B-136108, MAY 29, 1958

B-136108: May 29, 1958

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ARE: YOU WERE NOTIFIED ON OCTOBER 1. THAT YOU WERE TO BE SUSPENDED FOR ONE YEAR FOR THE GOOD OF THE SERVICE. YOUR IMMEDIATE APPEAL WAS DENIED AND AT YOUR REQUEST. YOU WERE PLACED ON ANNUAL LEAVE UNTIL IT WAS EXHAUSTED ON DECEMBER 28. THE BASIC REASON FOR THE SUSPENSION APPEARS TO HAVE BEEN YOUR ADMITTED ACCEPTANCE OF GIFTS FROM A GOVERNMENT CONTRACTOR IN VIOLATION OF DEPARTMENTAL REGULATIONS. THIS CONDUCT WAS CONSIDERED AT THE SAME TIME BY THE DEPARTMENT OF JUSTICE AS A POSSIBLE VIOLATION OF CRIMINAL STATUTES (18 U.S.C. 201-202). YOU WERE ARRESTED BY FEDERAL AUTHORITIES ON SUCH A COMPLAINT. THE DISTRICT ENGINEER NOTIFIED YOU (1) THAT THE SUSPENSION WAS TERMINATED AND THAT YOU WERE TO RETURN TO DUTY ON FEBRUARY 25.

B-136108, MAY 29, 1958

TO MR. JAMES W. WHITEHEAD:

ON MAY 6, 1958, YOU REQUESTED RECONSIDERATION OF OUR OFFICE SETTLEMENT DATED APRIL 9, 1958, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION AND RESTORATION OF ANNUAL LEAVE AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY DURING A PERIOD OF INVOLUNTARY ANNUAL LEAVE AND SUSPENSION FROM OCTOBER 2, 1956, TO FEBRUARY 25, 1957. HONORABLE WILLIAM M. TUCK, HOUSE OF REPRESENTATIVES, ALSO HAS WRITTEN TO US CONCERNING YOUR CASE.

SUMMARIZED, THE FACTS IN YOUR CASE DISCLOSED BY THE RECORD, ARE:

YOU WERE NOTIFIED ON OCTOBER 1, 1956, BY THE DISTRICT ENGINEER, UNITED STATES ARMY CORPS OF ENGINEERS, SAVANNAH, GEORGIA, YOUR EMPLOYER, THAT YOU WERE TO BE SUSPENDED FOR ONE YEAR FOR THE GOOD OF THE SERVICE. YOUR IMMEDIATE APPEAL WAS DENIED AND AT YOUR REQUEST, YOU WERE PLACED ON ANNUAL LEAVE UNTIL IT WAS EXHAUSTED ON DECEMBER 28, 1956, AT WHICH TIME THE SUSPENSION PERIOD OFFICIALLY BEGAN AND YOU ENTERED A NONPAY STATUS. THE BASIC REASON FOR THE SUSPENSION APPEARS TO HAVE BEEN YOUR ADMITTED ACCEPTANCE OF GIFTS FROM A GOVERNMENT CONTRACTOR IN VIOLATION OF DEPARTMENTAL REGULATIONS. THIS CONDUCT WAS CONSIDERED AT THE SAME TIME BY THE DEPARTMENT OF JUSTICE AS A POSSIBLE VIOLATION OF CRIMINAL STATUTES (18 U.S.C. 201-202), AND, IN FACT, ON SEPTEMBER 28, 1956, JUST PRIOR TO THE SUSPENSION ORDER, YOU WERE ARRESTED BY FEDERAL AUTHORITIES ON SUCH A COMPLAINT. ON FEBRUARY 21, 1957, FOLLOWING THE GRAND JURY'S RETURN OF A "NO BILL" IN YOUR CASE, THE DISTRICT ENGINEER NOTIFIED YOU (1) THAT THE SUSPENSION WAS TERMINATED AND THAT YOU WERE TO RETURN TO DUTY ON FEBRUARY 25, AND (2) THAT IT WAS PROPOSED TO DISMISS YOU FROM YOUR POSITION, EFFECTIVE MARCH 26, 1957, FOR VIOLATION OF REGULATIONS AND ADMINISTRATIVE ORDERS IN ACCEPTING GIFTS FROM CONTRACTORS. YOUR CLAIM FOR RETROACTIVE PAY DURING THE SUSPENSION WAS DENIED BY THE DISTRICT ENGINEER WHOSE DECISION WAS AFFIRMED BY THE LOCAL GRIEVANCE COMMITTEE AND THE DIVISION ENGINEER IN ATLANTA, GEORGIA, ON APPEAL. AS A RESULT OF LETTERS FROM CONGRESSMAN TUCK AND YOUR ATTORNEYS, A COMPLETE REVIEW OF THE CASE WAS LATER MADE IN THE OFFICE, CHIEF OF ENGINEERS, ON THE MERITS.

