B-121568, MAY 4, 1955, 34 COMP. GEN. 568

B-121568: May 4, 1955

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DISCHARGES AND DISMISSALS - APPEALS BASED ON PROCEDURAL DEFECTS - COMPENSATION FOR PERIOD OF REMOVAL - RESTORATION TO DUTY EMPLOYEES WHO ARE RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 ARE ENTITLED TO THE BACK PAY BENEFITS OF THE ACT OF AUGUST 24. 1955: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22. THE RECORD REVEALS THAT ONE OF THE EMPLOYEES WAS SEPARATED FROM THE SERVICE FOR CAUSE ON MAY 14. HE WAS RESTORED TO DUTY ON JULY 14. THE GROUNDS FOR THE SECOND SEPARATION WERE THE SAME AS FOR THE PRIOR ONE WHICH HAD BEEN TO BE PROCEDURALLY DEFECTIVE.

B-121568, MAY 4, 1955, 34 COMP. GEN. 568

DISCHARGES AND DISMISSALS - APPEALS BASED ON PROCEDURAL DEFECTS - COMPENSATION FOR PERIOD OF REMOVAL - RESTORATION TO DUTY EMPLOYEES WHO ARE RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 ARE ENTITLED TO THE BACK PAY BENEFITS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, FOR THE PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVALS. 29 C.G. 209; 32 ID. 210, 356, OVERRULED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LESTER H. THOMPSON, FEDERAL HOUSING ADMINISTRATION, MAY 4, 1955:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1954, YOUR REFERENCE AC -S, ENCLOSING TWO VOUCHERS, TOGETHER WITH RELATED PAPERS, COVERING PROPOSED PAYMENTS OF SALARY TO TWO EMPLOYEES OF THE FEDERAL HOUSING ADMINISTRATION DURING PERIODS OF THEIR REMOVAL FROM THE SERVICE, AND REQUESTING OUR DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE VOUCHERS MAY BE CERTIFIED FOR PAYMENT.

THE RECORD REVEALS THAT ONE OF THE EMPLOYEES WAS SEPARATED FROM THE SERVICE FOR CAUSE ON MAY 14, 1954. HOWEVER, AS A RESULT OF HIS APPEAL TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, HE WAS RESTORED TO DUTY ON JULY 14, 1954, RETROACTIVE TO THE DATE OF THE REMOVAL. THE COMMISSION, WITHOUT PASSING UPON THE MERITS OF HIS CASE, HELD THAT THE FEDERAL HOUSING ADMINISTRATION FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF THE LAW AND REGULATIONS IN THAT THE EMPLOYEE DID NOT RECEIVE A FULL THIRTY DAYS' NOTICE OF THE PROPOSED ACTION. IN ORDER TO CORRECT THE PROCEDURAL DEFECT THE FEDERAL HOUSING ADMINISTRATION BY LETTER DATED JULY 7, 1954, ADVISED THE EMPLOYEE THAT IT INTENDED TO SEPARATE HIM AGAIN FOR CAUSE ON AUGUST 27, 1954. PRESUMABLY, THE GROUNDS FOR THE SECOND SEPARATION WERE THE SAME AS FOR THE PRIOR ONE WHICH HAD BEEN TO BE PROCEDURALLY DEFECTIVE.

THE FACTS IN REGARD TO THE OTHER EMPLOYEE ARE SUBSTANTIALLY THE SAME. WAS SEPARATED FOR CAUSE ON FEBRUARY 27, 1954, AND HE APPEALED TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED. THE COMMISSION, WITHOUT PASSING UPON THE MERITS OF HIS CASE, FOUND THAT A PROCEDURAL DEFECT EXISTED IN THAT THERE WAS A LACK OF SPECIFICITY AND DETAIL IN THE AGENCY'S NOTICE OF PROPOSED ACTION. RECOMMENDED THAT THE EMPLOYEE BE RESTORED TO DUTY RETROACTIVE TO THE DATE OF HIS REMOVAL. THAT ACTION WAS COMPLIED WITH AND THE EMPLOYEE WAS RESTORED TO DUTY ON JULY 14, 1954. AS IN THE CASE OF THE OTHER EMPLOYEE, THE PROCEDURAL DEFECT WAS CORRECTED BY THE ADMINISTRATIVE OFFICE AND THE EMPLOYEE WAS NOTIFIED ON JULY 8, 1954, THAT HE AGAIN WOULD BE SEPARATED FOR CAUSE ON AUGUST 27, 1954, PRESUMABLY, UPON THE SAME GROUNDS AS THOSE FORMING THE BASIS FOR HIS FIRST SEPARATION.

THE QUESTION HERE IS WHETHER THE RESTORATION TO DUTY OF THE TWO EMPLOYEES BECAUSE OF THE FAILURE OF THE ADMINISTRATIVE OFFICE TO FOLLOW THE PROCEDURAL STEPS REQUIRED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 ENTITLES THEM TO "BACK PAY" UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. THAT ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(2) ANY PERSON WHO IS DISCHARGED, SUSPENDED OR FURLOUGHED WITHOUT PAY UNDER SECTION 863 OF THIS TITLE (SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED), WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED,SUSPENDED, OR FURLOUGHED, 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.

HERETOFORE, THE DECISIONS OF OUR OFFICE HAVE NOT RECOGNIZED REMOVALS FROM THE SERVICE AND RESTORATIONS TO DUTY OF THE NATURE HERE INVOLVED AS FALLING WITHIN THE PURVIEW OF THE ACT. 29 COMP. GEN. 209; 32 ID. 210, 356. HOWEVER, WE NOW HAVE DETERMINED TO VIEW SUCH SEPARATIONS AS WITHIN THE MEANING OF THE TERMS "UNJUSTIFIED" OR "UNWARRANTED" AS THEY ARE USED IN THAT ACT. SEE STRINGER V. UNITED STATES, 117 C.1CLS. 30; GARCIA V. UNITED STATES, 123 C.1CLS. 172.

ACCORDINGLY, AND AS THE TWO EMPLOYEES WERE RESTORED TO DUTY IN ACCORDANCE WITH THE MANDATES OF THE CIVIL SERVICE COMMISSION WHICH WERE PREDICATED UPON THE FAILURE OF THE ADMINISTRATIVE OFFICE TO FOLLOW THE PROCEDURAL STEPS SET FORTH IN SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, THE PAYMENT OF COMPENSATION FOR THE PERIODS OF THEIR REMOVALS APPEAR PROPER UNDER THE ABOVE-QUOTED ACT.

THE VOUCHERS, WHICH TOGETHER WITH THE RELATED PAPERS ARE RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.