B-134672, FEBRUARY 4, 1958, 37 COMP. GEN. 506

B-134672, FEBRUARY 4, 1958, 37 COMP. GEN. 506

CIVILIAN PERSONNEL - RESTORATION FOLLOWING SUMMARY SUSPENSION - COLE V. YOUNG DECISION - EMPLOYEES WHO DO NOT HAVE CLASSIFIED STATUS OR ENTITLEMENT TO VETERANS PREFERENCE BENEFITS THE BACK PAY PROVISIONS OF 5 U.S.C. 652 (B) FOR EMPLOYEES RESTORED TO DUTY FOLLOWING UNJUSTIFIED REMOVALS OR SUSPENSIONS FROM THE SERVICE ARE APPLICABLE ONLY TO EMPLOYEES ENTITLED TO THE PROCEDURAL PROTECTION OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (A), AND OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 5 U.S.C. 863, THAT IS, EMPLOYEES IN THE CLASSIFIED SERVICE AND VETERANS PREFERENCE ELIGIBLES. AN INDEFINITE EMPLOYEE WHO DOES NOT HAVE EITHER COMPETITIVE (CLASSIFIED) STATUS OR VETERAN'S PREFERENCE AND WHO IS RESTORED TO DUTY IN ACCORDANCE WITH THE SUPREME COURT DECISION IN COLE V. YOUNG, 351 U.S.C. 536, WHICH HELD THAT THE SUMMARY SUSPENSION AND DISMISSAL PROCEDURES OF EXECUTIVE ORDER NO. 10450 AND OF THE ACT OF AUGUST 26, 1950, COULD NOT BE EXTENDED TO EMPLOYEES IN NONSENSITIVE POSITIONS, IS NOT ENTITLED TO BACK PAY FOR THE PERIOD OF SUSPENSION AND REMOVAL. AN INDEFINITE EMPLOYEE WHO, BUT FOR A SECURITY SUSPENSION AND REMOVAL FROM THE SERVICE WOULD HAVE HAD HER APPOINTMENT CONVERTED TO A CAREER APPOINTMENT ON JANUARY 23, 1955, AND WHO IS SUBSEQUENTLY RESTORED TO DUTY IN ACCORDANCE WITH THE DECISION IN COLE V. YOUNG, 315 U.S. 536, CONCERNING NONSENSITIVE POSITION REMOVALS, MAY BE FOUND TO HAVE BEEN REMOVED CONTRARY TO THE PROCEDURAL PROTECTION AFFORDED INDEFINITE EMPLOYEES BY SECTION 9.102 (A) (1) OF THE CIVIL SERVICE COMMISSION REGULATIONS AND BE REGARDED AS HAVING REMAINED CONSTRUCTIVELY IN THE SERVICE UNTIL ACTUAL RESTORATION; THEREFORE, IT WOULD BE PROPER TO GIVE THE EMPLOYEE A CAREER APPOINTMENT AS OF JANUARY 23, 1955, AND BACK PAY FROM THAT DATE UNTIL RESTORATION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 4, 1958:

THIS REFERS TO THE LETTER OF DECEMBER 16, 1957, FROM THE HONORABLE CHRISTOPHER H. PHILLIPS, ACTING CHAIRMAN, CONCERNING THE CORRECTNESS OF A PAYMENT OF BACK PAY UNDER OUR DECISION OF SEPTEMBER 20, 1956, 36 COMP. GEN. 225. THE PAYMENT WAS MADE TO AN INDEFINITE EMPLOYEE UPON HER RESTORATION ON DECEMBER 17, 1956, FOLLOWING HER SUSPENSION ON NOVEMBER 3, 1953, AND REMOVAL ON JANUARY 25, 1954, UNDER THE ACT OF AUGUST 26, 1950 ( PUBLIC LAW 733), 64 STAT. 476, 5 U.S.C. 22-1, AND EXECUTIVE ORDER NO. 10450.

