B-136605, JUL. 22, 1958

B-136605: Jul 22, 1958

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WILLIAM FRANCIS MCDONNELL: REFERENCE IS MADE TO LETTERS OF JUNE 20 AND JUNE 27. TEDROW WAS AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION IN JUNE 1950 THERE WAS A REDUCTION IN FORCE WITHIN THE AGENCY AND ALL EMPLOYEES IN HIS COMPETITIVE LEVEL. ALL OF WHOM WERE VETERANS. TEDROW WAS FIRST OFFERED A GS-5 POSITION AND LATER A GS-6 POSITION BUT PRIOR TO ACCEPTING THE GS-6 POSITION HE APPEALED THE REDUCTION IN FORCE TO THE GS-5 POSITION TO THE UNITED STATES CIVIL SERVICE COMMISSION. THAT SINCE IT WAS DETERMINED THAT THE PROVISIONS OF THE RETENTION PREFERENCE REGULATIONS WERE OBSERVED IN THE REDUCTION-IN-FORCE ACTION TAKEN THERE WAS NO BASIS ON WHICH HIS APPEAL COULD BE SUSTAINED. THAT POSITION WAS ABOLISHED AND HE WAS ASSIGNED TO ANOTHER POSITION ON JUNE 24.

B-136605, JUL. 22, 1958

TO MR. WILLIAM FRANCIS MCDONNELL:

REFERENCE IS MADE TO LETTERS OF JUNE 20 AND JUNE 27, 1958, WITH ENCLOSURES, WRITTEN IN BEHALF OF MR. ROBERT D. TEDROW, JR., RELATIVE TO HIS CLAIM FOR AN AMOUNT ALLEGED TO BE DUE FOR RETROACTIVE PAY PLUS INTEREST AND ATTORNEY FEES BECAUSE OF BEING DOWNGRADED AS AN EMPLOYEE OF THE UNITED STATES GOVERNMENT.

THE RECORD SHOWS THAT WHILE MR. TEDROW WAS AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION IN JUNE 1950 THERE WAS A REDUCTION IN FORCE WITHIN THE AGENCY AND ALL EMPLOYEES IN HIS COMPETITIVE LEVEL, ALL OF WHOM WERE VETERANS, RECEIVED A REDUCTION IN FORCE NOTICE. MR. TEDROW WAS FIRST OFFERED A GS-5 POSITION AND LATER A GS-6 POSITION BUT PRIOR TO ACCEPTING THE GS-6 POSITION HE APPEALED THE REDUCTION IN FORCE TO THE GS-5 POSITION TO THE UNITED STATES CIVIL SERVICE COMMISSION. THE COMMISSION RULED ON JUNE 20, 1950, THAT SINCE IT WAS DETERMINED THAT THE PROVISIONS OF THE RETENTION PREFERENCE REGULATIONS WERE OBSERVED IN THE REDUCTION-IN-FORCE ACTION TAKEN THERE WAS NO BASIS ON WHICH HIS APPEAL COULD BE SUSTAINED. EFFECTIVE APRIL 15, 1951, MR. TEDROW RECEIVED A PROMOTION TO A GRADE GS- 7. THAT POSITION WAS ABOLISHED AND HE WAS ASSIGNED TO ANOTHER POSITION ON JUNE 24, 1951, AND PERFORMED THE DUTIES ATTACHED THERETO UNTIL APRIL 15, 1952, WHEN HE TRANSFERRED TO THE OFFICE OF SALARY STABILIZATION AS AN INVESTIGATOR (GENERAL) GS-9, WITH REEMPLOYMENT RIGHTS IN THE GENERAL SERVICES ADMINISTRATION. MR. TEDROW WAS GIVEN A NOTICE OF REDUCTION IN FORCE BY THE OFFICE OF SALARY STABILIZATION ON FEBRUARY 3, 1953, EFFECTIVE AT THE CLOSE OF BUSINESS MARCH 5, 1953. ON APRIL 10, 1953, HE ACCEPTED A POSITION AS GOVERNMENT ACCOUNTANT GS-6 WITH THE GENERAL SERVICES ADMINISTRATION, WHICH WAS HIS PERMANENT GRADE, SUBJECT TO HIS RIGHT TO APPEAL TO THE COMMISSION. IT APPEARS THAT ON FEBRUARY 20, 1953, MR. TEDROW HAD WRITTEN TO THE GENERAL SERVICES ADMINISTRATION THAT "HE HAD APPEALED TO THE CIVIL SERVICE COMMISSION WITH REGARD TO HIS ORIGINAL DOWNGRADING FROM GS-7 TO A GS-6.' ON APRIL 16, 1953, THE CHAIRMAN, BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, NOTIFIED HIM OF HIS FAILURE TO FILE A TIMELY APPEAL AND THAT IT APPEARED FROM THE RECORDS THAT THE GENERAL SERVICES ADMINISTRATION HAD COMPLIED FULLY WITH THE REGULATIONS IN SO FAR AS HIS REEMPLOYMENT RIGHTS WERE CONCERNED.

