B-130042, JAN. 29, 1957

B-130042, JAN. 29, 1957

TO MISS ALYSE KLEIN:

YOUR LETTER OF NOVEMBER 10, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED OCTOBER 31, 1956, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION COVERING THE PERIOD NOVEMBER 19, 1955, TO MARCH 18, 1956, WHILE SEPARATED FROM EMPLOYMENT WITH THE SIGNAL CORPS PICTORIAL CENTER, DEPARTMENT OF THE ARMY, LONG ISLAND CITY, NEW YORK.

ON NOVEMBER 19, 1955, YOU WERE SEPARATED FROM THE SERVICE PURSUANT TO A REDUCTION-IN-FORCE ACTION, AND YOUR NAME WAS PLACED ON THE REEMPLOYMENT PRIORITY LIST IN ACCORDANCE WITH APPLICABLE REGULATIONS. AT THE TIME YOU WERE SEPARATED YOU HELD THE POSITION OF FILM EDITOR, GRADE GS-5. YOUR CASE WAS REFERRED TO THE AREA PLACEMENT COORDINATOR BY THE SIGNAL CORPS PICTORIAL CENTER SINCE "PLACEMENT IS IMPOSSIBLE WITHIN THIS COMPETITIVE AREA.' ON NOVEMBER 23, 1955, YOU WERE OFFERED THE POSITION OF CLERK- STENOGRAPHER, GS-4, NORTH ATLANTIC DIVISION, CORPS OF ENGINEERS, AND YOU REJECTED THE OFFER BECAUSE YOU "DID NOT DESIRE CONSIDERATION FOR EMPLOYMENT AS A GS-4, UNTIL SUCH TIME AS SHE WAS SURE SHE COULD NOT SECURE A POSITION OFFER ON THE GS-5 LEVEL.' NO POSITION AT THE GS-5 LEVEL APPEARS TO HAVE BEEN AVAILABLE AND, WHILE THE RECORDS INDICATE THE DELAY IN OFFERING YOU A GS-4 MAY HAVE BEEN AT LEAST IN PART BECAUSE OF YOUR DOUBTS ABOUT ACCEPTING THE LOWER GRADE, THE DEPARTMENT OF THE ARMY HAS RECOGNIZED AN OBLIGATION TO ALLOW COMPENSATION FOR THE PERIOD OF DELAY. YOU APPEALED TO THE CIVIL SERVICE COMMISSION AND BY LETTER DATED MARCH 8, 1956, IT RECOMMENDED (1) THAT YOUR REDUCTION-IN-FORCE NOTICE BE CANCELED AS OF ITS EFFECTIVE DATE, AND (2) THAT A REASSIGNMENT BE MADE WITHOUT REGARD TO YOUR STATEMENT THAT YOU WERE WILLING TO ACCEPT NOTHING LESS THAN A GRADE 5 POSITION. HOWEVER, BY LETTER DATED APRIL 11, 1956, THE COMMISSION WITHDREW ITS RECOMMENDATION THAT YOUR REDUCTION-IN-FORCE NOTICE BE CANCELED AND, INSTEAD, RECOMMENDED THAT YOU BE OFFERED A SPECIFIC REASSIGNMENT IN ACCORDANCE WITH WHAT POSITION OR POSITIONS PROPERLY WERE AVAILABLE TO YOU DURING YOUR NOTICE PERIOD. THE VARIOUS LETTERS FROM THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, CONCERNING YOUR CASE MAKE NO MENTION OF THE OFFER OF REASSIGNMENT OF NOVEMBER 23, 1955, AND, THEREFORE, ON THE EXISTING RECORD WE CANNOT ASSUME THAT THE BOARD CONSIDERS THE OFFER AS INVALID. IT FURTHER APPEARS THAT YOU WERE ADMINISTRATIVELY PAID FOR THE PERIOD FROM NOVEMBER 20 THROUGH NOVEMBER 23, 1955, AT YOUR GS-5 RATE, $4,480 PER ANNUM, AND REEMPLOYED IN A GRADE GS-4 POSITION EFFECTIVE MARCH 19, 1956.

IT IS AN ESTABLISHED RULE, IN THE ABSENCE OF A STATUTE OTHERWISE PROVIDING, THAT NO COMPENSATION MAY BE PAID FOR WORK DAYS UNLESS ONE PERFORMS DUTY OR IS IN A LEAVE WITH PAY STATUS. THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, PROVIDES THAT ANY PERSON REMOVED IN A REDUCTION-IN-FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION FOR THE PERIOD HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED. HOWEVER, A RIGHT TO COMPENSATION, UNDER THAT STATUTE, IS CONTINGENT UPON WHETHER THE EMPLOYEE'S REINSTATEMENT OR RESTORATION IN THE SERVICE IS ON THE GROUND THAT HIS REMOVAL THEREFROM WAS "UNJUSTIFIED OR UNWARRANTED.'

UPON THE BASIS OF THE RECORD AVAILABLE HERE, THE CIVIL SERVICE COMMISSION DID NOT FIND THAT YOUR REMOVAL FROM THE SERVICE ON NOVEMBER 23, 1955, WAS UNJUSTIFIED OR UNWARRANTED. RATHER, THE SITUATION IS ONE IN WHICH YOU LOST AN OPPORTUNITY FOR APPOINTMENT IN THE FEDERAL SERVICE. THAT IS, BY VIRTUE OF YOUR ACTIONS--- STATED TO HAVE BEEN INADVERTENTLY TAKEN IN THE MATTER--- YOUR REASSIGNMENT TO THE GRADE GS 4 POSITION WAS DELAYED BEYOND THE DATE ON WHICH IT ORDINARILY WOULD HAVE BEEN EFFECTED. CONSEQUENTLY, THE PAYMENT PROVISIONS OF THE ACT OF JUNE 10, 1948, ARE NOT CONSIDERED APPLICABLE TO YOUR CLAIM AND WE ARE UNAWARE OF ANY OTHER STATUTE THAT WOULD PERMIT ITS FAVORABLE CONSIDERATION ON THE BASIS OF THE PRESENT RECORD. IN THAT REGARD WE WOULD LIKE TO POINT OUT THAT THE CIVIL SERVICE COMMISSION AND THE EMPLOYING AGENCY, RATHER THAN THE GENERAL ACCOUNTING OFFICE, ARE CHARGED WITH THE DUTY OF DETERMINING WHETHER REMOVALS ARE UNJUSTIFIED OR UNWARRANTED AND OF DIRECTING RESTORATIONS.

IN THE CIRCUMSTANCES, OUR SETTLEMENT OF OCTOBER 31, 1956, WAS CORRECT AND IS SUSTAINED. IF YOU OBTAIN ADDITIONAL DATA FROM THE BOARD OF APPEALS AND REVIEW WHICH YOU BELIEVE OVERCOMES OUR REASONS FOR DISALLOWING YOUR CLAIM, HOWEVER, YOUR CLAIM WILL BE RECONSIDERED AT YOUR REQUEST.

ALSO CONCERNING FURTHER PROCEEDINGS IN THE MATTER YOUR ATTENTION IS INVITED TO 28 U.S.C. 1491 PERTAINING TO SUITS COGNIZABLE IN THE UNITED STATES COURT OF CLAIMS.