B-122137, MARCH 29, 1955, 34 COMP. GEN. 480

B-122137: Mar 29, 1955

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COMPENSATION - DISCHARGES AND DISMISSALS - COMPENSATION FOR PERIOD BETWEEN SEPARATION AND REINSTATEMENT AN EMPLOYEE WHO WAS IMPROPERLY SEPARATED BY REDUCTION IN FORCE AND WHO WAS ORDERED RESTORED TO HIS FORMER POSITION RETROACTIVE TO DATE OF SEPARATION. - ALTHOUGH SUCH RESTORATION WAS NECESSARILY CONSTRUCTIVE BECAUSE HE HAD OBTAINED A POSITION WITH ANOTHER AGENCY. - IS ENTITLED UNDER THE BACK-PAY ACT OF JUNE 10. WHO WAS SUBSEQUENTLY PROMOTED TO THE GRADE AND RATE HELD AT TIME OF SEPARATION. IS ENTITLED UPON CONSTRUCTIVE RESTORATION PURSUANT TO THE BACK-PAY ACT OF JUNE 10. AS A RESULT OF A FINDING BY THE CIVIL SERVICE COMMISSION THAT AN EMPLOYEE OF YOUR DEPARTMENT WAS IMPROPERLY SEPARATED IN A REDUCTION IN FORCE.

B-122137, MARCH 29, 1955, 34 COMP. GEN. 480

COMPENSATION - DISCHARGES AND DISMISSALS - COMPENSATION FOR PERIOD BETWEEN SEPARATION AND REINSTATEMENT AN EMPLOYEE WHO WAS IMPROPERLY SEPARATED BY REDUCTION IN FORCE AND WHO WAS ORDERED RESTORED TO HIS FORMER POSITION RETROACTIVE TO DATE OF SEPARATION--- ALTHOUGH SUCH RESTORATION WAS NECESSARILY CONSTRUCTIVE BECAUSE HE HAD OBTAINED A POSITION WITH ANOTHER AGENCY--- IS ENTITLED UNDER THE BACK-PAY ACT OF JUNE 10, 1948, TO COMPENSATION FROM THE DATE OF SEPARATION TO THE DATE OF RESTORATION. AN EMPLOYEE IMPROPERLY SEPARATED FROM THE SERVICE BY REDUCTION IN FORCE WHO OBTAINED EMPLOYMENT WITH ANOTHER AGENCY IN A LOWER GRADE, AND WHO WAS SUBSEQUENTLY PROMOTED TO THE GRADE AND RATE HELD AT TIME OF SEPARATION, IS ENTITLED UPON CONSTRUCTIVE RESTORATION PURSUANT TO THE BACK-PAY ACT OF JUNE 10, 1948, TO COMPENSATION AT THE RATE RECEIVED ON DATE OF SEPARATION THROUGH DATE OF REEMPLOYMENT AND THE DIFFERENCE BETWEEN SUCH RATE AND THE LOWER RATE RECEIVED UPON REEMPLOYMENT TO THE DATE OF PROMOTION.

COMPTROLLER GENERAL CAMPBELL TO THE ATTORNEY GENERAL, MARCH 29, 1955:

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER OF NOVEMBER 16, 1954, REFERENCE A3, REQUESTS OUR DECISION REGARDING THE PAYMENT OF COMPENSATION PROPERLY DUE UNDER THE PROVISIONS OF SECTION 6 (B) (3) OF THE ACT OF JUNE 10, 1948, 62 STAT. 355, AS A RESULT OF A FINDING BY THE CIVIL SERVICE COMMISSION THAT AN EMPLOYEE OF YOUR DEPARTMENT WAS IMPROPERLY SEPARATED IN A REDUCTION IN FORCE. THE FINDING RECOMMENDED THAT THE EMPLOYEE BE RESTORED RETROACTIVELY TO THE DATE OF THE IMPROPER SEPARATION.

