B-134208, DEC. 2, 1957

B-134208, DEC. 2, 1957

TO MRS. MURIEL B. SCOTT, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF COMMERCE:

YOUR LETTER OF OCTOBER 18, 1957, PRESENTS FOR OUR CONSIDERATION A VOUCHER IN FAVOR OF A. PHILIP STOCKVIS FOR BACK PAY UNDER THE PROVISIONS OF SECTION 6 (B) (3) OF THE ACT OF JUNE 10, 1948, 62 STAT. 355, UPON HIS RESTORATION TO THE ROLLS OF THE BUREAU OF FOREIGN COMMERCE, DEPARTMENT OF COMMERCE, AS THE RESULT OF AN APPEAL OF HIS REDUCTION IN FORCE TO THE UNITED STATES CIVIL SERVICE COMMISSION.

THE RECORD SHOWS THAT MR. STOCKVIS, A NONVETERAN, WAS EMPLOYED IN THE BUREAU OF FOREIGN COMMERCE, GRADE GS-13, $9,420 PER ANNUM, WHEN HE RECEIVED A 30-DAY REDUCTION IN FORCE NOTICE ON FEBRUARY 15, 1956. MARCH 16, 1956, THE NOTICE WAS EXTENDED THROUGH THE CLOSE OF BUSINESS MARCH 30, 1956, AND MR. STOCKVIS WAS ADMINISTRATIVELY CARRIED ON ANNUAL LEAVE DURING SUCH EXTENSION, A TOTAL OF 80 HOURS. HIS ANNUAL LEAVE BALANCE ON MARCH 15, 1956, WAS 314 HOURS AND HIS ESTABLISHED CEILING WAS 279 HOURS. EFFECTIVE MARCH 30, 1956, HIS NAME WAS REMOVED FROM THE ROLLS AND HE WAS PAID IN A LUMP SUM FOR 234 HOURS ANNUAL LEAVE. ON APRIL 25, 1956, MR. STOCKVIS WAS EMPLOYED BY THE OFFICE OF INTERNATIONAL TRADE FAIRS, DEPARTMENT OF COMMERCE, IN A GRADE GS-12 POSITION, $8,645 PER ANNUM, BY REINSTATEMENT (CAREER) UNDER CIVIL SERVICE REGULATION 20.7. UPON SUCH REEMPLOYMENT, REFUND WAS MADE IN THE AMOUNT OF $443.85 FOR 98 HOURS ANNUAL LEAVE REPRESENTING THE UNEXPIRED PORTION OF THE LUMP SUM PAYMENT AND HIS LEAVE ACCOUNT WAS RECREDITED WITH THAT AMOUNT OF ANNUAL LEAVE. THIS EMPLOYMENT WAS TERMINATED AUGUST 28, 1956, AND, EFFECTIVE AUGUST 29, 1956, MR. STOCKVIS WAS GIVEN AN EXCEPTED APPOINTMENT NOT TO EXCEED TWO YEARS AT GRADE GS-13, $9,420 PER ANNUM, WITH THE OFFICE OF INTERNATIONAL TRADE FAIRS. NOTIFICATION OF PERSONNEL ACTION DATED DECEMBER 4, 1956, CANCELED THE ORIGINAL REDUCTION IN FORCE EFFECTIVE RETROACTIVELY TO MARCH 30, 1956, AS RECOMMENDED BY THE CIVIL SERVICE COMMISSION. ADMINISTRATIVE ACTION WAS EFFECTED MARCH 24, 1957, REASSIGNING MR. STOCKVIS FROM HIS ORIGINAL POSITION AT GRADE GS-13, $9,420 PER ANNUM, BUREAU OF FOREIGN COMMERCE, TO GRADE GS-13, $9,635 PER ANNUM, OFFICE OF INTERNATIONAL TRADE FAIRS, SINCE HE DID NOT WISH TO BE RESTORED TO HIS ORIGINAL POSITION. THE REASSIGNMENT WAS ADMINISTRATIVELY MADE ONE STEP HIGHER TO INCLUDE A PERIODIC STEP INCREASE IN THE BUREAU OF FOREIGN COMMERCE ATTAINED NOVEMBER 4, 1956. WE NOTE THAT MR. STOCKVIS RECEIVED NO OTHER COMPENSATION DURING THE PERIOD HERE INVOLVED OTHER THAN WHAT HE RECEIVED FROM THE TWO POSITIONS HELD IN THE OFFICE OF INTERNATIONAL TRADE FAIRS.

BASED UPON THE FOREGOING FACTS, YOU REQUEST OUR DECISION ON THE FOLLOWING QUESTIONS:

"1. (A) DOES THE ATTACHED VOUCHER REPRESENT ALL MR. STOCKVIS IS ENTITLED TO AND MAY IT BE CERTIFIED FOR PAYMENT?

