DEDUCTIONS FROM BACK PAY - "G.I. BILL" PAYMENTS--- LEAVES OF ABSENCE - SICK - RECREDIT ON RESTORATION AFTER UNJUSTIFIED REMOVAL--- COMPENSATION - REMOVALS, SUSPENSION, ETC. - NONSENSITIVE POSITION RESTORATIONS - WITHOUT RETURN TO DUTY - TERMINATION OF EMPLOYMENT STATUS A VETERANS PREFERENCE EMPLOYEE WHO WAS SEPARATED BY REDUCTION IN FORCE UPON TRANSFER OF THE FUNCTIONS OF HIS OFFICE TO ANOTHER GOVERNMENT AGENCY AND WHO WAS CONSTRUCTIVELY RESTORED TO DUTY BY THE SECOND AGENCY, SUBSEQUENT TO THE TERMINATION OF THE FUNCTIONS OF THE ORIGINAL OFFICE, PURSUANT TO THE ORDER OF A UNITED STATES DISTRICT COURT IS ENTITLED TO BACK PAY UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (3), AND IN VIEW OF THE EXPRESS LIMITATION IN THE ACT OF THE RATE OF BACK PAY TO THAT RECEIVED ON THE DATE OF REMOVAL, PERIODIC AND STATUTORY GENERAL SALARY INCREASES WHICH WOULD HAVE ACCRUED DURING THE PERIOD OF REMOVAL MAY NOT BE INCLUDED IN THE COMPUTATION; FURTHERMORE, FOR THE PURPOSE OF APPLYING THE 10-YEAR LIMITATION IN THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, ON CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, THE CLAIM IS CONSIDERED TO HAVE ACCRUED ON THE DATE OF THE RESTORATION ACTION. ALTHOUGH, GENERALLY SPEAKING, THE PERIOD FOR WHICH BACK PAY IS ALLOWABLE UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (3), INCIDENT TO AN UNJUSTIFIED OR UNWARRANTED REMOVAL, EXTENDS FROM THE DATE OF REMOVAL TO THE DATE OF RESTORATION (CONSTRUCTIVE OR ACTUAL) IN A CASE IN WHICH, BY CONSENT, THE COURT ORDER WHICH DIRECTED RESTORATION PROVIDED THAT THERE WAS TO BE NO CONTINUATION OF ACTIVE DUTY IN THE AGENCY TO WHICH THE EMPLOYEE WAS RESTORED AFTER THE DATE OF THE COURT ORDER, THE CUTOFF DATE FOR BACK PAY SHOULD BE THE DATE OF THE COURT ORDER RATHER THAN THE DATE OF THE PROCESSING OF THE PERSONNEL ACTION REFLECTING CONSTRUCTIVE RESTORATION. IN THE COMPUTATION OF BACK PAY ENTITLEMENT UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (3), TIME ENGAGED IN EDUCATIONAL PURSUITS IS FOR EXCLUSION, THE PRINCIPLE IN SCHWARTZ V. UNITED STATES, CT.1CL. NO. 513-57, THAT ONE CLAIMING BACK PAY FOR A PERIOD OF REMOVAL UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, MUST HAVE MADE A REASONABLE EFFORT TO SECURE OTHER EMPLOYMENT, THE NET EARNINGS WHICH ARE REQUIRED, PURSUANT TO STATUTE, TO BE DEDUCTED FROM BACK PAY, BEING FOR APPLICATION, THE PROVISION IN THE 1912 STATUTE, AS AMENDED, RELATIVE TO THE DEDUCTION OF INTERIM EARNINGS BEING SUBSTANTIALLY THE SAME AS