B-126039, JAN. 31, 1956

B-126039, JAN. 31, 1956

TO MR. FRANCIS L. ENEVOLDSEN:

YOUR LETTER OF OCTOBER 26, 1955, REQUESTS REVIEW OF OUR SETTLEMENT OF JULY 18, 1955, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE COMPENSATION, INCLUDING CERTAIN WITHIN-GRADE SALARY INCREASES, AND THE RESTORATION TO YOUR CREDIT OF ANNUAL LEAVE ADMINISTRATIVELY REQUIRED TO BE TAKEN INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, DENVER, COLORADO.

THE ESSENTIAL FACTS OF YOUR CASE ARE BRIEFLY STATED HERE. IN 1948 YOU OCCUPIED THE POSITION OF PROCUREMENT STATUS ANALYST, CAF-9, WITH THE DENVER OFFICE OF THE BUREAU OF RECLAMATION. ON OCTOBER 3 OF THAT YEAR YOU RECEIVED A WITHIN-GRADE SALARY ADVANCEMENT INCREASING YOUR COMPENSATION FROM $4,605 TO $4,730.40 PER ANNUM. YOU MET THE SERVICE REQUIREMENT FOR YOUR NEXT PERIODIC PAY INCREASE IN OCTOBER 1949. HOWEVER, WHILE YOUR EFFICIENCY RATING FOR THE PERIOD APRIL 1, 1948, TO MARCH 31, 1949, WAS "GOOD," OR BETTER, THE PERIODIC PAY INCREASE OF OCTOBER 1949 WAS ADMINISTRATIVELY WITHHELD BECAUSE THE RESPONSIBLE OFFICIAL REFUSED TO CERTIFY YOUR SERVICES AND CONDUCT AS SATISFACTORY. AN UNSATISFACTORY EFFICIENCY RATING GIVEN YOU FOR THE RATING PERIOD ENDING MARCH 31, 1950, UPON APPEAL, WAS CHANGED TO "GOOD.' AGAIN, HOWEVER, THE NECESSARY CERTIFICATE OF SATISFACTORY SERVICE AND CONDUCT WAS NOT ACCOMPLISHED BY THE RESPONSIBLE ADMINISTRATIVE OFFICER.

ON JUNE 19, 1950, YOU WERE PLACED IN AN ANNUAL LEAVE STATUS, AND ON AUGUST 1, 1950, WERE RETURNED TO ACTIVE DUTY. ON AUGUST 31, 1950, YOU WERE NOTIFIED THAT YOUR POSITION WAS TO BE ABOLISHED AND THAT YOU WOULD BE AFFECTED BY A REDUCTION IN FORCE, EFFECTIVE AT THE CLOSE OF BUSINESS, SEPTEMBER 30, 1950. IN PROCESSING THE REDUCTION IN FORCE YOU WERE OFFERED, BUT DECLINED, A POSITION OF ADMINISTRATIVE ASSISTANT, GS-7, $3,950 PER ANNUM. A LETTER DATED SEPTEMBER 19, 1950, FROM THE CHIEF, PERSONNEL FIELD OFFICE, INFORMED YOU THAT YOUR ACTIVE DUTY WOULD TERMINATE SEPTEMBER 30, 1950, FOLLOWING WHICH YOU WOULD BE GRANTED ALL YOUR ACCRUED ANNUAL LEAVE, AND THEN PLACED IN A FURLOUGH STATUS. YOU APPEALED THE ADMINISTRATIVE ACTION, BY A LETTER DATED SEPTEMBER 27, 1950, TO THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION WHICH IN A DECISION OF NOVEMBER 2, 1950, FOUND THE BUREAU OF RECLAMATION HAD FULLY COMPLIED WITH THE REDUCTION-IN-FORCE REGULATIONS. THEREAFTER, ON NOVEMBER 21, 1950, YOU WERE PLACED IN A FURLOUGH STATUS, AND ON AUGUST 30, 1951, DROPPED FROM THE ROLLS.

YOUR CLAIM BEFORE OUR OFFICE IS FOR THE ADDITIONAL COMPENSATION YOU WOULD HAVE RECEIVED BUT FOR THE ADMINISTRATIVE DENIAL OF WITHIN GRADE SALARY ADVANCEMENTS IN OCTOBER 1949, AND OCTOBER 1950, THE ANNUAL LEAVE YOU WERE REQUIRED TO TAKE BEFORE AND AFTER JUNE 15, 1950, AND BACK PAY INCIDENT TO YOUR SEPARATION.