THE EMPLOYEE NOW HAS AN APPEAL PENDING BEFORE THE COMMISSION CONCERNING HER PROPER RETENTION GROUP IN CONNECTION WITH A REDUCTION-IN FORCE REMOVAL EFFECTIVE OCTOBER 11, 1957. THE LETTER STATES THAT THE KEY QUESTION IN THE APPEAL IS WHETHER THE EMPLOYEE WAS ENTITLED AT THE TIME OF HER RESTORATION TO HAVE HER APPOINTMENT CONVERTED TO A CAREER APPOINTMENT UNDER EXECUTIVE ORDER NO. 10577, WHICH TYPE OF APPOINTMENT WOULD HAVE BEEN AUTOMATICALLY CONFERRED EFFECTIVE JANUARY 23, 1955, HAD SHE NOT BEEN SUSPENDED AND REMOVED. ALSO, THE VIEW IS EXPRESSED THAT ENTITLEMENT TO CONVERSION TO CAREER STATUS DEPENDS UPON ENTITLEMENT TO BACK PAY UNDER PUBLIC LAW 623, 5 U.S.C. 652, INFRA, SINCE THAT LAW PROVIDES THAT THE PERIOD OF SUSPENSION AND REMOVAL SHALL BE COUNTED AS SERVICE.

WE HAVE ASCERTAINED THAT THE EMPLOYEE INVOLVED IS MRS. MABEL H. JANES WHO WAS EMPLOYED AS A PROPERTY AND SUPPLY CLERK AT THE SAN FRANCISCO NAVAL SHIPYARD.

IN RESPONSE TO OUR REQUEST FOR A REPORT, THE CHIEF OF INDUSTRIAL RELATIONS, DEPARTMENT OF THE NAVY, ADVISED US ON JANUARY 8, 1958, AS FOLLOWS:

MRS. JANES' RESTORATION TO DUTY WAS DIRECTED BY THE SECRETARY OF THE NAVY ON 17 NOVEMBER 1956, IN CONSONANCE WITH ADVICE RECEIVED FROM THE ATTORNEY GENERAL OF THE UNITED STATES IN HIS MEMORANDUM TO THE HEADS OF ALL DEPARTMENTS AND AGENCIES DATED 1 AUGUST 1956. THE EFFECTIVE DATE OF MRS. JANES' RESTORATION TO DUTY WAS 17 DECEMBER 1956.

RECORDS OF THE SAN FRANCISCO NAVAL SHIPYARD INDICATE THAT MRS. JANES WAS GIVEN AN INDEFINITE APPOINTMENT ON 22 JANUARY 1951 UNDER CIVIL SERVICE REGULATION 2.115 (A) AND WAS STILL SERVING UNDER THAT APPOINTMENT ON 25 JANUARY 1954.

THE LEGAL AUTHORITY FOR THE PAYMENT OF BACK PAY TO MRS. JANES IS INDICATED IN THE FOLLOWING EXTRACT FROM A LETTER OF THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) TO MRS. JANES, DATED 12 DECEMBER 1956:

"BASED ON THE COMPTROLLER GENERAL'S DECISION OF 20 SEPTEMBER 1956, B- 129169, IT HAS BEEN DETERMINED THAT THE BACK PAY PROVISIONS OF PUBLIC LAW 623 (80TH CONGRESS) ARE APPLICABLE TO YOUR CASE. ACCORDINGLY, THE COMMANDER, SAN FRANCISCO NAVAL SHIPYARD, HAS BEEN AUTHORIZED TO ALLOW YOU COMPENSATION COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT.'

THE ATTORNEY GENERAL'S MEMORANDUM OF AUGUST 1, 1956, AS WELL AS OUR DECISION OF SEPTEMBER 20, 1956, RELATED TO RESTORATION RESULTING FROM THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN COLE V. YOUNG, 351 U.S. 536, THAT THE SUMMARY DISMISSAL PROCEDURES OF EXECUTIVE ORDER NO. 10450 AND THE ACT OF AUGUST 26, 1950, WERE INAPPLICABLE TO EMPLOYEES IN NONSENSITIVE POSITIONS.