THE PROVISION IN THE 1950 STATUTE; THEREFORE, IN VIEW OF CLAIMANT'S ADMISSION THAT HE DID NOT SEEK OTHER EMPLOYMENT, THE TIME DURING WHICH HE WAS ENGAGED UPON EDUCATIONAL PURSUITS IS FOR EXCLUSION FROM THE PERIOD OF BACK PAY ENTITLEMENT. THE BENEFITS WHICH WERE PAID TO A VETERAN UNDER THE " G.I. BILL," 38 U.S.C. CH. 12A (1952 USED.), WHILE HE WAS ENGAGED UPON EDUCATIONAL PURSUITS DURING A PERIOD OF REMOVAL FROM CIVILIAN SERVICE IN CONNECTION WITH A REDUCTION-IN-FORCE ACTION ARE NOT REQUIRED TO BE DEDUCTED AS INTERIM EARNINGS FROM THE COMPUTATION OF BACK PAY DUE UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (3), UPON RESTORATION TO DUTY FOLLOWING THE REDUCTION-IN-FORCE SEPARATION, SUCH EDUCATIONAL BENEFITS NOT CONSTITUTING "AMOUNTS EARNED * * * THROUGH OTHER EMPLOYMENT," WHICH AMOUNTS ARE REQUIRED TO BE DEDUCTED FROM BACK PAY AS INTERIM EARNINGS; BUT QUESTIONS REGARDING REFUND OF " G.I. BILL" PAYMENTS IN BACK PAY CASES ARE FOR DETERMINATION BY THE VETERANS ADMINISTRATION. THE SICK LEAVE TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF AN ERRONEOUS REDUCTION-IN-FORCE SEPARATION IS FOR RECREDITING TO HIS ACCOUNT UPON DETERMINATION OF ENTITLEMENT TO BACK PAY AND THE EMPLOYEE NOT DESIRING TO SEPARATE FROM HIS CURRENT POSITION UPON RESTORATION TO DUTY BY THE AGENCY WHICH HAD ASSUMED THE FUNCTIONS, SUBSEQUENTLY TERMINATED, OF THE OFFICE FROM WHICH HE WAS WRONGFULLY SEPARATED IN A REDUCTION-IN-FORCE ACTION, MAY HAVE THE SICK LEAVE RECREDITED TO HIS ACCOUNT AT THE AGENCY IN WHICH CURRENTLY EMPLOYED. THE TERMS OF A UNITED STATES DISTRICT COURT ORDER WHICH DIRECTED THAT A VETERANS PREFERENCE EMPLOYEE WHO HAD BEEN ERRONEOUSLY SEPARATED IN A REDUCTION-IN-FORCE ACTION SHOULD BE RESTORED TO DUTY FROM THE DATE OF HIS REMOVAL TO THE DATE OF THE COURT ORDER, REQUIRE THE RETENTION OF THE EMPLOYEE BY THE AGENCY IN WHICH HE WAS RESTORED FROM THE DATE OF REMOVAL THROUGH THE DATE OF THE COURT ORDER, AND, THEREFORE, NOTWITHSTANDING THAT THE EMPLOYEE IS NOW SERVING WITH ANOTHER GOVERNMENT AGENCY, TO WHICH HE WAS APPOINTED MORE THAN 9 YEARS PRIOR TO THE DATE OF THE COURT ORDER, NO ACTION SHOULD BE TAKEN BY THE AGENCY ORDERED TO RESTORE THE ERRONEOUSLY SEPARATED EMPLOYEE TO TERMINATE THE EMPLOYEE'S STATUS PRIOR TO THE DATE OF THE COURT ORDER; HOWEVER, ANY QUESTION AS TO THE PROPER TYPE OF PERSONNEL ACTION TO BE EXECUTED TO TERMINATE THE EMPLOYEE'S STATUS IN THE AGENCY TO WHICH RESTORED SHOULD BE SUBMITTED TO THE CIVIL SERVICE COMMISSION FOR CONSIDERATION.

