B-136715, AUGUST 21, 1958, 38 COMP. GEN. 135

B-136715: Aug 21, 1958

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ARE RESTORED TO THEIR FORMER GRADES BECAUSE THE DEMOTION ACTIONS WERE FOUND TO BE PROCEDURALLY DEFECTIVE ARE ENTITLED TO BACK PAY FOR THE DEMOTION PERIOD UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944. PROVIDED THAT THE EMPLOYEES ARE PART OF A GROUP TO WHOM IDENTICAL ADVERSE PERSONNEL ACTIONS WERE TAKEN. THAT OTHER VETERANS OF THE SAME GROUP HAVE APPEALED TO THE CIVIL SERVICE COMMISSION AND OBTAINED RECOMMENDATIONS FOR CORRECTIVE ACTION AND THAT THE DEPARTMENTAL ACTION IS PREDICATED ON THE SAME GROUNDS AS THAT OF THE COMMISSION. DEMOTED EMPLOYEES WHO ARE NOT ENTITLED TO THE RIGHTS GRANTED UNDER SECTION 12 OR SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944. ARE NOT ENTITLED TO BACK PAY UPON AN ADMINISTRATIVE RESTORATION TO DUTY BECAUSE THE DEMOTION ACTIONS WERE FOUND TO BE PROCEDURALLY DEFECTIVE.

B-136715, AUGUST 21, 1958, 38 COMP. GEN. 135

CIVILIAN PERSONNEL - DEMOTIONS - RESTORATIONS - ADMINISTRATIVE APPEAL PROCEDURES - VETERANS AND NONVETERANS DEMOTED VETERANS PREFERENCE-ELIGIBLE EMPLOYEES WHO, AS THE RESULT OF APPEALS THROUGH DEPARTMENTAL PROCEDURES AS DISTINGUISHED FROM APPEALS TO THE CIVIL SERVICE COMMISSION, ARE RESTORED TO THEIR FORMER GRADES BECAUSE THE DEMOTION ACTIONS WERE FOUND TO BE PROCEDURALLY DEFECTIVE ARE ENTITLED TO BACK PAY FOR THE DEMOTION PERIOD UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 5 U.S.C. 863, THE SAME AS THOUGH THE RESTORATION ACTION HAD BEEN ORDERED BY THE COMMISSION, PROVIDED THAT THE EMPLOYEES ARE PART OF A GROUP TO WHOM IDENTICAL ADVERSE PERSONNEL ACTIONS WERE TAKEN, THAT OTHER VETERANS OF THE SAME GROUP HAVE APPEALED TO THE CIVIL SERVICE COMMISSION AND OBTAINED RECOMMENDATIONS FOR CORRECTIVE ACTION AND THAT THE DEPARTMENTAL ACTION IS PREDICATED ON THE SAME GROUNDS AS THAT OF THE COMMISSION. DEMOTED EMPLOYEES WHO ARE NOT ENTITLED TO THE RIGHTS GRANTED UNDER SECTION 12 OR SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 861, 863, ARE NOT ENTITLED TO BACK PAY UPON AN ADMINISTRATIVE RESTORATION TO DUTY BECAUSE THE DEMOTION ACTIONS WERE FOUND TO BE PROCEDURALLY DEFECTIVE.

TO THE SECRETARY OF THE NAVY, AUGUST 21, 1958:

ON JULY 1, 1958, THE ASSISTANT SECRETARY OF THE NAVY REQUESTED OUR DECISION REGARDING THE "BACK PAY" RIGHTS OF CERTAIN CIVILIAN EMPLOYEES OF THE DEPARTMENT OF THE NAVY WHO, AFTER ADVERSE PERSONNEL ACTIONS--- DEMOTIONS--- WERE SUCCESSFUL IN THEIR APPEALS THROUGH ADMINISTRATIVE CHANNELS AND RESTORED TO DUTY IN THE GRADES PREVIOUSLY HELD BECAUSE THEIR DEMOTIONS WERE FOUND TO HAVE BEEN PROCEDURALLY DEFECTIVE.

THE ASSISTANT SECRETARY CITES 34 COMP. GEN. 568 AND 35 ID. 543, FOR THE PROPOSITION THAT SUCCESSFUL APPELLANTS UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 AS AMENDED, 5 U.S.C. 863, WHO ARE RESTORED TO DUTY AFTER A DETERMINATION OF THE CIVIL SERVICE COMMISSION THAT PROCEDURAL ERROR OCCURRED IN CONNECTION WITH ADVERSE PERSONNEL ACTIONS, ARE ENTITLED TO THE BENEFITS OF THE ,BACK PAY" PROVISIONS OF 5 U.S.C. 652 (B). HE ALSO CITES 34 COMP. GEN. 561 AND SAYS THAT ON THE BASIS OF THAT DECISION HE ASSUMES THE RULE REGARDING SUSPENSIONS AND SEPARATIONS, AS EXPRESSED IN THE PREVIOUSLY CITED RULINGS, ALSO APPLIED TO DEMOTIONS.

