B-134345, DEC. 13, 1957

B-134345: Dec 13, 1957

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THE ASSISTANT SECRETARY'S LETTER STATES: "ON 21 FEBRUARY 1956 THE NEW YORK ORDNANCE DISTRICT WAS DIRECTED BY THE SECOND U.S. THE INSTALLATION ELECTED TO APPEAL THE COMMISSION'S DECISION IN THIS MATTER ON THE BASIS OF THE FACT THAT THE EMPLOYEE'S PERFORMANCE HAD BEEN OUTSTANDING AND THAT THE INSTALLATION WAS IN DIRE NEED OF HIS SERVICES. ENSIGN ON THE ROLLS IN AN ACTIVE DUTY STATUS WHICH CONTINUED UNTIL 26 MARCH 1957 AT WHICH TIME HE WAS SUSPENDED FROM DUTY PENDING FINAL REVIEW OF THE INSTALLATION'S APPEAL BY THE CIVIL SERVICE COMMISSIONERS. THE INSTALLATION WAS ADVISED BY THE CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW THAT AS A RESULT OF THE FINDINGS OF THE CIVIL SERVICE COMMISSIONERS IN THIS MATTER.

B-134345, DEC. 13, 1957

TO THE SECRETARY OF THE ARMY:

ON NOVEMBER 5, 1957, THE ASSISTANT SECRETARY OF THE ARMY, REQUESTED OUR DECISION CONCERNING THE ELIGIBILITY OF MR. LLOYD C. ENSIGN, UNDER PUBLIC LAW 623, 80TH CONGRESS, APPROVED JUNE 10, 1948, 5 U.S.C. 652 (B), TO COMPENSATION FOR THE PERIOD OF HIS SUSPENSION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE ASSISTANT SECRETARY'S LETTER STATES:

"ON 21 FEBRUARY 1956 THE NEW YORK ORDNANCE DISTRICT WAS DIRECTED BY THE SECOND U.S. CIVIL SERVICE COMMISSION TO EFFECT THE REMOVAL OF MR. LLOYD C. ENSIGN ON THE BASIS OF A FINDING OF UNSUITABILITY FOR FEDERAL EMPLOYMENT. UPON CONSIDERATION OF THE COMMISSION'S FINDINGS, THE INSTALLATION ELECTED TO APPEAL THE COMMISSION'S DECISION IN THIS MATTER ON THE BASIS OF THE FACT THAT THE EMPLOYEE'S PERFORMANCE HAD BEEN OUTSTANDING AND THAT THE INSTALLATION WAS IN DIRE NEED OF HIS SERVICES. INITIALLY UPON APPEAL THE INSTALLATION RETAINED MR. ENSIGN ON THE ROLLS IN AN ACTIVE DUTY STATUS WHICH CONTINUED UNTIL 26 MARCH 1957 AT WHICH TIME HE WAS SUSPENDED FROM DUTY PENDING FINAL REVIEW OF THE INSTALLATION'S APPEAL BY THE CIVIL SERVICE COMMISSIONERS.

"ON 8 AUGUST 1957, THE INSTALLATION WAS ADVISED BY THE CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW THAT AS A RESULT OF THE FINDINGS OF THE CIVIL SERVICE COMMISSIONERS IN THIS MATTER, THE APPEAL HAD BEEN RESOLVED IN FAVOR OF THE INSTALLATION AND THAT THE EMPLOYEE SHOULD BE RESTORED TO DUTY RETROACTIVE TO 26 MARCH 1957, THE DATE OF UNWARRANTED SUSPENSION. ACCORDINGLY, ON 9 AUGUST 1957 THE INSTALLATION CANCELLED THE SUSPENSION ACTION AND IMMEDIATELY PLACED MR. ENSIGN IN A LEAVE-WITHOUT-PAY STATUS PENDING HIS ACTUAL RETURN TO DUTY.

