B-129169, JULY 22, 1959, 39 COMP. GEN. 52
Highlights
CIVILIAN PERSONNEL - RESTORATION TO DUTY FOLLOWING SECURITY SUSPENSION AND REMOVALS - NONVETERANS - LEAVE CREDIT DECISIONS HOLDING THAT BACK PAY RIGHTS OF EMPLOYEES WHO ARE RESTORED TO DUTY AS RESULT OF THE DECISION IN COLE V. FOLLOWING REMOVAL OR SUSPENSION FROM NONSENSITIVE POSITIONS FOR NATIONAL SECURITY REASONS ARE FOR DETERMINATION UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24. SO THAT BACK PAY AND ANNUAL AND SICK LEAVE CREDIT FOR THE PERIOD OF REMOVAL OR SUSPENSION WERE DENIED TO EMPLOYEES WHO WERE NOT IN THE CLASSIFIED SERVICE OR WHO DID NOT HAVE VETERANS PREFERENCE WILL NO LONGER BE FOLLOWED IN VIEW OF THE RULING OF THE COURT OF CLAIMS IN LEINER V. THAT A NONVETERAN WAS ENTITLED TO BACK PAY UNDER THE 1950 ACT WITHOUT REGARD TO WHETHER HE WAS IN THE CLASSIFIED CIVIL SERVICE. 36 COMP.
B-129169, JULY 22, 1959, 39 COMP. GEN. 52
CIVILIAN PERSONNEL - RESTORATION TO DUTY FOLLOWING SECURITY SUSPENSION AND REMOVALS - NONVETERANS - LEAVE CREDIT DECISIONS HOLDING THAT BACK PAY RIGHTS OF EMPLOYEES WHO ARE RESTORED TO DUTY AS RESULT OF THE DECISION IN COLE V. YOUNG, 351 U.S. 536, FOLLOWING REMOVAL OR SUSPENSION FROM NONSENSITIVE POSITIONS FOR NATIONAL SECURITY REASONS ARE FOR DETERMINATION UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B), RATHER THAN UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, SO THAT BACK PAY AND ANNUAL AND SICK LEAVE CREDIT FOR THE PERIOD OF REMOVAL OR SUSPENSION WERE DENIED TO EMPLOYEES WHO WERE NOT IN THE CLASSIFIED SERVICE OR WHO DID NOT HAVE VETERANS PREFERENCE WILL NO LONGER BE FOLLOWED IN VIEW OF THE RULING OF THE COURT OF CLAIMS IN LEINER V. UNITED STATES, NO. 576-57, THAT A NONVETERAN WAS ENTITLED TO BACK PAY UNDER THE 1950 ACT WITHOUT REGARD TO WHETHER HE WAS IN THE CLASSIFIED CIVIL SERVICE. 36 COMP. GEN. 225; 37 ID. 506, OVERRULED. ALTHOUGH THE BACK PAY FORMULAS FOR EMPLOYEES RESTORED TO DUTY FOLLOWING UNJUSTIFIED SUSPENSIONS OR TERMINATIONS ARE THE SAME UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B), AND UNDER THE SECURITY SUSPENSION ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, ANNUAL AND SICK LEAVE, UP TO THE STATUTORY CEILINGS FOR PERIODS OF SUSPENSION OR TERMINATION, MAY BE CREDITED ONLY UNDER THE 1950 ACT; HENCE, FOR EMPLOYEES WHO ARE RESTORED TO DUTY AS A RESULT OF THE COLE V. YOUNG DECISION, THE DEPARTMENTS MAY GRANT ANNUAL AND SICK LEAVE CREDIT.