THE SPECIFIC QUESTIONS UPON WHICH OUR DECISION IS REQUESTED ARE:

(1) WHETHER OR NOT PREFERENCE-ELIGIBLE EMPLOYEES WHO APPEAL THROUGH CHANNELS WITHIN THE DEPARTMENT OF THE NAVY FROM AN ADVERSE PERSONNEL ACTION, AND WHO WIN THEIR APPEALS BECAUSE OF ERRONEOUS PROCEDURAL ACTIONS ARE ENTITLED TO "BACK PAY" FOR THE PERIOD OF THE ERRONEOUS DEMOTION, SUSPENSION OR SEPARATION?

(2) WOULD THE SAME "BACK-PAY" RIGHTS AVAILABLE TO PREFERENCE ELIGIBLE EMPLOYEES BE AVAILABLE TO NONPREFERENCE ELIGIBLE EMPLOYEES WHO ARE SUCCESSFUL IN THEIR APPEALS THROUGH NAVAL CHANNELS?

IT IS STATED THAT THE PREFERENCE-ELIGIBLE EMPLOYEES WHO HAVE APPEALED THROUGH ADMINISTRATIVE PROCEDURES ARE IN THE SAME GROUP AS THOSE WHO APPEALED TO THE CIVIL SERVICE COMMISSION. THE CIVIL SERVICE COMMISSION, IN CONSIDERING THE CASES OF THOSE VETERANS WHO APPEALED TO THAT AGENCY, HAS DETERMINED THAT THERE HAD BEEN PROCEDURAL VIOLATIONS, AND, CONSEQUENTLY, UNDER THE DECISIONS CITED SUCH VETERANS ARE ENTITLED TO "BACK PAY.' FOR THE PURPOSES OF ANSWERING THE QUESTIONS PRESENTED, IT IS ASSUMED THAT THE EMPLOYEES INVOLVED WHO HAVE ELECTED TO USE THE PROCEDURES AVAILABLE TO THEM IN THE DEPARTMENT OF THE NAVY ARE, IN ALL MATERIAL ASPECTS, IN EXACTLY THE SAME POSITION AS THOSE WHO HAVE WON THEIR APPEALS THROUGH THE CIVIL SERVICE COMMISSION.

ON THE BASIS OF THAT ASSUMPTION, IT IS APPARENT THAT IF THESE EMPLOYEES HAD APPEALED TO THE COMMISSION THEY WOULD HAVE OBTAINED A FAVORABLE DECISION BECAUSE OF PROCEDURAL VIOLATIONS, AND ALSO WOULD HAVE BEEN ENTITLED TO "BACK PAY," UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944. ACCORDINGLY, UNDER THE CIRCUMSTANCES OUTLINED HEREIN WE VIEW THE APPEALS OF THOSE VETERANS WHO ELECTED TO APPEAL TO THE DEPARTMENT OF THE NAVY AS IN THE SAME CATEGORY AS THE APPEALS OF OTHER VETERANS IN THE SAME GROUP WHO APPEALED DIRECTLY TO THE CIVIL SERVICE COMMISSION AND THUS WITHIN THE PURVIEW OF THE DECISION OF MAY 3, 1955, 34 COMP. GEN. 561.

IT FOLLOWS THAT THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE SUBJECT TO THE QUALIFICATION INDICATED ABOVE, NAMELY (1) THAT THE EMPLOYEES WHO APPEALED TO THE AGENCY ARE PART OF A GROUP TO WHOM IDENTICAL ADVERSE PERSONNEL ACTIONS HAVE BEEN ISSUED; (2) OTHER VETERANS OF THE SAME GROUP HAVE APPEALED TO THE CIVIL SERVICE COMMISSION AND OBTAINED RECOMMENDATIONS FOR CORRECTIVE ACTION; AND (3) THE ACTION OF THE AGENCY IS PREDICATED ON THE SAME GROUNDS UNDERLYING THE RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION.

REGARDING THE SECOND QUESTION, WHICH WE FURTHER ASSUME IS CONCERNED WITH DEMOTIONS, OUR OFFICE KNOWS OF NO AUTHORITY TO ALLOW "BACK PAY" TO DEMOTED EMPLOYEES WHO ARE NOT ENTITLED TO THE RIGHTS GRANTED UNDER SECTION 12, 5 U.S.C. 861, OR SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 AS AMENDED. THEREFORE, THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE. SEE 36 COMP. GEN. 598.

IT IS NOTED THAT IN BOTH CASES CITED IN YOUR DEPARTMENT'S LETTER, SERVICE V. DULLES, 354 U.S. 363 AND HELEN I. WATSON V. UNITED STATES, C.1CLS. NO. 49895, DECIDED JUNE 4, 1958, THERE HAD BEEN AN ACTUAL DISMISSAL; HENCE, THE RULINGS IN THOSE CASES HAVE NO BEARING ON THE MATTER HERE INVOLVED INSOFAR AS THE DEMOTION SITUATION IS CONCERNED.