WITH RESPECT TO THE CONTENTION THAT HE PERFORMED DUTIES OF A HIGHER GRADE THAN THE GRADE TO WHICH ASSIGNED THE RECORD REVEALS THAT HE HAS RECEIVED THE COMPENSATION TO THE POSITION OR POSITIONS WHICH HE HELD. THE DECISIONS OF OUR OFFICE ARE TO THE EFFECT THAT AN EMPLOYEE CAN ONLY BE PAID THE COMPENSATION ATTACHED TO HIS REGULAR POSITION AND THAT HE IS NOT ENTITLED TO THE COMPENSATION OF THE POSITION TO THE DUTIES OF WHICH HE IS OFFICIALLY OR UNOFFICIALLY ASSIGNED OR DETAILED. SUCH HOLDING HAS BEEN SUSTAINED BY THE COURTS. THUS, THE COURT OF CLAIMS IN PRICE V. UNITED STATES, 80 F.SUPP. 542, STATES: "IT IS A WELL SETTLED PRINCIPLE OF LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITION TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM.' THAT RULE OF LAW WAS REAFFIRMED IN THE CASE OF COLEMAN V. UNITED STATES, 100 C.CLS. 41, AND DVORKIN V. UNITED STATES, 101 C.CLS. 296, CERTIORARI DENIED, 323 U.S. 730.

APPARENTLY YOU ARE OF THE VIEW THAT HIS REDUCTION IN GRADE WAS NOT ACCOMPLISHED IN ACCORDANCE WITH THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED. SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 387, AS AMENDED AUGUST 4, 1947, 61 STAT. 723, 5 U.S.C. 861, PROVIDES IN PART:

"IN ANY REDUCTION IN PERSONNEL IN ANY CIVILIAN SERVICE OF ANY FEDERAL AGENCY, COMPETING EMPLOYEES SHALL BE RELEASED IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS WHICH SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS: * * *.'

THE MATTER OF YOUR CLIENT'S QUALIFICATIONS FOR THE POSITIONS HERE IN QUESTION AS WELL AS HIS RIGHT TO SUCH POSITIONS OVER PERSONS ALLEGED TO BE NONVETERANS OR PERSONS WITH LESS RETENTION RIGHTS ARE NOT FOR DECISION BY OUR OFFICE, BUT RATHER WERE FOR DETERMINATION BY THE EMPLOYING AGENCY AND BY THE CIVIL SERVICE COMMISSION. ALSO OUR OFFICE HAS CONSISTENTLY HELD THAT SINCE ENTITLEMENT TO BACK PAY IS CONDITIONED BY THE BACK PAY STATUTE, 62 STAT. 355, U.S.C. 652 (B) (3), UPON THE RESTORATION OF AN EMPLOYEE EITHER ADMINISTRATIVELY OR BY MANDATE OF THE CIVIL SERVICE COMMISSION--- OR BY THE COURTS--- TO HIS FORMER POSITION OR ONE OF EQUIVALENT GRADE BACK PAY MAY NOT BE AUTHORIZED IN ABSENCE OF A RESTORATION UPON THE GROUND THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. AS STATED IN YOUR CORRESPONDENCE, BOTH THE GENERAL SERVICES ADMINISTRATION AND THE CIVIL SERVICE COMMISSION REFUSED CORRECTIVE ACTION. THEREFORE, THERE IS NO AUTHORITY UNDER THE VETERANS' PREFERENCE ACT, AS AMENDED, OR UNDER ANY OTHER STATUTE OF WHICH WE ARE AWARE, FOR ALLOWANCE OF THE CLAIM BY OUR OFFICE.

GENERALLY THE MATTER OF THE EMPLOYMENT AND PAYMENT OF ATTORNEYS IS A MATTER BETWEEN THE CLIENT AND THE ATTORNEY AND, IN THE ABSENCE OF A STATUTORY PROVISION OR A VALID AGREEMENT BASED ON A STATUTORY PROVISION, THERE IS NO AUTHORITY FOR ALLOWANCE OF AN ATTORNEY'S FEE TO A PARTY IN A CLAIM OR SUIT AGAINST THE GOVERNMENT. IN PIGGLY WIGGLY CORP. V. UNITED STATES, 112 C.CLS. 391, 432; 81 F.SUPP. 819, 829, THE UNITED STATES COURT OF CLAIMS REFUSED TO AWARD ATTORNEY'S FEES UNDER "* * * THE GENERAL RULE THAT ATTORNEY'S FEES ARE NOT ALLOWED IN SUITS AGAINST THE UNITED STATES IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION ALLOWING THEM * *

THEREFORE, IN VIEW OF THE FOREGOING THE DISALLOWANCES OF MR. TEDROW'S CLAIM WAS PROPER AND IS SUSTAINED.