THE EMPLOYEE, A VETERAN IN SUBGROUP III-A, WAS NOTIFIED ON JULY 20, 1953, THAT HIS SERVICES WOULD BE TERMINATED AT THE CLOSE OF BUSINESS AUGUST 21, 1953, BY A REDUCTION IN FORCE IN THE OFFICE OF ALIEN PROPERTY. EXCEPTION TO THE REGULAR ORDER OF SEPARATION WAS MADE BY THE DEPARTMENT IN FAVOR OF ANOTHER EMPLOYEE IN THE SAME POSITION WHO WAS IN SUBGROUP III-B.

THE CIVIL SERVICE COMMISSION, BOARD OF APPEALS AND REVIEW, HAS ADVISED US INFORMALLY THAT THE EMPLOYEE APPEALED HIS REDUCTION IN FORCE ON JULY 29, 1953. ON SEPTEMBER 3, 1953, THE COMMISSION ADVISED YOUR DEPARTMENT THAT MR. MORITZ SHOULD BE RESTORED RETROACTIVELY WITHIN 10 DAYS. THE COMMISSION REQUESTED THAT A COPY OF THE PERSONNEL ACTION ACCOMPLISHING THE CORRECTIVE ACTION BE FURNISHED. FURTHER, IT APPEARS THAT ON SEPTEMBER 15, 1953, WITHOUT RESTORING MR. MORITZ AS DIRECTED BY THE COMMISSION, YOUR DEPARTMENT ADVISED THE COMMISSION THAT THE LOWER RANKING EMPLOYEE WAS BEING SEPARATED EFFECTIVE OCTOBER 18, 1953, AND, IN EFFECT, THAT HIS POSITION WAS BEING ABOLISHED. THE REDUCTION IN FORCE UNIT OF THE COMMISSION ON OCTOBER 7, 1953, ADVISED MR. MORITZ THAT SINCE THE LOWER- RANKING EMPLOYEE WAS BEING SEPARATED NO FURTHER ACTION BY THE COMMISSION WAS IN ORDER. MR. MORITZ BY LETTER DATED OCTOBER 13, 1953, MADE A FURTHER APPEAL WHICH WAS CONSIDERED BY THE BOARD OF APPEALS AND REVIEW. THE BOARD CONCLUDED THAT THE SEPARATION OF MR. MORITZ ON AUGUST 21, 1953, WAS IMPROPER. BY LETTER DATED SEPTEMBER 30, 1954, THE COMMISSION RECOMMENDED TO YOUR DEPARTMENT THAT MR. MORITZ BE ACCORDED FULL RESTORATION RETROACTIVELY TO DATE OF SEPARATION. THE COMMISSION'S RECORD SHOWS THAT IN RESPONSE TO THE LETTER OF SEPTEMBER 30, 1954, PERSONNEL ACTIONS BEARING THAT DATE WERE PROCESSED. BY SUCH ACTIONS MR. MORITZ WAS RETROACTIVELY RESTORED AUGUST 22, 1953, AND SEPARATED FOR TRANSFER C.O.B. NOVEMBER 1, 1953--- HE HAVING BEEN REEMPLOYED IN A GRADE GS-11 POSITION, $6,940 PER ANNUM, BY THE DEPARTMENT OF THE ARMY EFFECTIVE NOVEMBER 2, 1953. THE RECORD SHOWS THAT MR. MORITZ WAS PROMOTED BY THE DEPARTMENT OF THE ARMY TO A GRADE GS-13 POSITION APRIL 4, 1954, $8,360 PER ANNUM.

YOUR DEPARTMENT STATES THAT MR. MORITZ FEELS HE SHOULD RECEIVE THE DIFFERENCE BETWEEN $6,940, THE SALARY RATE OF THE GRADE GS-11 POSITION, THE POSITION IN WHICH HE WAS REEMPLOYED BY THE DEPARTMENT OF THE ARMY ON NOVEMBER 2, 1953, AND $8,360, THE SALARY RATE OF THE GRADE GS-13 POSITION, THE POSITION FROM WHICH HE WAS REMOVED IN YOUR DEPARTMENT. IT FURTHER IS STATED THAT MR. MORITZ POINTS OUT THAT EXCEPT FOR THE DEPARTMENT'S REDUCTION-IN-FORCE ACTION HE WOULD HAVE RECEIVED PERIODIC STEP-INCREASE IN THE OFFICE OF ALIEN PROPERTY TO $8,560 ON MARCH 28, 1954, WHICH HE FEELS SHOULD BE REFLECTED IN HIS CURRENT SALARY RATE.