TO THE SECRETARY OF STATE, DECEMBER 28, 1961:

ON OCTOBER 19, 1961, THE ASSISTANT SECRETARY REQUESTED OUR DECISION ON CERTAIN QUESTIONS, HEREINAFTER QUOTED, CONCERNING THE CLAIM OF MR. HORACE J. FELDMAN FOR BACK PAY FOR THE PERIOD OF HIS REMOVAL FROM SERVICE IN CONNECTION WITH A REDUCTION IN FORCE.

THE RECORD SHOWS THAT THE CLAIMANT, A VETERAN PREFERENCE EMPLOYEE, WAS SEPARATED BY THE DEPARTMENT OF THE ARMY ON DECEMBER 4, 1949, AS A LEGAL ASSISTANT CLERK OF COURT OF THE UNITED STATES MILITARY COURT AT ANSBACH, GERMANY, IN CONNECTION WITH THE TERMINATION OF MILITARY GOVERNMENT IN GERMANY AND THE TRANSFER OF CERTAIN FUNCTIONS OF THE OFFICE OF MILITARY GOVERNMENT FOR GERMANY ( OMGUS) TO THE OFFICE OF THE HIGH COMMISSIONER FOR GERMANY ( HICOG), ESTABLISHED SEPTEMBER 21, 1949, UNDER THE DEPARTMENT OF STATE. UPON APPEAL OF THE SEPARATION TO THE CIVIL SERVICE COMMISSION IT WAS HELD ON JULY 1, 1952, THAT THERE HAD BEEN A TRANSFER OF FUNCTIONS WITHIN THE MEANING OF THE LAST PROVISO TO SECTION 12 OF THE VETERANS PREFERENCE ACT OF 1944, 5 U.S.C. 861, AND THE COMMISSION RECOMMENDED THAT THE CLAIMANT BE RESTORED TO ACTIVE DUTY RETROACTIVELY EFFECTIVE TO THE DAY FOLLOWING THE LAST DAY IN A FULL PAY STATUS AND IN A POSITION OF LIKE STATUS AND PAY IN THE DEPARTMENT OF STATE TO THAT FROM WHICH HE WAS IMPROPERLY SEPARATED IN THE DEPARTMENT OF THE ARMY.

THE DEPARTMENT OF STATE DECLINED ON VARIOUS GROUNDS TO COMPLY WITH THE COMMISSION'S DIRECTIVE. ON SEPTEMBER 18, 1953, THE CLAIMANT FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO COMPEL THE SECRETARY OF STATE TO COMPLY WITH SUCH DIRECTIVE. IN 1959 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WAS DISMISSED AND THE GOVERNMENT'S MOTION TO DISMISS WAS GRANTED ON THE GROUND THAT THE CASE HAD BECOME MOOT BECAUSE OF THE TERMINATION OF HICOG IN 1955. HOWEVER, ON FEBRUARY 25, 1960, IN FELDMAN V. HERTER, 276 F.2D 485, THE COURT OF APPEALS RULED THAT THE DEPARTMENT OF STATE SHOULD CARRY OUT THE CIVIL SERVICE COMMISSION'S RECOMMENDATION "AS NEARLY AS MAY BE BY EMPLOYING APPELLANT, AS THE STATUTE REQUIRES, IN A POSITION FOR WHICH HE IS QUALIFIED, BEFORE IT SHALL APPOINT ADDITIONAL EMPLOYEES FROM ANY OTHER SOURCE FOR SUCH POSITION," ADDING: " WE NEED NOT DECIDE WHETHER HIS APPOINTMENT SHOULD BE IN THE FOREIGN SERVICE OR ELSEWHERE IN THE DEPARTMENT OF STATE.' THE JUDGMENT OF THE DISTRICT COURT WAS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS.

ON MAY 26, 1961, THE DISTRICT COURT ENTERED AN ORDER FOR RESTORATION; AND, ON AUGUST 22, 1961--- IT APPEARING THAT THE CLAIMANT DID NOT DESIRE TO LEAVE HIS CURRENT POSITION WITH THE LIBRARY OF CONGRESS--- YOUR DEPARTMENT PROCESSED A PERSONNEL ACTION REFLECTING A CONSTRUCTIVE RESTORATION AS LEGAL ASSISTANT, GRADE GS-9, $4,725 PER ANNUM, EFFECTIVE DECEMBER 5, 1949.

WITH FURTHER REFERENCE TO THE PERTINENT FACTS, THE ASSISTANT SECRETARY SAYS THAT PRIOR TO THE EFFECTIVE DATE OF THE CLAIMANT'S OMGUS TERMINATION NOTICE, HE REQUESTED AND WAS GIVEN A LOCAL SEPARATION SO THAT HE COULD ENROLL AT THE UNIVERSITY OF VIENNA. YOUR DEPARTMENT HAS ASCERTAINED THAT HE ENROLLED IN THE UNIVERSITY ON NOVEMBER 1, 1949, AND STUDIED THERE UNTIL OCTOBER 1951 (UNDER THE " G.I. BILL OF RIGHTS" DURING THE 1950 SUMMER TERM, WITH CERTAIN EXPENSES PAID FOR BY THE VETERANS ADMINISTRATION). ALSO HAS BEEN ASCERTAINED THAT HE TOOK PRIVATE LANGUAGE LESSONS AT THE BERLITZ SCHOOL DURING THAT PERIOD WITH " G.I. BILL" BENEFITS FOR A CERTAIN PORTION THEREOF.