(B) IF NOT, SHOULD IT INCLUDE DIFFERENCE IN COMPENSATION BETWEEN $9420 AND $9635, THE BENEFIT OF THE PERIODIC STEP INCREASE WHICH WOULD HAVE BEEN EFFECTIVE NOVEMBER 4, 1956, IF HE HAD NOT BEEN SEPARATED?

"2. (A) IF YOUR ANSWER TO QUESTION 1 (B) IS IN THE AFFIRMATIVE, WOULD THE BUREAU OF FOREIGN COMMERCE BE UNDER OBLIGATION TO PAY ANY COMPENSATION TO MR. STOCKVIS BEYOND THE CLOSE OF BUSINESS AUGUST 28, 1956?

(B) IF SO, WOULD IT EXTEND THROUGH CLOSE OF BUSINESS MARCH 23, 1957?

"3. (A) WHAT WOULD BE THE DATE OF RESTORATION FOR COMPUTATION PURPOSES?

(B) IF THE DATE OF RESTORATION WAS AFTER NOVEMBER 4, 1956, SHOULD HE BE RESTORED AT $9635 PER ANNUM?

"4. SINCE THE QUESTION REGARDING LEAVE DEPENDS UPON THE "DATE OF RESTORATION," AND ASSUMING IT WAS THE DATE OF ADMINISTRATIVE ACTION, I.E., DECEMBER 4, 1956, WOULD THE PROPER PROCEDURE BE TO CREDIT HIS ACCOUNT WITH 234 HOURS ANNUAL AND 602 HOURS SICK, PLUS ACCRUALS FROM DECEMBER 4, 1956 THROUGH JANUARY 12, 1957, AND OF 1956 LEAVE YEAR, OR 23 HOURS ANNUAL, WHICH WOULD ESTABLISH A NEW CEILING OF 257 HOURS ANNUAL LEAVE?

QUESTION 3 (A) WILL BE ANSWERED FIRST. SINCE ADMINISTRATIVE ACTION WAS TAKEN ON DECEMBER 4, 1956, TO CANCEL THE REDUCTION IN FORCE ACTION IN ACCORDANCE WITH THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION, RETROACTIVELY TO MARCH 30, 1956, FOR COMPUTATION PURPOSES, THE PERIOD FROM MARCH 31 TO DECEMBER 4, 1956, INCLUSIVE, SHOULD BE CONSIDERED AS THE PERIOD OF UNWARRANTED AND UNJUSTIFIED REMOVAL. SEE 34 COMP. GEN. 480; B- 123220, JUNE 2, 1955. THEREFORE, MR. STOCKVIS WOULD BE ENTITLED TO BACK PAY UNDER THE FOREGOING STATUTORY PROVISIONS FOR THAT PERIOD AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL, NAMELY, $9,420 PER ANNUM. 28 COMP. GEN. 333.

REGARDING QUESTION 3 (B), ATTENTION IS DIRECTED TO 28 COMP. GEN. 563, WHICH READS AS FOLLOWS, QUOTING THE SYLLABUS:

"UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDING THAT A PERSON IMPROPERLY REMOVED AND SUBSEQUENTLY REINSTATED IS TO BE DEEMED AS HAVING RENDERED SERVICE FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE DURING THE PERIOD OF REMOVAL, THERE SHOULD BE INCLUDED IN THE RATE OF COMPENSATION PAYABLE ON AND AFTER THE DATE OF RESTORATION A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT WHICH WOULD HAVE BEEN GRANTED HAD THE EMPLOYEE REMAINED IN THE SERVICE DURING THE PERIOD OF REMOVAL, PROVIDED ALL ELEMENTS FOR SUCH ADVANCEMENT WERE PRESENT AT THE DATE OF RESTORATION.'

SINCE THE DATE OF RESTORATION HERE WAS FIXED AS DECEMBER 4, 1956, MR. STOCKVIS WOULD NOT BE ENTITLED TO HIS PERIODIC STEP-INCREASE UNTIL THE DATE OF HIS RESTORATION PROVIDED ALL ELEMENTS OF SUCH ADVANCEMENT ARE PRESENT AT THAT TIME. THEREFORE, ADMINISTRATIVE STEPS SHOULD BE TAKEN TO SHOW HIS TRANSFER EFFECTIVE DECEMBER 5, 1956, SINCE HE DOES NOT WISH TO BE RESTORED TO HIS ORIGINAL POSITION. THE SALARY RATE PROPERLY PAYABLE FROM THAT DATE IS $9,635 PER ANNUM PRESUMING THE REQUIREMENTS FOR THE STEP INCREASE HAVE BEEN MET. QUESTION 3 (B) IS ANSWERED ACCORDINGLY.