BASED UPON THE FOREGOING STATEMENT OF FACTS, THE QUESTIONS PRESENTED IN THE DEPARTMENT'S LETTER ARE STATED AS FOLLOWS:

1. WHETHER THERE IS ANY OBLIGATION ON THE PART OF THIS DEPARTMENT TO PAY ANY SALARY TO MR. MORITZ BEYOND THE CLOSE OF BUSINESS OCTOBER 18, 1953, WHEN THE OTHER INDIVIDUAL WAS SEPARATED FROM SERVICE? IF SO, IT IS ASSUMED THIS OBLIGATION WOULD NOT EXTEND BEYOND NOVEMBER 1, 1953. IT IS FURTHER ASSUMED THAT THE RESTORATION FOR WHATEVER PERIOD IS PROPER SHOULD BE IN THE GS-13 RATE, $8360.

2. IS THERE ANY OBLIGATION ON THE PART OF THIS DEPARTMENT TO MAKE ANY PAYMENT TO MR. MORITZ FOR ANY PERIOD SUBSEQUENT TO HIS ACCEPTANCE OF A POSITION IN THE DEPARTMENT OF THE ARMY AND HIS ENTRY ON DUTY THEREIN. SO, WHAT IS THE NATURE OF THE OBLIGATION AND FOR WHAT PERIOD?

3. IN ORDER TO PREVENT FURTHER APPEAL OR SUBMISSION BY ANOTHER GOVERNMENT AGENCY, WOULD YOUR OFFICE CARE TO COMMENT ON MR. MORITZ- CONTENTION THAT HIS SALARY, EFFECTIVE MARCH 28, 1954, SHOULD BE AT THE RATE OF $8560?

SECTION 6 (B) (3) OF PUBLIC LAW 623, APPROVED JUNE 10, 1948, 62 STAT. 355, READS, IN PERTINENT PART, AS FOLLOWS:

ANY PERSON REMOVED * * * IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY IS * * * RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL * * * WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL * * * , FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED * * * , 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. * * *

IN ITS LETTER OF SEPTEMBER 30, 1954, THE CIVIL SERVICE COMMISSION STATED THAT THE ONLY CORRECTION FOR IMPROPER SELECTION FOR REDUCTION IN FORCE IS FULL RESTORATION RETROACTIVELY TO DATE OF SEPARATION, AUGUST 22, 1953. THE INFORMATION IN THIS CASE SHOWS THAT NO ADMINISTRATIVE ACTION WAS TAKEN PURSUANT TO THE FIRST DETERMINATION OF THE CIVIL SERVICE COMMISSION DATED SEPTEMBER 3, 1953, WHICH RECOMMENDED RESTORATION RETROACTIVELY WITHIN 10 DAYS. HOWEVER, IN COMPLIANCE WITH THE SECOND DETERMINATION OF THE COMMISSION, DATED SEPTEMBER 30, 1954, PERSONNEL ACTIONS BEARING THAT DATE HAVE BEEN PROCESSED EFFECTING FULL RESTORATION RETROACTIVE TO AUGUST 22, 1953, AND SEPARATING MR. MORITZ BY TRANSFER C.O.B. NOVEMBER 1, 1953. SUCH ACTION HAS THE EFFECT OF ESTABLISHING THE PERIOD OF REMOVAL FROM AUGUST 22, 1953, TO SEPTEMBER 30, 1954, THE DATE ADMINISTRATIVE ACTION WAS FINALLY TAKEN. THE ACTION ABOLISHING THE POSITION OF THE LOWER-RANKING EMPLOYEE EFFECTIVE OCTOBER 18, 1953, DID NOT, AS THE CIVIL SERVICE COMMISSION STATES, HAVE THE EFFECT OF CORRECTING THE ERROR CREATED BY THE IMPROPER REMOVAL OF MR. MORITZ.