THE CLAIMANT WAS EMPLOYED IN PRIVATE BUSINESS IN NEW JERSEY FROM NOVEMBER 12, 1951, TO SOME TIME IN MARCH 1952. THEREAFTER, EFFECTIVE MARCH 24, 1952, HE WAS APPOINTED TO A POSITION AT THE LIBRARY OF CONGRESS AT GRADE GS-7, $4,205 PER ANNUM; HE WAS PROMOTED TO GRADE GS 9, $5,185 PER ANNUM, ON SEPTEMBER 30, 1952; AND TO GRADE GS-11, $7,270 PER ANNUM, ON OCTOBER 5, 1959.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR OUR DECISION:

1. IS MR. FELDMAN ENTITLED TO BACK PAY IN THE CIRCUMSTANCES DESCRIBED?

2. IF IT IS DETERMINED THAT MR. FELDMAN IS ENTITLED TO BACK PAY, IS IT CORRECT TO ASSUME THAT THE PROVISIONS OF 5 U.S.C. 652 (B) (3) WOULD BE APPLICABLE AND THAT COMPUTATION OF BACK PAY WOULD EXTEND FROM DECEMBER 5, 1949 TO MAY 26, 1961, BASED ON HIS GS-9 SALARY INCLUDING ANY PERIODIC STEP INCREASES AND STATUTORY PAY INCREASES, LESS ANY AMOUNTS EARNED BY HIM DURING THIS PERIOD?

3. (A) WOULD THE 10 PERCENT FOREIGN POST SALARY DIFFERENTIAL FOR WHICH HE WAS ELIGIBLE WHEN SEPARATED BY REDUCTION IN FORCE ON DECEMBER 4, 1949 BE INCLUDED IN THE RATE AT WHICH BACK PAY WOULD BE COMPUTED?

(B) IF THE ANSWER IS "YES," SHOULD IT BE INCLUDED IN THE COMPUTATION FOR THE PERIOD (1) DECEMBER 5, 1949 TO THE DATE HICOG WAS TERMINATED, OR THE DATE THE DEPARTMENT STOPPED PAYMENT OF THE DIFFERENTIAL ( MARCH 4, 1950), WHICHEVER IS EARLIER; OR (2) DECEMBER 5, 1949 TO MARCH 24, 1952, WHEN MR. FELDMAN ACCEPTED EMPLOYMENT IN THE LIBRARY OF CONGRESS?

4. IF IT IS DETERMINED THAT MR. FELDMAN IS ENTITLED TO BACK PAY UNDER THE CIRCUMSTANCES, WHAT PORTION, IF ANY, OF THE SUMS HE MAY HAVE RECEIVED FROM THE VETERANS ADMINISTRATION WHILE STUDYING UNDER THE G.I. BILL OF RIGHTS SHOULD BE CONSIDERED AS EARNINGS TO BE SET-OFF AGAINST ANY MONEY DUE HIM AS BACK PAY?

5. IF BACK PAY IS DETERMINED TO BE APPROPRIATE, IS IT CORRECT TO ASSUME THAT ANY SICK LEAVE TO MR. FELDMAN'S CREDIT WHEN SEPARATED FROM THE DEPARTMENT OF THE ARMY ON DECEMBER 4, 1949, WOULD NOW BE RECREDITED TO HIS ACCOUNT AT THE LIBRARY OF CONGRESS?

6. IS IT APPROPRIATE FOR THE DEPARTMENT TO PROCESS A SEPARATION ACTION EFFECTIVE CLOSE OF MARCH 23, 1952 IN VIEW OF MR. FELDMAN'S EMPLOYMENT IN THE LIBRARY OF CONGRESS ON THE FOLLOWING AY?

