B-125161, NOV. 9, 1955

B-125161: Nov 9, 1955

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AN EMPLOYEE OF THIS ADMINISTRATION WAS REDUCED IN GRADE. DERN WAS RETROACTIVELY RESTORED. THAT IS TO SAY. HE SHOULD BE ALLOWED THE DIFFERENCE IN SALARY (INCLUDING PERIODIC STEP INCREASES) BETWEEN WHAT HE WOULD HAVE RECEIVED BUT FOR HIS WRONGFUL DEMOTION AND WHAT HE ACTUALLY DID RECEIVE. IN ACCORDANCE WITH THE OVER-RULED DECISIONS WERE NOT PAID ANY BACK PAY. NOTWITHSTANDING THE FACT THE EMPLOYEES HAVE MADE NO CLAIM FOR BACK PAY? "/C) MAY YOUR ANSWERS TO THE ABOVE BE APPLIED ALSO TO THOSE CASES COMING UNDER THE PURVIEW OF B-121568? THE QUESTIONS ARE ANSWERED AS FOLLOWS: (A) MR. (C) OUR DECISION B-121568 RELATES TO CASES OF EMPLOYEES RESTORED BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944 AND THE "BACK PAY" IS FOR DETERMINATION UNDER THE ACT OF AUGUST 24.

B-125161, NOV. 9, 1955

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

THE ACTING ADMINISTRATOR'S LETTER OF AUGUST 11, 1955, REFERS TO OUR DECISIONS OF MAY 3, 1955, B-121070 (34 COMP. GEN. 561), AND MAY 4, 1955, B -121568 (34 COMP. GEN. 568), CONCERNING RETROACTIVE COMPENSATION OF EMPLOYEES ERRONEOUSLY REMOVED OR DEMOTED, AND REQUESTS OUR ADVICE REGARDING THE APPLICATION OF THOSE DECISIONS TO A FACTUAL SITUATION REPORTED IN HIS LETTER AS FOLLOWS:

"MR. J. MARKER DERN, AN EMPLOYEE OF THIS ADMINISTRATION WAS REDUCED IN GRADE, AS A RESULT OF A REDUCTION IN FORCE ACTION, FROM A GS-13, $8760 PER ANNUM TO A GS-12 $8040 PER ANNUM, EFFECTIVE MAY 1, 1954. MR. DERN APPEALED THIS ACTION TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, AND ON DECEMBER 13, 1954 THE COMMISSION ORDERED MR. DERN RESTORED TO HIS FORMER POSITION IN GRADE GS-13. ON DECEMBER 21, 1954 MR. DERN WAS RETROACTIVELY RESTORED, EFFECTIVE MAY 1, 1954, TO THE GS-13 POSITION, $8760 PER ANNUM, IN ACCORDANCE WITH THE ACTION OF THE CIVIL SERVICE COMMISSION. MR. DERN HAS CLAIMED ENTITLEMENT TO RETROACTIVE ADJUSTMENT IN HIS COMPENSATION ON THE BASIS OF THE RULING IN B 121070.'

MR. DERN'S CLAIM MAY BE ALLOWED ADMINISTRATIVELY IN ACCORDANCE WITH THE RULE STATED IN THE CASE OF ADLER ET AL. V. UNITED STATES, 129 C.CLS. 150, CITED IN OUR DECISION B-121070; THAT IS TO SAY, HE SHOULD BE ALLOWED THE DIFFERENCE IN SALARY (INCLUDING PERIODIC STEP INCREASES) BETWEEN WHAT HE WOULD HAVE RECEIVED BUT FOR HIS WRONGFUL DEMOTION AND WHAT HE ACTUALLY DID RECEIVE.

THE ACTING ADMINISTRATOR'S LETTER FURTHER REFERS TO THE MODIFICATIONS EFFECTED IN OUR EARLIER DECISIONS BY THOSE RENDERED IN 34 COMP. GEN. 561 AND 564, AND PRESENTS FOR ANSWER THE FOLLOWING QUESTIONS:

"/A) SHOULD MR. DERN'S COMPENSATION, FOR THE PERIOD OF HIS DEMOTION, MAY 1, 1954 TO DECEMBER 21, 1954, BE ADJUSTED IN ACCORDANCE WITH THE RULING IN B-121070, OR SHOULD MR. DERN AND OTHER EMPLOYEES IN SIMILAR CIRCUMSTANCES BE ADVISED TO FILE CLAIM FOR RETROACTIVE ADJUSTMENT OF SALARY WITH THE GENERAL ACCOUNTING OFFICE?

"/B) IN THOSE CASES WHERE EMPLOYEES SUCCESSFULLY APPEALED THEIR DEMOTIONS AND HAD BEEN RESTORED TO THEIR FORMER HIGHER POSITIONS PRIOR TO THE ISSUANCE OF B-121070, BUT IN ACCORDANCE WITH THE OVER-RULED DECISIONS WERE NOT PAID ANY BACK PAY, SHOULD ADJUSTMENT NOW BE MADE ON THE BASIS OF THE CITED DECISION, NOTWITHSTANDING THE FACT THE EMPLOYEES HAVE MADE NO CLAIM FOR BACK PAY?

"/C) MAY YOUR ANSWERS TO THE ABOVE BE APPLIED ALSO TO THOSE CASES COMING UNDER THE PURVIEW OF B-121568?

THE QUESTIONS ARE ANSWERED AS FOLLOWS:

(A) MR. DERN'S AND SIMILAR CLAIMS, IF OTHERWISE PROPER, MAY BE ALLOWED ADMINISTRATIVELY IN ACCORDANCE WITH THE FOREGOING. BUT, AS TO LAPSED APPROPRIATIONS, SEE THE SURPLUS FUND-CERTIFIED CLAIMS ACT OF 1949, 31 U.S.C. 712 (A) AND (B).

(B) NEITHER OUR DECISION B-121070 NOR THAT HEREIN RENDERED CONTEMPLATES ADMINISTRATIVE REOPENING OF CLOSED CASES; HOWEVER, IF EMPLOYEES PRESENT TIMELY REQUESTS FOR REVIEW OF PRIOR ADVERSE ADMINISTRATIVE ACTIONS, THEIR CLAIMS MAY BE ADMINISTRATIVELY ALLOWED IF OTHERWISE PROPER OR MAY BE REFERRED HERE FOR DIRECT SETTLEMENT BY THE CLAIMS DIVISION.

(C) OUR DECISION B-121568 RELATES TO CASES OF EMPLOYEES RESTORED BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944 AND THE "BACK PAY" IS FOR DETERMINATION UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. OTHERWISE, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.