B-132199, OCT. 22, 1957

B-132199: Oct 22, 1957

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ESQUIRE: WE HAVE FURTHER CONSIDERED THE BACK PAY CLAIM OF EDWARD SCHWARTZ INCIDENT TO HIS SUSPENSION AND REMOVAL FROM THE POSTAL SERVICE. HE WAS SUSPENDED MARCH 12. THE SUSPENSION AND REMOVAL ACTIONS WERE PURPORTEDLY EFFECTED UNDER THE ACT OF AUGUST 26. SCHWARTZ WAS ADMINISTRATIVELY RESTORED SEPTEMBER 10. THE PRESENT CLAIM FOR COMPENSATION IS PREDICATED UPON A PROVISO OF THE 1950 ACT. "THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY. THE QUESTION OF THE APPLICABILITY OF THE BACK PAY PROVISION OF THE PROVISO TO EMPLOYEES WHO HAD BEEN REMOVED UNDER THE 1950 ACT FROM NONSENSITIVE POSITIONS AND WHO WERE RESTORED TO DUTY IN VIEW OF COLE V. YOUNG WAS CONSIDERED IN A DECISION DATED SEPTEMBER 20.

B-132199, OCT. 22, 1957

TO WILLIAM J. WOOLSTON, ESQUIRE:

WE HAVE FURTHER CONSIDERED THE BACK PAY CLAIM OF EDWARD SCHWARTZ INCIDENT TO HIS SUSPENSION AND REMOVAL FROM THE POSTAL SERVICE.

ON FEBRUARY 1, 1953, MR. SCHWARTZ RECEIVED AN INDEFINITE APPOINTMENT AS A SUBSTITUTE POSTAL CLERK. HE WAS SUSPENDED MARCH 12, 1954, AND REMOVED FROM THE POSTAL SERVICE SEPTEMBER 15, 1954. THE SUSPENSION AND REMOVAL ACTIONS WERE PURPORTEDLY EFFECTED UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, 22-3, WHICH, AS EXTENDED BY EXECUTIVE ORDER NO. 10450, CONFERS UPON HEADS OF DEPARTMENTS AND AGENCIES OF THE GOVERNMENT SUMMARY SUSPENSION AND UNREVIEWABLE DISMISSAL POWERS OVER THEIR EMPLOYEES, WHEN DEEMED NECESSARY IN THE INTEREST OF NATIONAL SECURITY. AS THE SUPREME COURT IN A DECISION OF JUNE 11, 1956, COLE V. YOUNG, 351 U.S. 536, HELD THE SUMMARY SUSPENSION AND UNREVIEWABLE REMOVAL AUTHORITY OF THE 1950 ACT DID NOT EXTEND TO EMPLOYEES OCCUPYING NONSENSITIVE POSITIONS, MR. SCHWARTZ WAS ADMINISTRATIVELY RESTORED SEPTEMBER 10, 1956.

THE PRESENT CLAIM FOR COMPENSATION IS PREDICATED UPON A PROVISO OF THE 1950 ACT,"THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT 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 * * *.'

THE QUESTION OF THE APPLICABILITY OF THE BACK PAY PROVISION OF THE PROVISO TO EMPLOYEES WHO HAD BEEN REMOVED UNDER THE 1950 ACT FROM NONSENSITIVE POSITIONS AND WHO WERE RESTORED TO DUTY IN VIEW OF COLE V. YOUNG WAS CONSIDERED IN A DECISION DATED SEPTEMBER 20, 1956, 36 COMP. GEN. 225, TO THE POSTMASTER GENERAL, COPY HEREWITH. WE HELD THEREIN, AS APPEARS TO BE REQUIRED BY THE ABOVE PROVISO, THAT "ONLY THOSE PERSONS WHOSE DISMISSAL WAS AUTHORIZED BY THE 1950 ACT AND WHO ARE RESTORED AT THE DISCRETION OF THE AGENCY HEAD ARE ENTITLED TO BACK PAY AS PRESCRIBED BY THE 1950 ACT.'

IN CONSONANCE WITH THE DECISION OF SEPTEMBER 20, 1956, MR. SCHWARTZ'S CLAIM CANNOT BE FAVORABLY CONSIDERED UNDER THE 1950 ACT, AND AS HIS EMPLOYMENT STATUS WAS OTHER THAN THAT OF A PERMANENT OR PREFERENCE ELIGIBLE EMPLOYEE, HE IS NOT ENTITLED TO THE BACK PAY BENEFITS OF THE ACT OF JUNE 10, 1948, 5 U.S.C. 652/B), REFERRED TO IN OUR SETTLEMENT OF AUGUST 22, 1957. ACCORDINGLY, THE DISALLOWANCE OF HIS CLAIM IS SUSTAINED.