FROM THE FOREGOING CONSIDERATIONS, YOU WILL SEE THAT MR. STOCKVIS, FROM A MONETARY STANDPOINT, IS ENTITLED TO RECEIVE COMPENSATION AT THE RATE OF $9,420 PER ANNUM WHILE UNEMPLOYED FROM MARCH 31 TO APRIL 24, 1956. ALSO IS ENTITLED TO THE DIFFERENCE BETWEEN THE GRADE GS-12 POSITION, $8,645 PER ANNUM, WHICH HE HELD DURING THE PERIOD APRIL 25 TO AUGUST 28, 1956, AND THE $9,420 PER ANNUM RATE RECEIVED AT THE TIME HE WAS REMOVED. SINCE HE RECEIVED, EFFECTIVE AUGUST 29 THROUGH DECEMBER 4, 1956, COMPENSATION AT THE RATE OF $9,420 PER ANNUM, NO ADJUSTMENT IS REQUIRED FOR THAT PERIOD. INASMUCH AS THE VOUCHER YOU SUBMITTED AGREES WITH THE FOREGOING CONSIDERATIONS, AND INCLUDES REFUND FOR 136 HOURS OF ANNUAL LEAVE, IT MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT. QUESTION 1 (A) IS ANSWERED ACCORDINGLY. CONCERNING QUESTION 1 (B) SEE THE ANSWER TO QUESTION 3 (B).

CONCERNING YOUR QUESTION 2 (A), WE REFER TO OUR ANSWER TO QUESTION 3 (B), WHEREIN WE CONCLUDE THAT MR. STOCKVIS, UNDER THE CIRCUMSTANCES, SHOULD HAVE HIS RECORDS CORRECTED TO SHOW HIS TRANSFER EFFECTIVE DECEMBER 5, THUS OBLIGATING THE BUREAU OF FOREIGN COMMERCE TO PAY HIS COMPENSATION THROUGH DECEMBER 4, 1956.

QUESTION 2 (B) ACCORDINGLY REQUIRES NO ANSWER.

CONCERNING QUESTION 4, IN VIEW OF WHAT WE ALREADY HAVE SAID, WE CONCLUDE THAT SINCE THE LANGUAGE OF SECTION 6 (B) (3) PROVIDES THAT NO LEAVE CAN BE ACCUMULATED DURING A PERIOD OF REMOVAL, MR. STOCKVIS IS NOT ENTITLED TO ACCUMULATE ANY LEAVE DURING THE PERIOD MARCH 31 TO DECEMBER 4, 1956, INCLUSIVE, IN THE POSITION FROM WHICH REMOVED OR ANY OTHER POSITION HELD DURING THAT PERIOD. B-122348, FEBRUARY 18, 1955. HOWEVER, UPON HIS TRANSFER, EFFECTIVE DECEMBER 5, 1956, WHICH WOULD BE OUTSIDE THE PERIOD OF REMOVAL, NO FURTHER QUESTION ARISES CONCERNING HIS EARNING LEAVE, EXCEPT AS SUCH LEAVE MAY BE IN EXCESS OF HIS ESTABLISHED LEAVE CEILING. 32 COMP. GEN. 162. THEREFORE, BASED UPON WHAT HAS ALREADY BEEN SAID, MR. STOCKVIS, FROM A LEAVE STANDPOINT, IS ENTITLED TO THE RECREDIT OF THE 98 HOURS FOR WHICH HE MADE REFUND UPON HIS EMPLOYMENT, APRIL 25, 1956. THE 80 HOURS ANNUAL LEAVE TAKEN MARCH 16 TO 30, 1956, MAY NOT BE CONSIDERED HERE SINCE IT IS OUTSIDE THE PERIOD OF REMOVAL AND CONSEQUENTLY NOT COVERED BY SECTION 603 (B) (3) BUT THE TAKING OF SUCH LEAVE HAS THE EFFECT OF REDUCING THE LEAVE CEILING IF IT IS NOT POSSIBLE DURING THE REMAINDER OF THE LEAVE YEAR TO REACH HIS ESTABLISHED LEAVE CEILING OF 279 HOURS. HOWEVER, HE IS ENTITLED TO RECREDIT FOR THE 136 HOURS FOR WHICH REFUND IS BEING MADE ON THE VOUCHER SUBMITTED HEREWITH, MAKING A TOTAL OF 234 HOURS, THE AMOUNT OF LEAVE HE RECEIVED PAYMENT FOR IN A LUMP SUM UPON SEPARATION. HE SHOULD BE RECREDITED WITH 234 HOURS ANNUAL LEAVE PLUS THE AMOUNT OF LEAVE EARNED FROM DECEMBER 5, 1956, FOR THE REMAINDER OF THE LEAVE YEAR OR 23 HOURS AS SHOWN BY YOU IN QUESTION 4 THUS ESTABLISHING A NEW ANNUAL LEAVE CEILING OF 257 HOURS.