B-131653, MAY 17, 1957

B-131653: May 17, 1957

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EXPENSES OF THE NATURE UNDER DISCUSSION ARE NOT "VOLUNTARY" ON THE PART OF THE EMPLOYEE AND ARE NOT ANY PART OF THE IMPLIED AND/OR WRITTEN CONTRACT THAT EXISTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEE.'. YOU SAY THAT YOU ARE SURE "THERE MUST BE PRIOR INSTANCES OF RETRIBUTION BY THE GOVERNMENT FOR DAMAGES CAUSED BY UNFOUNDED CHARGES. THE STATUTE SPECIFICALLY STATES THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED MAY. IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION.

B-131653, MAY 17, 1957

TO MR. WILLIAM J. JONES:

YOUR LETTER OF APRIL 9, 1957, REQUESTS REVIEW OF OUR REVISED DISALLOWANCE DATED JANUARY 7, 1957, CONCERNING YOUR CLAIM FOR COSTS OF LEGAL ADVICE AND REPRESENTATION, SEPARATE INVESTIGATIONS, TRAVEL, ETC., INCURRED IN SECURING YOUR REINSTATEMENT AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, SIGNAL CORPS, ENGINEERING LABORATORIES, FORT MONMOUTH, NEW JERSEY, FROM SUSPENSION AND SEPARATION UNDER THE ACT OF AUGUST 26, 1950, Y4 STAT. 476, 5 U.S.C. 22-1 (PUBLIC LAW 733), FOR THE PERIOD JANUARY 25, 1951, THROUGH MARCH 6, 1952.

YOUR LETTER RAISES THE FOLLOWING CONTENTIONS:

"FIRST, WHILE MY CLAIM DOES NOT EXCLUDE THE POSSIBILITY OF AN INCREASE IN SALARY FOR THE AMOUNT EQUAL TO EXPENDITURES, IT DOES INCLUDE, AMONG OTHERS, THE CONCEPT OF DAMAGES.'

"SECONDLY, EXPENSES OF THE NATURE UNDER DISCUSSION ARE NOT "VOLUNTARY" ON THE PART OF THE EMPLOYEE AND ARE NOT ANY PART OF THE IMPLIED AND/OR WRITTEN CONTRACT THAT EXISTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEE.'

FURTHER, YOU SAY THAT YOU ARE SURE "THERE MUST BE PRIOR INSTANCES OF RETRIBUTION BY THE GOVERNMENT FOR DAMAGES CAUSED BY UNFOUNDED CHARGES, ETC., THAT CAN AND OUGHT TO BE EMPLOYED BY YOUR OFFICE AS FIRM LEGAL BASIS FOR PAYMENT OF EXPENSES CLAIMED.'

THE STATUTE SPECIFICALLY STATES THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON. THE RECORD SHOWS YOU HAD NO INTERIM NET EARNINGS AND THAT YOU HAVE RECEIVED PAYMENT OF THE SALARY YOU WOULD HAVE EARNED DURING THE PERIOD INVOLVED IN ACCORDANCE WITH THE APPLICABLE STATUTORY PROVISIONS.

CONCERNING YOUR STATEMENT THAT YOU ARE SURE THERE MUST BE PRIOR INSTANCES OF RETRIBUTION BY THE GOVERNMENT FOR SUCH DAMAGES, YOU ARE INFORMED THAT WHILE THE STATUTE PROVIDES AN OPPORTUNITY FOR AN EMPLOYEE TO SUBMIT STATEMENTS OR AFFIDAVITS IN CONNECTION WITH HIS SUSPENSION OR TERMINATION, NOTHING CONTAINED THEREIN OBLIGATES THE GOVERNMENT FOR SUCH EXPENSES AS ARE HERE UNDER DISCUSSION. NO INSTANCES OF RETRIBUTION OF EXPENSES SUCH AS HERE INVOLVED HAVE BEEN FOUND IN OUR RECORDS.

TO ALLOW THE EXPENSES CLAIMED WOULD BE TANTAMOUNT TO PAYING YOU IN EXCESS OF THE AMOUNT OF COMPENSATION AUTHORIZED BY THE STATUTE. SUCH EXPENSES WERE INCURRED AT YOUR PERSONAL DISCRETION AND MUST BE CONSIDERED AS PURELY PERSONAL EXPENSES IN THE ABSENCE OF STATUTORY PROVISIONS AUTHORIZING REIMBURSEMENT THEREFOR.

THE REVISED DISALLOWANCE OF JANUARY 7, 1957, MUST BE, AND IS, SUSTAINED.