TO THE POSTMASTER GENERAL, JULY 22, 1959:
WE ADVISED YOU IN OUR DECISION OF SEPTEMBER 20, 1956, PUBLISHED AT 36 COMP. GEN. 225, THAT THE BACK PAY RIGHTS OF EMPLOYEES RESTORED TO DUTY AS A RESULT OF THE DECISION OF THE UNITED STATES SUPREME COURT IN COLE V. YOUNG, 351 U.S. 536, FOLLOWING THEIR SUSPENSION OR REMOVAL FOR NATIONAL SECURITY REASONS PURPORTEDLY UNDER AUTHORITY OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, AND EXECUTIVE ORDER NO. 10450, WERE FOR DETERMINATION UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B) (1), RATHER THAN UNDER THE 1950 STATUTE. SEE, ALSO, 37 COMP. GEN. 506. THE EFFECT OF THOSE DECISIONS WAS TO DENY BACK PAY IN THE CASES OF EMPLOYEES WHO WERE NOT IN THE CLASSIFIED SERVICE OR WHO DID NOT HAVE VETERANS PREFERENCE, AS WELL AS TO ELIMINATE CREDIT FOR ANNUAL AND SICK LEAVE WHICH WOULD HAVE ACCRUED BUT FOR THE SUSPENSION OR REMOVAL (31 COMP. GEN. 58; 35 ID. 121, 123).
OUR REASON FOR HOLDING AS WE DID WAS THAT IF, AS HELD IN COLE V. YOUNG, THE SUMMARY SUSPENSION AND REMOVAL PROCEDURES OF THE 1950 ACT DID NOT APPLY TO THE TYPE OF EMPLOYMENT INVOLVED (NONSENSITIVE), NEITHER DID THE BACK PAY PROVISIONS OF SUCH ACT. HOWEVER, ON OCTOBER 8, 1958, THE UNITED STATES COURT OF CLAIMS HELD IN THE CASE OF FRED LEINER V. UNITED STATES, C.1CLS. NO. 576-57, CONTRARY TO OUR DECISION, THAT THE PLAINTIFF, A NONVETERAN, WAS ENTITLED TO RECOVER BACK PAY UNDER THE 1950 ACT WITHOUT REGARD TO WHETHER HE WAS IN THE "CLASSIFIED CIVIL SERVICE.' THE GOVERNMENT'S MOTION FOR A REHEARING WAS DENIED ON FEBRUARY 11, 1959. THE DEPARTMENT OF JUSTICE HAS ADVISED US THAT NO FURTHER ACTION WILL BE TAKEN ON THE QUESTION OF LEGAL LIABILITY.
IN VIEW OF THE OUTCOME OF THE JUDICIAL PROCEEDINGS JUST MENTIONED, WE SHALL NO LONGER INSIST UPON THE POSITION WE TOOK IN THE DECISIONS IN 36 COMP. GEN. 225 AND 37 ID. 506.
SO FAR AS CONCERNS THE ONE CLAIM PENDING HERE ON REQUEST FOR RECONSIDERATION OF THE DISALLOWED PORTION (THE MAJOR PORTION PREVIOUSLY HAVING BEEN ALLOWED), THE CORRESPONDENCE OF RECORD INDICATES THE DISPOSITION OF YOUR DEPARTMENT TO AWARD BACK PAY FOR THE PERIOD OF SUSPENSION AND TERMINATION TO THE DATE OF RECEIPT OF THE LETTER OFFERING REINSTATEMENT; AND WE SHALL PROCEED TO SETTLE THE CLAIM ON THAT BASIS.
AS DISTINGUISHED FROM SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, SUPRA, THE 1950 ACT PERMITS THE CREDITING OF ANNUAL AND SICK LEAVE, UP TO STATUTORY CEILINGS, FOR PERIODS OF SUSPENSION OR TERMINATION FOR WHICH BACK PAY IS ALLOWABLE. 31 COMP. GEN. 58 AND 35 ID. 121, SUPRA; 38 ID. 249. CONSEQUENTLY, YOUR DEPARTMENT MAY CREDIT ANNUAL AND SICK LEAVE TO THE AFFECTED EMPLOYEES IN CONFORMITY WITH THOSE DECISIONS.
SINCE THE BACK PAY FORMULAS UNDER THE 1912 ACT, AS AMENDED, AND THE 1950 ACT ARE IN SUBSTANCE THE SAME, NO ADJUSTMENT OF COMPENSATION WILL BE REQUIRED IN THOSE CASES IN WHICH BACK PAY HAS ALREADY BEEN ALLOWED UNDER THE 1912 ACT, AS AMENDED.