B-123447, MAY 2, 1955, 34 COMP. GEN. 559

B-123447, MAY 2, 1955, 34 COMP. GEN. 559

OFFICERS AND EMPLOYEES - SEPARATION FROM SERVICE - FAILURE TO REEMPLOY CAREER EMPLOYEES TO VACANT POSITIONS THE ADMINISTRATIVE FAILURE TO IMMEDIATELY APPOINT TO A VACANT POSITION A CAREER EMPLOYEE WHO HAD BEEN SEPARATED FROM THE SERVICE BY REDUCTION IN FORCE, AND WHOSE NAME WAS ON A REEMPLOYMENT PRIORITY REGISTER, DOES NOT CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION FROM THE SERVICE WITHIN THE MEANING OF THE BACK PAY ACT OF AUGUST 24, 1912, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO L. P. KELLS, PUBLIC HOUSING ADMINISTRATION, MAY 2, 955:

YOUR LETTER OF MARCH 24, 1955, REQUESTS OUR DECISION WHETHER PAYMENT IS AUTHORIZED UPON THE ACCOMPANYING VOUCHER COVERING COMPENSATION TO MRS. ALICE HYMAN FROM MARCH 19, 1954, TO SEPTEMBER 27, 1954, IN GS-9 AT THE MAXIMUM SCHEDULED SALARY RATE OF THAT GRADE.

IT APPEARS THAT ON NOVEMBER 30, 1953, MRS. HYMAN WAS SEPARATED FROM THE SERVICE PURSUANT TO A REDUCTION-IN-FORCE ACTION, AND HER NAME WAS PLACED ON THE REEMPLOYMENT PRIORITY LIST IN ACCORDANCE WITH APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION. AT THE TIME OF HER SEPARATION MRS. HYMAN HELD THE POSITION OF HOUSING MANAGER, GRADE GS-7 (G). ON MARCH 19, 1954, THE POSITION OF RENTAL AND OCCUPANCY ASSISTANT, PUBLIC HOUSING ADMINISTRATION, GRADE GS-9, WAS FILLED BY TRANSFER OF AN EMPLOYEE OF ANOTHER AGENCY. MRS. HYMAN APPEALED THIS ACTION BUT THE ADMINISTRATIVE DETERMINATION NOT TO APPOINT HER TO THAT POSITION WAS UPHELD BY THE CIVIL SERVICE COMMISSION, APPEALS EXAMINING OFFICE, BY DECISION DATED SEPTEMBER 29, 1954. MEANWHILE, ON SEPTEMBER 27, 1954, SHE WAS REEMPLOYED AS MANAGEMENT ASSISTANT, GRADE GS-9 (G). UPON MRS. HYMAN'S APPEAL FROM THE DECISION OF SEPTEMBER 29, 1954, THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, REVERSED THAT DECISION AND UNDER DATE OF FEBRUARY 7, 1955, RECOMMENDED THAT HER APPOINTMENT TO GRADE GS-9 BE EFFECTED RETROACTIVE TO MARCH 19, 1954.

THE FEBRUARY 7, 1955, ACTION OF THE CIVIL SERVICE COMMISSION WAS BASED UPON THE PROVISIONS OF CIVIL SERVICE REGULATION 20.7, Z1-289, FEDERAL PERSONNEL MANUAL, WHICH READS:

SEC. 20.7. REEMPLOYMENT PRIORITY (A) REEMPLOYMENT PRIORITY LIST. EACH AGENCY SHALL ESTABLISH AND MAINTAIN A REEMPLOYMENT PRIORITY LIST FOR EACH COMMUTING AREA FROM WHICH CAREER OR CAREER-CONDITIONAL EMPLOYEES, HAVE BEEN SEPARATED IN REDUCTIONS IN FORCE, FROM COMPETITIVE POSITIONS ON THE BASIS OF NOTICES AS PROVIDED IN SECTION 20.6. EACH OF THESE EMPLOYEES SHALL HAVE HIS NAME ENTERED ON THE REEMPLOYMENT PRIORITY LIST FOR ALL COMPETITIVE POSITIONS IN THE COMMUTING AREA FOR WHICH HE IS QUALIFIED AND IS AVAILABLE, AND CONTINUED ON SUCH LIST FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SUCH NOTICE. HIS NAME MAY BE DELETED FROM SUCH LIST UPON HIS SIGNED WRITTEN REQUEST, UPON HIS ACCEPTANCE OF A NONTEMPORARY POSITION IN ANY FEDERAL AGENCY, OR IF HE DECLINES REEMPLOYMENT TO A NONTEMPORARY POSITION IN THE COMPETITIVE SERVICE EQUIVALENT IN GRADE AND SALARY TO THE POSITION FROM WHICH SEPARATED BY REDUCTION IN FORCE.