"AT THE TIME OF MR. ENSIGN'S SUSPENSION ON 26 MARCH 1957 HE WAS UNABLE TO FIND EMPLOYMENT IN THE NEW YORK AREA. HE THEREFORE RELOCATED IN PUERTO RICO WHERE HE HAS ESTABLISHED HIS OWN BUSINESS. NOTWITHSTANDING THE INSTALLATION'S ABILITY TO UTILIZE HIS SERVICES, HE HAS ADVISED THE NEW YORK ORDNANCE DISTRICT THAT HE DOES NOT INTEND TO CONTINUE HIS GOVERNMENT EMPLOYMENT BUT WILL, IF NECESSARY, RETURN TO ACTIVE DUTY FOR ONE DAY BEFORE RESIGNING IN ORDER TO ESTABLISH ELIGIBILITY FOR RETROACTIVE PAY UNDER PUBLIC LAW 623, 80TH CONGRESS, FOR THE PERIOD OF UNWARRANTED PENSION.'

UPON THE FACTS PRESENTED OUR DECISION IS REQUESTED UPON THE FOLLOWING QUESTIONS:

"1. IS RETROACTIVE COMPENSATION PAYABLE TO THE EMPLOYEE ON THE BASIS OF CONSTRUCTIVE RESTORATION?

"2. IF ANSWER TO QUESTION 1 IS IN THE NEGATIVE, WILL EMPLOYEE'S ACTUAL RETURN TO DUTY IMMEDIATELY FOLLOWED BY HIS RESIGNATION SATISFY THE RESTORATION REQUIREMENT FOR RETROACTIVE PAY PURPOSES?

"3. WOULD ANSWER TO QUESTION 2 BE DIFFERENT IF THE APPOINTING OFFICER EFFECTING THE EMPLOYEE'S ACTUAL RESTORATION TO DUTY WITHOUT KNOWLEDGE OF EMPLOYEE'S INTENT TO DISCONTINUE FEDERAL EMPLOYMENT AND IF IMMEDIATELY THEREAFTER THE EMPLOYEE RESIGNED?

PUBLIC LAW 623 AUTHORIZES COMPENSATION FOR A PERIOD OF REMOVAL OR SUSPENSION IF THE EMPLOYEE, OTHERWISE WITHIN THE PURVIEW OF THE ACT, IS "REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED.' IN OUR DECISIONS OF MARCH 29, 1955, 34 COMP. GEN. 478, AND 34 COMP. GEN. 480, REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER, WE RECOGNIZED ADMINISTRATIVE CORRECTION ACTION--- PERSONNEL ACTIONS OF RESTORATION--- AS CONSTITUTING A REINSTATEMENT OR RESTORATION WITHIN THE CONTEMPLATION OF THE ACT NOTWITHSTANDING THE EMPLOYEE, HAVING OBTAINED OTHER FEDERAL EMPLOYMENT, DID NOT ACTUALLY RETURN TO A WORK STATUS WITH THE AGENCY FROM WHICH HE HAD BEEN IMPROPERLY REMOVED OR SUSPENDED.

THE PHRASE "REINSTATED OR RESTORED TO DUTY," IN THE CONTEXT IN WHICH IT APPEARS, IS VIEWED AS MERELY CONTEMPLATING ADMINISTRATIVE ACTION PREDICATED UPON A FINDING THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. FOR THE PURPOSE OF THE PHRASE AN ADMINISTRATIVE ACTION OF REINSTATEMENT OR RESTORATION IS SUFFICIENT. THE FACT THAT THE EMPLOYEE, IMMEDIATELY AFTER REINSTATEMENT OR RESTORATION, RESIGNS WITHOUT ACTUALLY RETURNING TO DUTY DOES NOT HAVE THE EFFECT OF NULLIFYING THE REINSTATEMENT OR RESTORATION. SEE 36 COMP. GEN. 762.

IN REPLY TO THE FIRST QUESTION, YOU ARE ADVISED THAT MR. ENSIGN MAY, WITHOUT AN ACTUAL RETURN TO DUTY, BE CONSIDERED AS HAVING BEEN REINSTATED OR RESTORED FOR THE PURPOSE OF PUBLIC LAW 623, AND PAYMENT OF RETROACTIVE COMPENSATION MAY BE MADE IF OTHERWISE PROPER.

OUR ANSWER TO THE FIRST QUESTION MAKES UNNECESSARY A REPLY TO THE REMAINING TWO QUESTIONS.