THE PROCEDURAL ASPECTS OF BOTH THE SUSPENSION AND THE DISMISSAL WERE REVIEWED BY THE 5TH UNITED STATES CIVIL REGION AND FOUND TO BE SUFFICIENT UNDER THE LAW. THIS DECISION WAS AFFIRMED BY THE UNITED STATES CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW ON APRIL 4, 1957. YOU WERE ADVISED BY BOTH THE REGIONAL OFFICE AND THE BOARD THAT THE CIVIL SERVICE COMMISSION HAS NO AUTHORITY TO REVIEW THE SUFFICIENCY OF THE REASONS FOR YOUR SUSPENSION AND REMOVAL.

OUR CLAIMS DIVISION'S SETTLEMENT DISALLOWING YOUR CLAIM WAS BASED ON THE FACT THAT, SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR SUSPENSION AND SUBSEQUENT DISMISSAL WERE FOR GOOD CAUSE TO PROMOTE THE EFFICIENCY OF THE SERVICE AND THAT YOUR INTERIM RESTORATION TO DUTY WAS NOT ON THE GROUND THE SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, YOU WERE NOT ENTITLED TO THE RETROACTIVE PAY BENEFITS PROVIDED BY SECTION 6 (B) OF THE ACT OF JUNE 10, 1948 (5 U.S.C. 952B (1) ). BY THE EXPRESS TERMS OF THAT STATUTE RESTORATION ON THOSE GROUNDS IS A PREREQUISITE TO ENTITLEMENT TO RETROACTIVE PAY. YOUR RESTORATION TO DUTY APPEARS TO HAVE BEEN ONLY FOR THE PURPOSE OF PLACING YOU IN A PAY STATUS FOR THE REQUIRED 30-DAY NOTICE PERIOD BEFORE DISMISSAL ON ESSENTIALLY THE SAME GROUNDS AS CAUSED YOUR SUSPENSION.

WHETHER THE SUSPENSION OR DISMISSAL WAS JUSTIFIED OR WARRANTED BY THE FACTS IS A MATTER WHICH OUR OFFICE HAS NO JURISDICTION TO DECIDE. THE WELL-ESTABLISHED RULE IS THAT, UNLESS STATUTES SPECIFICALLY PROVIDE OTHERWISE, ADMINISTRATIVE JUDGMENT EXERCISED BY THE HEADS OF DEPARTMENTS OR AGENCIES REGARDING THE APPOINTMENT AND REMOVAL OF EMPLOYEES, IS NOT SUBJECT TO REVIEW BY THE COURTS OR OTHERWISE. (SEE KEIM V. UNITED STATES, 177 U.S. 290.) THE STATUTES APPLICABLE TO YOUR CASE DO NOT PROVIDE FOR ANY REVIEW ON THE MERITS OUTSIDE THE DEPARTMENT OF THE ARMY. THEREFORE, THE DECISION OF THE CHIEF OF ENGINEERS AS TO THE PROPRIETY OF THE DISTRICT ENGINEER'S ACTIONS IN YOUR SUSPENSION AND REMOVAL IS BINDING ON OUR OFFICE IN THE ABSENCE OF A RULING TO THE CONTRARY BY HIGHER AUTHORITY THAN THE CHIEF OF ENGINEERS WITHIN THE DEPARTMENT OF THE ARMY. WE SHOULD LIKE TO ADD THAT OUR AUTHORITY TO ALLOW RETROACTIVE PAY IN CASES OF THIS NATURE IS STRICTLY LIMITED BY LAW, AND, AS POINTED OUT ABOVE, IS LARGELY DEPENDENT UPON DETERMINATIONS MADE BY THE AGENCY CONCERNED OR BY THE UNITED STATES CIVIL SERVICE COMMISSION.

IN VIEW OF THIS, THE SETTLEMENT OF OUR CLAIMS DIVISION, DATED APRIL 9, 1958, DISALLOWING YOUR CLAIM, MUST BE AFFIRMED. AT HIS REQUEST, WE ARE FORWARDING A COPY OF THIS LETTER TO CONGRESSMAN TUCK.