(B) RESTRICTION IN FILLING POSITIONS. NO POSITION IN THE COMPETITIVE SERVICE, FOR WHICH THERE IS A QUALIFIED PERSON AVAILABLE ON THE REEMPLOYMENT PRIORITY LIST, MAY BE FILLED BY THE TRANSFER OF AN EMPLOYEE OF A DIFFERENT AGENCY, OR BY THE NEW APPOINTMENT OF ANY PERSON EXCEPT A QUALIFIED TEN-POINT PREFERENCE ELIGIBLE. FURTHERMORE, NO SUCH POSITION MAY BE FILLED BY THE REEMPLOYMENT OF A PERSON WHO IS NOT ON THE REEMPLOYMENT PRIORITY LIST, UNLESS SUCH PERSON IS A PREFERENCE ELIGIBLE.

THE QUESTION IS PRESENTED AS TO WHETHER THE EMPLOYEE IS ENTITLED TO COMPENSATION FOR THE PERIOD COVERED BY THE VOUCHER UNDER THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, WHICH AUTHORIZES THE PAYMENT OF COMPENSATION COVERING ANY PERIOD OF UNWARRANTED AND UNJUSTIFIED REMOVAL OR SUSPENSION WITHOUT PAY. IT IS SUGGESTED IN YOUR LETTER THAT OUR DECISION OF DECEMBER 29, 1954, 34 COMP. GEN. 303, RELATIVE TO THE CASE OF MR. LEO A. ROTH, MIGHT PROVIDE A BASIS FOR THE ALLOWANCE OF BACK PAY IN THE INSTANT SITUATION.

IN THE ROTH CASE, THE REFUSAL OF THE DEPARTMENT OF JUSTICE TO RECOGNIZE MR. ROTH'S REEMPLOYMENT RIGHTS IN THAT DEPARTMENT UPON TERMINATION OF HIS SERVICES WITH OPS, TO WHICH HE HAD TRANSFERRED UNDER CONDITIONS GIVING HIM REEMPLOYMENT RIGHTS IN THE DEPARTMENT OF JUSTICE, RESULTED IN HIS ACTUAL SEPARATION FROM THE FEDERAL SERVICE. IN THE DECISION OF DECEMBER 29, 1954, IT WAS HELD THAT, UNDER SUCH CIRCUMSTANCES, THE REFUSAL TO REEMPLOY MR. ROTH CONSTITUTED AN UNJUSTIFIED AND UNWARRANTED REMOVAL OR SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THOSE TERMS AS USED IN THE ACT OF AUGUST 29, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652.

IN THE PRESENT CASE IT APPEARS THAT THE EMPLOYEE WAS SEPARATED FROM THE FEDERAL SERVICE PROPERLY BY REDUCTION-IN-FORCE ON NOVEMBER 30, 1953. UNDER THE QUOTED CIVIL SERVICE REGULATIONS SHE WAS ENTITLED TO CERTAIN PREFERENCE RESPECTING REEMPLOYMENT IN THE PUBLIC HOUSING ADMINISTRATION SHOULD A VACANCY OCCUR AND CONTINUE AVAILABLE AND FOR WHICH SHE WAS FOUND QUALIFIED. IN THOSE CIRCUMSTANCES IT CANNOT BE SAID THAT THE ADMINISTRATIVE FAILURE TO PLACE THE EMPLOYEE IN GS-9 IMMEDIATELY UPON THE POSITION BECOMING VACANT, AND PRIOR TO FINAL DETERMINATION OF HER QUALIFICATIONS THEREFOR, IN ANY WAY CONSTITUTED AN UNJUSTIFIED REMOVAL OR SEPARATION FROM THE SERVICE, AS SHE WAS NOT IN THE SERVICE AT THAT TIME. RATHER, THE SITUATION IS ONE IN WHICH THE EMPLOYEE LOST THE OPPORTUNITY FOR APPOINTMENT IN THE FEDERAL SERVICE. THAT IS, BY VIRTUE OF THE ADMINISTRATIVE ACTION, THE DATE OF HER APPOINTMENT WAS DELAYED BEYOND THE DATE ON WHICH IT OTHERWISE COULD HAVE BEEN EFFECTED UNDER THE REGULATIONS.

THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SPECIFICALLY IS DIRECTED TO THE MATTER OF BACK PAY IN SITUATIONS INVOLVING SEPARATIONS AND SUSPENSIONS FROM DUTY. CONSEQUENTLY, THE PAYMENT PROVISIONS OF THAT ACT ARE NOT CONSIDERED APPLICABLE TO THE SITUATION HERE INVOLVED. ON THE CONTRARY, THERE APPEARS FOR APPLICATION HERE THE ESTABLISHED RULE THAT APPROPRIATIONS FOR PERSONAL SERVICES ARE NOT AVAILABLE FOR PAYMENTS COVERING PERIODS WHEN NO SERVICES ARE RENDERED, UNLESS THE ABSENCE IS CHARGEABLE TO AUTHORIZED LEAVE OR SUCH PAYMENT SPECIFICALLY IS AUTHORIZED BY SOME SPECIAL STATUTE SUCH AS THE ABOVE ACT OF JUNE 10, 1948.