B-138627, FEBRUARY 16, 1959, 38 COMP. GEN. 556

B-138627, FEBRUARY 16, 1959, 38 COMP. GEN. 556

CIVILIAN PERSONNEL - REMOVALS, SUSPENSIONS, ETC. - COLE V. YOUNG RESTORATIONS - PERIODS OF INCAPACITY A PERIOD OF INCAPACITY DUE TO MENTAL ILLNESS DURING WHICH A VETERAN'S PREFERENCE EMPLOYEE WHO WAS ERRONEOUSLY SEPARATED FROM A NONSENSITIVE POSITION UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, WAS UNABLE TO PERFORM HIS DUTIES IS FOR EXCLUSION FROM THE PERIOD FOR WHICH BACK PAY UNDER SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652 (B) (2), MAY BE ALLOWED UPON REINSTATEMENT OR RESTORATION TO DUTY. IN CASE OF DIFFICULTY IN ASCERTAINING WITH REASONABLE CERTAINTY THE DURATION OF A PERIOD OF INCAPACITY DUE TO MENTAL ILLNESS OF AN EMPLOYEE WHO WAS ERRONEOUSLY SEPARATED FROM A NONSENSITIVE POSITION UNDER THE ACT OF AUGUST 26, 1950, A STIPULATION BY THE EMPLOYEE'S ATTORNEY AS TO THE PERIOD THE INCAPACITY CONTINUED WILL NOT BE OBJECTED TO IN ORDER TO SETTLE THE AMOUNT OF BACK PAY TO WHICH THE EMPLOYEE IS ENTITLED UNDER SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652 (B) (2), UPON REINSTATEMENT OF THE EMPLOYEE FOR ONE DAY IN A LEAVE-WITHOUT-PAY STATUS, WITH RESIGNATION TO BE EFFECTIVE AT THE CLOSE OF BUSINESS ON THAT DATE.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, FEBRUARY 16, 1959:

ON FEBRUARY 6, 1959, THE ACTING SECRETARY REQUESTED OUR DECISION CONCERNING THE PAYMENT OF BACK PAY UPON REINSTATEMENT OF A FORMER EMPLOYEE AFTER A PERIOD OF SUSPENSION AND REMOVAL FROM HIS NONSENSITIVE POSITION PURSUANT TO EXECUTIVE ORDER NO. 10450, FOR REASONS OF NATIONAL SECURITY.

THE EMPLOYEE, WHO HAS VETERANS PREFERENCE, WAS SUSPENDED ON JANUARY 14, 1954, AND WAS REMOVED ON APRIL 9, 1954, FOLLOWING A HEARING. IN MARCH 1958, AFTER SEVERAL UNSUCCESSFUL ATTEMPTS TO OBTAIN REINSTATEMENT, HE INSTITUTED AN ACTION IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SEEKING REINSTATEMENT. THE DEPARTMENT OF JUSTICE HAS INFORMED YOU THAT, IN VIEW OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN COLE V. YOUNG, 351 U.S. 536, AND THE DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN DUNCAN V. SUMMERFIELD, 251 F.2D 896, NO SUBSTANTIAL DEFENSE TO THE ACTION EXISTS. THE ACTING SECRETARY SAYS THAT YOUR DEPARTMENT DESIRES TO SETTLE THE COURT PROCEEDINGS BY ACCEPTING THE EMPLOYEE'S PROPOSAL FOR REINSTATEMENT FOR ONE DAY IN A LEAVE -WITHOUT-PAY STATUS, WITH HIS RESIGNATION TO BE EFFECTIVE AT THE CLOSE OF BUSINESS ON THAT DAY.

THE DOUBT CONCERNING COMPENSATION FOR THE PERIOD OF SUSPENSION AND REMOVAL STEMS FROM THE EMPLOYEE'S APPARENT DISABILITY ON ACCOUNT OF MENTAL ILLNESS DURING AT LEAST A PORTION OF SUCH PERIOD. IT APPEARS FROM THE ACTING SECRETARY'S LETTER THAT THE EMPLOYEE HAS BEEN RECEIVING COMPENSATION FROM THE VETERANS ADMINISTRATION FOR SERVICE-CONNECTED DISABILITY (MENTAL ILLNESS) SINCE DECEMBER 12, 1946, THE DISABILITY HAVING BEEN RATED AT VARIOUS TIMES AS 50 PERCENT, 70 PERCENT, AND 100 PERCENT; THAT THE 100 PERCENT RATING WAS APPLIED FROM DECEMBER 12, 1946, THROUGH SEPTEMBER 2, 1947 (DURING MOST OF WHICH PERIOD HE WAS EMPLOYED IN YOUR DEPARTMENT), AND AGAIN FROM JULY 1, 1954, THROUGH FEBRUARY 4, 1956 (DURING THE PERIOD OF REMOVAL); THAT YOUR DEPARTMENT LEARNED FROM THE EMPLOYEE'S WIFE IN AUGUST OF 1954 THAT HE WAS CONFINED TO A MENTAL HOSPITAL AND LATER, FROM HIS ATTORNEY, THAT THE HOSPITALIZATION CONTINUED FOR APPROXIMATELY TWO MONTHS AND THAT AS OF DECEMBER 1954 THE EMPLOYEE NO LONGER WAS UNDER PSYCHIATRIC CARE; AND THAT, AS ALREADY MENTIONED, THE VETERANS ADMINISTRATION THEREAFTER CONTINUED COMPENSATION AT THE 100 PERCENT RATE UNTIL FEBRUARY 4, 1956, WHEN THE RATING WAS REDUCED TO 70 PERCENT.