SINCE MR. MORITZ WAS REMOVED, AND SINCE HE APPEALED TO PROPER AUTHORITY AND HAS BEEN RESTORED TO DUTY--- ALTHOUGH SUCH RESTORATION WAS NECESSARILY CONSTRUCTIVE IN NATURE--- HE IS ENTITLED, BY VIRTUE OF THE PROVISIONS OF SECTION 6 (B) (3), TO BACK PAY FOR THE PERIOD AUGUST 22, 1953, TO SEPTEMBER 30, 1954. WHILE IT IS RECOGNIZED THAT THE CLAIMANT ON NOVEMBER 2, 1953, SECURED REEMPLOYMENT IN ANOTHER DEPARTMENT AT A LOWER GRADE AND SALARY AND SUBSEQUENTLY WAS PROMOTED, ON APRIL 4, 1954, TO GRADE GS-13, $8,360 PER ANNUM, THE GRADE AND RATE HELD WHEN HE WAS SEPARATED, SUCH REEMPLOYMENT IS NO BAR TO RECOVERY. RATHER, IT CONSTITUTES A BASIS WHEREBY THE AMOUNT THUS EARNED DURING THE INTERIM PERIOD IS TO BE SET OFF AGAINST THE TOTAL COMPENSATION OTHERWISE PAYABLE UNDER THE REFERRED-TO ACT. SEE B-119814, SEPTEMBER 2, 1954.

ACCORDINGLY, THE CLAIMANT IS ENTITLED TO BE PAID AT THE RATE OF $8,360 PER ANNUM, THE RATE HE WAS RECEIVING ON DATE OF SEPARATION, FOR THE PERIOD AUGUST 22, THROUGH NOVEMBER 1, 1953, AND THE DIFFERENCE BETWEEN THAT RATE AND THE RATE RECEIVED UPON REEMPLOYMENT, $6,940 PER ANNUM, FOR THE PERIOD NOVEMBER 2, 1953, TO APRIL 4, 1954, WHEN HE WAS PROMOTED TO GRADE GS-13 AT $8,360 PER ANNUM.

QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

WITH REFERENCE TO QUESTION 3, ATTENTION IS INVITED TO 28 COMP. GEN. 563, WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDING THAT A PERSON IMPROPERLY REMOVED AND SUBSEQUENTLY REINSTATED IS TO BE DEEMED AS HAVING RENDERED SERVICE FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE DURING THE PERIOD OF REMOVAL, THERE SHOULD BE INCLUDED IN THE RATE OF COMPENSATION PAYABLE ON AND AFTER THE DATE OF RESTORATION A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT WHICH WOULD HAVE BEEN GRANTED HAD THE EMPLOYEE REMAINED IN THE SERVICE DURING THE PERIOD OF REMOVAL, PROVIDED ALL ELEMENTS FOR SUCH ADVANCEMENT WERE PRESENT AT THE DATE OF RESTORATION.

ALTHOUGH THE "PAPERWORK" DATE OF RESTORATION IN THIS CASE IS SEPTEMBER 30, 1954, THE EMPLOYEE'S PROMOTION ON APRIL 4, 1954, TO GRADE GS-13 AT $8,360 PER ANNUM, THE GRADE AND SALARY HE HELD AT THE TIME OF HIS SEPARATION BY REDUCTION IN FORCE, HAS THE PRACTICAL EFFECT OF RESTORATION FOR BACK-PAY COMPUTATION PURPOSES. THEREFORE, IN LINE WITH THE ABOVE QUOTATION, HE IS ENTITLED, ON AND AFTER APRIL 4, 1954, TO THE RATE OF $8,560, WHICH RATE TAKES INTO ACCOUNT THE PERIODIC INCREASE HE WOULD HAVE RECEIVED ON MARCH 28, 1954, IF HE HAD NEVER BEEN REMOVED.