SECTIONS 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B) (3), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT AFTER 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. * * *

THE COURT OF CLAIMS HAS HELD THAT AN EMPLOYEE WHO IS RESTORED TO DUTY PURSUANT TO AN ORDER OF A DISTRICT COURT FOLLOWING A REDUCTION-IN FORCE SEPARATION IS SUBJECT TO THE ABOVE-QUOTED BACK PAY PROVISIONS, AND THAT, IN VIEW OF THE EXPRESS LIMITATION OF THE RATE OF BACK PAY TO THAT RECEIVED ON THE DATE OF REMOVAL, PERIODIC AND STATUTORY GENERAL SALARY INCREASES WHICH WOULD HAVE ACCRUED DURING THE PERIOD OF REMOVAL MAY NOT BE INCLUDED IN THE COMPUTATION. GREEN V. UNITED STATES 124 CT.1CL. 186. SEE ALSO EDWARD J. O-BRIEN V. UNITED STATES, 124 CT.1CL. 655 AND WALTER F. O-BRIEN V. UNITED STATES, 138 ID. 296; 35 COMP. GEN. 241, AND CASES THERE CITED. APPLYING THOSE PRINCIPLES HERE, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, AND QUESTION 2, SO FAR AS IT RELATES TO THE INCLUSION OF PERIODIC AND STATUTORY INCREASES, IS ANSWERED IN THE NEGATIVE.

PARENTHETICALLY, WE SHOULD OBSERVE THAT THE COURT OF CLAIMS DISMISSED THE CLAIMANT'S SUIT FOR BACK PAY UPON THE GROUND THAT IT WAS BARRED BY LIMITATIONS (28 U.S.C. 2501/--- THE 6-YEAR LIMITATION PERIOD BEING COMPUTED FROM DECEMBER 5, 1952, THE DATE OF THE FINAL RESTORATION RECOMMENDATION BY THE CIVIL SERVICE COMMISSION. HORACE J. FELDMAN V. UNITED STATES, 149 CT.1CL. 22, 181 F.1SUPP. 393. AT THE TIME OF THE COURT'S DECISION, THERE HAD BEEN NO RESTORATION ACTION BY THE DEPARTMENT OF STATE CONFERRING A RIGHT TO BACK PAY UNDER THE 1948 STATUTE. OUR VIEW IS THAT THE CLAIM HERE UNDER CONSIDERATION FIRST ACCRUED UNDER THE STATUTE ON THE DATE OF THE DEPARTMENT'S RESTORATION ACTION, NAMELY, AUGUST 22, 1961, FOR THE PURPOSE OF APPLYING THE 10 YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, ON CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE.

AS TO THAT PORTION OF QUESTION 2 CONCERNING THE PERIOD OVER WHICH THE CLAIMANT'S BACK PAY RIGHTS EXTEND UNDER THE STATUTE, WE MAY SAY THAT, GENERALLY SPEAKING, THE PERIOD COVERED BY THE STATUTE EXTENDS FROM THE DATE OF AN UNJUSTIFIED OR UNWARRANTED REMOVAL TO THE DATE OF RESTORATION (CONSTRUCTIVE OR ACTUAL). 34 COMP. GEN. 480. HOWEVER, SINCE, BY CONSENT, THE COURT ORDER OF MAY 26, 1961, PROVIDED THAT THERE WAS TO BE NO CONTINUATION OF ACTIVE DUTY IN THE DEPARTMENT OF STATE AFTER THE DATE OF THE ORDER, WE ARE OF THE OPINION THAT THE CUTOFF DATE IN THIS CASE SHOULD BE MAY 26, 1961, RATHER THAN AUGUST 22, 1961, THE DATE YOUR DEPARTMENT PROCESSED A PERSONNEL ACTION REFLECTING THE RESTORATION.