THE CLASSIFICATION ACT OF 1923, AS AMENDED, 59 STAT. 295, AND THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, PRESCRIBE, IN ADDITION TO THE TIME IN GRADE REQUIREMENT, THE FOLLOWING CONDITIONS FOR PERIODIC SALARY ADVANCEMENTS: (A) THAT NO EQUIVALENT INCREASE IN COMPENSATION WAS RECEIVED WITHIN THE PERIOD, (B) THAT THE EMPLOYEE'S CURRENT EFFICIENCY RATING IS "GOOD" OR BETTER, AND (C) THAT THE SERVICE AND CONDUCT OF THE EMPLOYEE ARE CERTIFIED AS BEING OTHERWISE SATISFACTORY BY THE DEPARTMENT.

YOUR ENTITLEMENT TO THE SALARY INCREASES CLAIMED TURNS UPON THE STATUTORY REQUIREMENT THAT THE DEPARTMENT CERTIFY YOUR SERVICES AND CONDUCT AS OTHERWISE SATISFACTORY--- THE OTHER CONDITIONS HAVING BEEN MET. BY THE TERMS OF THE STATUTES REFERRED TO THE CERTIFICATION MUST BE THAT OF THE EMPLOYING AGENCY. IT INVOLVES AN AFFIRMATIVE EXERCISE OF ADMINISTRATIVE DISCRETION WHICH IS CONCLUSIVE ON THIS OFFICE. SEE 5 CFR (1949 ED.) 25.241 (C). THE RECORD DISCLOSES THAT IN OCTOBER 1949, AND SUBSEQUENTLY, THE EMPLOYING AGENCY DID NOT EXECUTE THE NECESSARY CERTIFICATIONS. WHILE YOU ADVANCE THE VIEW THAT THE LETTER OF APRIL 11, 1955, WHICH YOU RECEIVED FROM THE BUREAU IS TANTAMOUNT TO A CERTIFICATION OF SATISFACTORY SERVICE AND CONDUCT, ANY SUCH IMPLICATION IS NEGATIVED BY THE LETTER ITSELF AND BY THE BUREAU'S REPORT ON YOUR CASE, DATED JUNE 28, 1955. IN THE ABSENCE OF THE REQUIRED CERTIFICATIONS, WE ARE PRECLUDED FROM ALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION, BASED ON YOUR ASSERTED ENTITLEMENT TO WITHIN GRADE SALARY INCREASES IN 1949 AND 1950.

THE SECOND PART OF YOUR CLAIM IS UNDERSTOOD TO REFER TO THE PERIOD JUNE 19 TO AUGUST 1, 1950, WHEN YOU WERE PLACED IN AN ANNUAL LEAVE STATUS BY THE DENVER OFFICE. YOU SEEK RECREDIT OF THE LEAVE CHARGED FOR THAT PERIOD. HOWEVER, THE EXISTENCE OF ADMINISTRATIVE AUTHORITY TO PLACE AN EMPLOYEE IN AN ANNUAL LEAVE STATUS IS WELL RECOGNIZED. THUS, IN A DECISION OF MARCH 17, 1949, TO THE SECRETARY OF COMMERCE, 28 COMP. GEN. 526, IT WAS HELD, QUOTING FROM THE SYLLABUS:

"UNDER THE AUTHORITY IN SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AN EMPLOYEE MAY BE PLACED IN AN ANNUAL LEAVE STATUS WITHOUT HIS CONSENT IN ALL SITUATIONS WHERE THE ADMINISTRATIVE OFFICE CONSIDERS IT DESIRABLE FROM AN OFFICIAL STANDPOINT THAT THE EMPLOYEE NOT BE CONTINUED IN AN ACTIVE DUTY STATUS. 19 COMP. GEN. 955, AMPLIFIED.' OR FOR PAYMENT IN LIEU THEREOF.

YOUR SEPARATION FROM SERVICE WAS ACCOMPLISHED UNDER SECTION 12 OF THE ACT OF JUNE 27, 1944, 58 STAT. 387, AS AMENDED, 5 U.S.C. 861, PROVIDING THAT THE RELEASE OF PERSONNEL IN A REDUCTION IN FORCE SHALL BE IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS. SECTION 19 OF THE ACT, 5 U.S.C. 868, PROVIDES THAT IT SHALL BE THE AUTHORITY AND DUTY OF THE CIVIL SERVICE COMMISSION IN ALL CASES UNDER THE CLASSIFIED CIVIL SERVICE TO MAKE AND ENFORCE APPROPRIATE RULES AND REGULATIONS TO CARRY INTO FULL EFFECT THE PROVISIONS, INTENT, AND PURPOSE OF THAT ACT. PURSUANT TO THE REGULATIONS PROMULGATED UNDER THE STATUTE REFERRED TO THE COMMISSION MADE AN ADVERSE FINDING IN YOUR CASE, AND THAT FINDING IS CONCLUSIVE UPON OUR OFFICE.

ACCORDINGLY, THE SETTLEMENT OF JULY 18, 1955, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.