B-130156, FEBRUARY 18, 1957, 36 COMP. GEN. 598

B-130156, FEBRUARY 18, 1957, 36 COMP. GEN. 598

CIVILIAN PERSONNEL - COMPENSATION DEMOTIONS - RESTORATION - BACK PAY RIGHTS THE DEMOTION OF A NONVETERAN EMPLOYEE WITH COMPETITIVE STATUS FROM A CLASSIFIED POSITION AND THE SUBSEQUENT RESTORATION ACTION RECOMMENDED BY CIVIL SERVICE COMMISSION, ON THE BASIS THAT THE DEMOTION WAS PROCEDURALLY DEFECTIVE FOR FAILURE TO COMPLY WITH THE RETENTION REQUIREMENTS OF Z1-242, FEDERAL PERSONNEL MANUAL, DOES NOT MAKE THE DEMOTION A "DISMISSAL OR REMOVAL" WITHIN THE MEANING OF THE BACK PAY STATUTES, 5 U.S.C. 652 (B) (1) AND 652 (B) (2); AND IN THE ABSENCE OF ANY STATUTE GIVING SUCH CORRECTIVE ACTION RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION MANDATORY EFFECT, THE EMPLOYEE IS NOT ENTITLED TO BACK PAY FOR THE PERIOD OF THE DEMOTION.

TO THE SECRETARY OF AGRICULTURE, FEBRUARY 18, 1957:

THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF DECEMBER 20, 1956, REQUESTS OUR DECISION WHETHER YOUR DEPARTMENT IS AUTHORIZED TO COMPENSATE AN EMPLOYEE FOR A PERIOD OF DEMOTION UNDER THE CIRCUMSTANCES THEREIN RECITED, AS FOLLOWS:

THE EMPLOYEE, A NONVETERAN, WITH COMPETITIVE STATUS, OCCUPIED A POSITION IN THE EXCEPTED SERVICE FROM OCTOBER 8, 1947, TO JULY 1, 1951, WHEN HE WAS TRANSFERRED FROM A GS-14 (EXCEPTED) POSITION TO A GS 15 POSITION. APRIL 9, 1954, A STANDARD FORM 50 "CONVERSION" ACTION WAS PROCESSED EFFECTIVE AUGUST 26, 1953, IN COMPLIANCE WITH CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 744 ISSUED MARCH 3, 1954, REQUIRING SUCH ACTION WITH RESPECT TO COMPETITIVE OR EXCEPTED POSITIONS PLACED IN SCHEDULES A, B, OR C. ON SEPTEMBER 12, 1954, THE EMPLOYEE WAS DEMOTED WITHOUT COMPLIANCE WITH THE PROVISIONS OF PART 9 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION TO A GS-13 POSITION IN THE COMPETITIVE SERVICE. APPEAL TO THE CIVIL SERVICE COMMISSION, THE BOARD OF APPEALS AND REVIEW HELD THAT THE GS-15 POSITION TO WHICH THE EMPLOYEE WAS TRANSFERRED ON JULY 1, 1951, WAS IN THE COMPETITIVE SERVICE. THE BOARD FURTHER STATED THAT INASMUCH AS THE INDIVIDUAL WAS AN EMPLOYEE WITH COMPETITIVE STATUS SERVING IN A COMPETITIVE POSITION THE STANDARD FORM 50 PROCESSED ON APRIL 9, 1954, EFFECTIVE AUGUST 26, 1953, DID NOT REMOVE THE EMPLOYEE FROM THE CLASSIFIED CIVIL SERVICE. THEREFORE, THE BOARD RULED THAT THE DEMOTION ON SEPTEMBER 12, 1954, TO THE GS-13 POSITION IN THE COMPETITIVE SERVICE WAS PROCEDURALLY DEFECTIVE SINCE THERE WAS LACK OF COMPLIANCE WITH CIVIL SERVICE COMMISSION REGULATION 9.102 (A) (1). THE COMMISSION ISSUED INSTRUCTIONS ON MAY 25, 1956, THAT THE EMPLOYEE BE RESTORED RETROACTIVELY AS OF SEPTEMBER 12, 1954, TO THE GS-15 POSITION, WHICH ACTION HAS BEEN TAKEN.