CONCERNING THE PERIOD DURING WHICH THE CLAIMANT PURSUED HIS EDUCATION, WE REFER TO THE DECISION OF THE COURT OF CLAIMS ON MARCH 2, 1960, IN EDWARD SCHWARTZ V. UNITED STATES, 147 CT.1CL. 145, 181 F.1SUPP. 408, TO THE EFFECT THAT ONE CLAIMING BACK PAY FOR A PERIOD OF REMOVAL UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, MUST HAVE MADE A REASONABLE EFFORT TO SECURE OTHER EMPLOYMENT, THE NET EARNINGS FROM WHICH ARE, PURSUANT TO THE STATUTE, REQUIRED TO BE DEDUCTED FROM BACK PAY; AND THAT, IN VIEW OF THE PLAINTIFF'S ADMISSION THAT HE DID NOT SEEK OTHER EMPLOYMENT, HE WAS NOT ENTITLED TO RECOVER BACK PAY FOR THE PERIOD OF REMOVAL (AS DISTINGUISHED FROM THE IMMEDIATELY PRECEDING PERIOD OF SUSPENSION DURING WHICH PLAINTIFF WAS PREPARING FOR A HEARING AND AWAITING A FINAL DECISION). THE STATUTE HERE INVOLVED, TO WHICH THE COURT REFERRED ON PAGE 410 OF THE PUBLISHED REPORT, CONTAINS SUBSTANTIALLY THE SAME PROVISION FOR DEDUCTION OF INTERIM EARNINGS AS THE 1950 STATUTE. OUR OPINION IS THAT THE PRINCIPLE OF THE SCHWARTZ CASE SHOULD BE APPLIED HERE TO REQUIRE THE EXCLUSION OF THE TIME DURING WHICH THE CLAIMANT WAS ENGAGED UPON EDUCATIONAL PURSUITS FROM THE PERIOD OF BACK PAY ENTITLEMENT. ACCORDING TO THE ASSISTANT SECRETARY'S STATEMENT OF THE CASE, THE EXCLUDED PERIOD EXTENDS FROM DECEMBER 5, 1949, TO THE DATE IN OCTOBER OR NOVEMBER 1951, WHEN THE CLAIMANT DEPARTED FOR THE UNITED STATES (IT APPEARING THAT AFTER ARRIVAL IN THE UNITED STATES HE OBTAINED EMPLOYMENT BEGINNING NOVEMBER 12, 1951).

THE AGGREGATE NET EARNINGS FROM BOTH PRIVATE AND GOVERNMENT EMPLOYMENT DURING THE PERIOD OF REMOVAL ARE TO BE DEDUCTED FROM THE BACK PAY COMPUTED UNDER THE STATUTORY FORMULA.

WE BELIEVE THE FOREGOING COMMENTS ANSWER THE MATTERS EMBODIED IN QUESTION 2.

CONCERNING QUESTION 3 (A), THE FOREIGN POST DIFFERENTIAL SHOULD NOT BE INCLUDED IN THE COMPUTATION OF BACK PAY. SEE DISSENTING OPINION IN VITARELLI V. UNITED STATES, CT.1CL. NO. 283-59, DECIDED JUNE 8, 1960, 279 F.2D 878, 884, REFERRING TO AN ORDER OF OCTOBER 7, 1959, IN CASMAN V. UNITED STATES, WHICH IS SOMEWHAT PARALLEL TO THE INSTANT CASE. CF. 40 COMP. GEN. 479.

IN VIEW OF THE ANSWER TO QUESTION 3 (A) NO ANSWER TO 3 (B) IS REQUIRED.

CONCERNING QUESTION 4, OUR OPINION IS THAT AMOUNTS PAID IN CONNECTION WITH THE EDUCATIONAL BENEFITS GRANTED BY THE " G.I. BILL" (58 STAT. 287, 38 U.S.C. CH. 12A (1952 USED.) ( DO NOT CONSTITUTE "AMOUNTS EARNED * * * THROUGH OTHER EMPLOYMENT" FOR PURPOSES OF COMPUTING BACK PAY. THIS QUESTION IS, THEREFORE, ANSWERED IN THE NEGATIVE. WE SHOULD ADD, HOWEVER, THE COMMENT THAT QUESTIONS REGARDING REFUND OF " G.I. BILL" PAYMENTS, SUCH AS HEREIN INVOLVED, ARE FOR DETERMINATION BY THE VETERANS ADMINISTRATION.

QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE. SINCE THE ASSISTANT SECRETARY HAS NOT PRESENTED ANY QUESTIONS REGARDING ANNUAL LEAVE, WE ASSUME THAT NO DOUBTFUL MATTER HAS ARISEN IN THAT CONNECTION.

REFERRING TO QUESTION 6, OUR VIEW IS THAT THE TERMS OF THE COURT ORDER OF MAY 26, 1961, REQUIRE THAT THE CLAIMANT RETAIN STATUS IN THE DEPARTMENT OF STATE THROUGH THE DATE OF THE ORDER AND THAT, THEREFORE, NO ACTION SHOULD BE TAKEN TO TERMINATE THAT STATUS AS OF A DATE PRIOR THERETO. WE SUGGEST THAT ANY QUESTION AS TO THE PROPER TYPE OF PERSONNEL ACTION TO BE EXECUTED TO TERMINATE THE CLAIMANT'S STATUS IN THE DEPARTMENT BE SUBMITTED TO THE CIVIL SERVICE COMMISSION FOR CONSIDERATION.