UNDER THE DOCTRINE OF COLE V. YOUNG, SUPRA, IT WAS IN ERROR TO APPLY THE SUMMARY SUSPENSION AND REMOVAL PROCEDURES OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, AS AUTHORIZED BY EXECUTIVE ORDER NO. 10450, IN THE CASE OF THE SUBJECT EMPLOYEE WHO OCCUPIED A NONSENSITIVE POSITION AND WHO WAS ENTITLED TO THE PROCEDURAL PROTECTION OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863. WE HAVE HELD THAT EMPLOYEES IN THIS CATEGORY ARE ENTITLED TO BACK PAY UNDER SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (2), UPON REINSTATEMENT AND RESTORATION TO DUTY. 36 COMP. GEN. 225; IBID. 762. HOWEVER, THE COURT OF CLAIMS HAS HELD THAT BACK PAY MAY NOT BE RECOVERED FOR A PERIOD OF WRONGFUL SEPARATION WHEN THERE IS A SHOWING THAT BECAUSE OF INCAPACITATING ILLNESS THE EMPLOYEE WAS NOT READY AND ABLE TO PERFORM HIS JOB. ARMAND V. UNITED STATES, 136 C.1CLS. 339, 343; CF. 35 COMP. GEN. 250. THEREFORE, THE PERIOD DURING WHICH THE SUBJECT EMPLOYEE WOULD NOT HAVE BEEN READY AND ABLE IN ANY EVENT TO PERFORM HIS DUTIES BECAUSE OF THE INCAPACITY RESULTING FROM MENTAL ILLNESS PROPERLY IS FOR EXCLUSION FROM THE PERIOD FOR WHICH BACK PAY MAY BE ALLOWED.

THE ACTING SECRETARY SAYS THAT IN VIEW OF THE DIFFICULTY AT THIS TIME OF ASCERTAINING WITH CERTAINTY THE DURATION OF THE EMPLOYEE'S UNFITNESS FOR DUTY, YOUR DEPARTMENT WOULD LIKE TO ACCEPT THE OFFER OF THE EMPLOYEE'S ATTORNEY TO STIPULATE FOR PURPOSES OF SETTLEMENT OF THE CASE THAT THE INCAPACITY CONTINUED FOR 12 MONTHS BEGINNING WITH JULY 1, 1954. UNDER THE CIRCUMSTANCES, WE WOULD INTERPOSE NO OBJECTION TO PAYMENT OF BACK PAY UPON THE BASIS OF EXCLUDING SUCH 12-MONTH PERIOD ONLY, SHOULD YOU DECIDE TO REINSTATE THE EMPLOYEE IN THE MANNER HEREINBEFORE DISCUSSED.

WE SHOULD POINT OUT THAT BACK PAY UNDER SECTION 6 (B) (2) OF THE 1912 ACT, AS AMENDED, SUPRA, IS FOR COMPUTATION AT THE RATE RECEIVED ON THE DATE OF SUSPENSION OR DISCHARGE, THUS EXCLUDING PERIODIC STEP INCREASES OR STATUTORY RATE INCREASES. WE UNDERSTAND THAT THE CASE OF LEINER V. UNITED STATES, C.1CLS. NO. 576-57, DECIDED OCTOBER 8, 1958, CITED BY THE ACTING SECRETARY, IS NOT YET FINAL, AND IT HAS NOT AS YET BEEN CONSIDERED BY US AS REQUIRING RECONSIDERATION OF OUR DECISION IN 36 COMP. GEN. 225, SUPRA. IN ANY EVENT, THE HOLDING OF THE COURT IN THAT CASE IS TO THE EFFECT THAT THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 26, 1950, SUPRA, APPLY IN THE CASE OF AN EMPLOYEE RESTORED AS THE RESULT OF COLE V. YOUNG, SUPRA. SO FAR AS HERE PERTINENT, THE MEASURE OF BACK PAY UNDER THE 1950 STATUTE IS THE SAME AS UNDER THE 1912 ACT, AS AMENDED. 32 COMP. GEN. 132; 35 COMP. GEN. 121; HYNNING V. UNITED STATES, C.1CLS. NO. 305-56, DECIDED MARCH 5, 1958.