WE HELD IN THE DECISION OF SEPTEMBER 20, 1956, THAT THE BACK PAY RIGHTS OF PERSONS RESTORED AS A RESULT OF THE DECISION IN COLE V. YOUNG WERE FOR DETERMINATION UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948 ( PUBLIC LAW 623), 62 STAT. 355, 5 U.S.C. 652 (B). IN LINE WITH THE COLE V. YOUNG DECISION, OUR DECISION SPECIFICALLY CONFINED ITSELF TO CASES IN WHICH SUMMARY REMOVALS UNDER THE 1950 STATUTE AND EXECUTIVE ORDER NO. 10450 VIOLATED THE PROCEDURAL RIGHTS OF THE AFFECTED EMPLOYEES UNDER EITHER SECTION 6 (A) OF THE 1912 ACT AS AMENDED BY THE 1948 ACT, 5 U.S.C. 652 (A), APPLICABLE TO PERSONS IN THE CLASSIFIED CIVIL SERVICE, OR SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, APPLICABLE TO VETERANS PREFERENCE ELIGIBLES, OR BOTH. ASIDE FROM PROVISIONS CONCERNING REDUCTION IN FORCE NOT HERE PERTINENT, SECTION 6 (B), SUPRA, PROVIDES BACK PAY ONLY IN THE CASES OF EMPLOYEES ENTITLED TO THE PROCEDURAL PROTECTION OF SECTION 6 (A) OR SECTION 14. SINCE, AS STATED IN MR. PHILLIPS' LETTER, THE SUBJECT EMPLOYEE HAS NEVER SERVED WITH COMPETITIVE (CLASSIFIED) STATUS AND SINCE THE RECORD DOES NOT SHOW THAT SHE WAS A PREFERENCE ELIGIBLE, OUR DECISION OF SEPTEMBER 20, 1956, CONSTITUTED NO AUTHORITY FOR THE PAYMENT OF BACK PAY IN THIS CASE. 29 COMP. GEN. 29. IN THE ABSENCE OF OTHER STATUTORY AUTHORITY, SUCH PAYMENT THEREFORE WAS ERRONEOUS, EXCEPT POSSIBLY UNDER THE CIRCUMSTANCES AND TO THE EXTENT HEREINAFTER DISCUSSED.

AS STATED ABOVE, THE SUBJECT EMPLOYEE WAS NOT UNDER THE PROTECTION OF SPECIFIC STATUTORY REMOVAL PROCEDURES; NEVERTHELESS, IT DOES APPEAR THAT AS AN "INDEFINITE EMPLOYEE IN THE COMPETITIVE SERVICES" SHE WAS ENTITLED TO THE PROCEDURES SET FORTH IN SECTION 9.102 (A) (1) OF THE COMMISSION'S REGULATIONS AS AMENDED NOVEMBER 14, 1950, EFFECTIVE DECEMBER 1, 1950, WHICH ARE ALONG THE SAME LINES AS THOSE PROVIDED BY SECTION 6 (A) OF THE 1912 ACT AS AMENDED. WE ARE OF THE OPINION THAT IF, UNDER AUTHORITY OF SECTION 9.106 (B) (1) OF THE REGULATIONS, THE COMMISSION SHOULD FIND THAT THE EMPLOYEE WAS NOT ACCORDED THE PROCEDURES OF SECTION 9.102 (A) (1) IN CONNECTION WITH HER SUSPENSION AND REMOVAL, THEN, IN VIEW OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN SERVICE V. DULLES, 354 U.S. 363--- THAT THE FAILURE TO FOLLOW ADMINISTRATIVE REMOVAL PROCEDURES RENDERS THE REMOVAL INVALID--- IT WOULD BE APPROPRIATE TO HOLD THAT THE ATTEMPTED REMOVAL IN THIS CASE WAS OF NO FORCE AND EFFECT AND THAT THE EMPLOYEE CONSTRUCTIVELY REMAINED IN THE SERVICE UNTIL HER ACTUAL RESTORATION. IN THAT VIEW IT WOULD BE LEGALLY PROPER TO ACCORD THE EMPLOYEE THE CAREER APPOINTMENT BENEFITS OF SECTION 201 (A) OF EXECUTIVE ORDER NO. 10577 AS OF JANUARY 23, 1955, AND TO HOLD THAT FROM AND AFTER THAT DATE UNTIL THE DATE OF HER RESTORATION SHE WAS REMOVED FROM THE CLASSIFIED CIVIL SERVICE WITHIN THE MEANING OF SECTION 6 (A) OF THE 1912 ACT AS AMENDED, SUPRA. ON THAT BASIS SHE WOULD BE ENTITLED TO BACK PAY UNDER SECTION 6 (B) (1), 5 U.S.C. 652 (B) (1), FROM JANUARY 23, 1955, TO THE DATE OF RESTORATION.

WE SHOULD APPRECIATE YOUR INFORMING US OF YOUR DECISION IN THE MATTER. IN THE MEANTIME, WE ARE TRANSMITTING A COPY OF THIS LETTER TO THE SECRETARY OF THE NAVY WITH THE ADVICE THAT STEPS SHOULD BE TAKEN TO EFFECT COLLECTION OF THE ERRONEOUS PAYMENT OF BACK PAY FOR THE PERIOD PRIOR TO JANUARY 23, 1955, BUT THAT ACTION AS TO THE PERIOD OF REMOVAL ON OR AFTER THAT DATE MAY BE HELD IN ABEYANCE PENDING NOTIFICATION OF YOUR DECISION.