THE QUESTION PRESENTED FOR OUR DECISION THUS RELATES TO A DEMOTION FROM ONE POSITION TO ANOTHER WITHIN THE CLASSIFIED CIVIL SERVICE AND NOT TO A REMOVAL OR SUSPENSION WITHOUT PAY.

THE "BACK PAY" PROVISIONS OF SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B) (1), SPECIFICALLY RELATE TO ANY PERSON ,REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A)," NO MENTION OF DEMOTION, THAT IS, REDUCTION IN GRADE OR COMPENSATION, BEING MADE. WE HAVE CONSTRUED THOSE PROVISIONS AS NOT APPLYING IN DEMOTION CASES. 28 COMP. GEN. 200, 205. SEE ALSO GREGORY V. UNITED STATES, 123 C.1CLS. 794, 800, CONCERNING THE SIMILAR PROVISIONS OF PARAGRAPH (2) OF SUBSECTION (B), 5 U.S.C. 562 (B) (2). IT SHOULD BE NOTED THAT BOTH OUR DECISION AND THE DECISION OF THE COURT OF CLAIMS JUST CITED REJECTED THE SUGGESTION THAT, FOR PURPOSES OF APPLYING THE "BACK PAY" AMENDMENTS OF THE 1948 STATUTE, DEMOTIONS CONSTITUTE DISMISSAL OR REMOVAL FROM THE POSITION FROM WHICH DEMOTED. OUR ATTENTION HAS NOT BEEN DIRECTED TO ANY CHANGE IN THE LAW OR JUDICIAL DECISIONS WHICH WOULD WARRANT US IN TAKING A DIFFERENT VIEW OF THE MATTER AT THIS TIME. CF. ADLER ET AL. V. UNITED STATES, 129 C.1CLS. 150, 153.

IT IS TRUE THAT WE HAVE ALLOWED CLAIMS FOR "BACK PAY" IN CERTAIN CASES OF EMPLOYEES WHO WERE CHANGED FROM HIGHER TO LOWER GRADES. SEE, FOR EXAMPLE, 34 COMP. GEN. 561. HOWEVER, THOSE CASES FOR THE MOST PART HAVE INVOLVED VETERANS PREFERENCE EMPLOYEES AFFECTED BY MANDATORY RETROACTIVE RESTORATION ORDERS OF THE CIVIL SERVICE COMMISSION UNDER THE AUTHORITY OF SECTIONS 14 AND 19 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863 AND 868, RESPECTIVELY. OTHER CASES INVOLVING NONVETERAN EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE HAVE RELATED TO REDUCTION-IN- FORCE MATTERS UNDER SECTION 12 OF THE VETERANS PREFERENCE ACT OF 1944, 5 U.S.C. 861, AND THE RETENTION PREFERENCE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT THERETO, TO WHICH SECTION 19 OF THE ACT APPLIES. WE DO NOT KNOW OF ANY STATUTE WHICH GIVES SIMILAR MANDATORY EFFECT TO CORRECTIVE ACTION RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION IN CASES SUCH AS THE ONE HERE PRESENTED. AS SUGGESTED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER, OUR DECISION B-123414, JULY 25, 1955, INVOLVED AN EMPLOYEE REMOVED FROM A POSITION IN THE CLASSIFIED CIVIL SERVICE AND REASSIGNED TO AN EXCEPTED POSITION. UNLIKE THE CASE HERE UNDER CONSIDERATION, THE EMPLOYEE IN THAT CASE HAD BEEN ENTIRELY REMOVED FROM THE CLASSIFIED CIVIL SERVICE WITHIN THE MEANING OF THE 1912 ACT, SUPRA. ALSO, SEE GENERALLY, MAGHAN V. BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA ET AL., 141 F.2D 274.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE EMPLOYEE IN QUESTION MAY NOT BE PAID "BACK PAY" IN GRADE GS-15 FOR THE PERIOD HE WAS APPOINTED TO AND SERVED IN A POSITION IN GRADE GS-13, PRIOR TO HIS RESTORATION ON MAY 25, 1956, TO THE HIGHER POSITION.