B-139483, JUL. 29, 1959

B-139483, JUL. 29, 1959

TO MR. RALPH RUSSELL:

LETTERS IN YOUR BEHALF DATED MARCH 16, APRIL 9, AND MAY 1, 1959, TO THE SECRETARY OF THE INTERIOR, CONCERNING OUR SETTLEMENT OF OCTOBER 28, 1958, OF YOUR CLAIM ON ACCOUNT OF SUSPENSION AND REMOVAL AS AN EMPLOYEE OF THE FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, HAVE BEEN REFERRED HERE FOR CONSIDERATION.

OUR RECORDS SHOW THAT, FOLLOWING YOUR SUSPENSION ON OCTOBER 13, 1953, YOU WERE TERMINATED ON APRIL 9, 1954, PURPORTEDLY UNDER AUTHORITY OF THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, AND EXECUTIVE ORDER NO. 10450, AND THAT YOU WERE RESTORED ON JULY 1, 1958, AS A RESULT OF THE DECISION OF THE UNITED STATES SUPREME COURT IN COLE V. YOUNG. 351 U.S. 536.

OUR SETTLEMENT OF OCTOBER 28, 1958, ALLOWED BACK PAY FOR THE PERIOD OF SUSPENSION AND REMOVAL UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948 (PUBLIC LAW 623), 5 U.S.C. 652 (B), AND, BECAUSE OF EXPRESS TERMS OF THE STATUTE, WE ADVISED ON THE SETTLEMENT THAT ANNUAL LEAVE DOES NOT ACCRUE DURING PERIODS OF SUSPENSION. THE BACK PAY WAS COMPUTED AT THE RATE OF COMPENSATION RECEIVED ON THE DATE OF SUSPENSION, AS PROVIDED BY THE STATUTE.

THE ITEMS CONCERNING WHICH RECONSIDERATION IS REQUESTED ARE DISPOSED OF AS FOLLOWS:

1. CASH PAYMENTS FOR ANNUAL LEAVE WHICH HAVE ACCRUED DURING THE PERIOD OF SUSPENSION AND REMOVAL.

WE CONCLUDED IN OUR DECISION OF JULY 22, 1959, TO THE POSTMASTER GENERAL, COPY ENCLOSED, THAT WE WOULD CONSIDER COLE V. YOUNG RESTORATION CASES AS FALLING WITHIN THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 26, 1950, CITED ABOVE. WE HAVE CONSTRUED THAT STATUTE AS AUTHORIZING THE CREDITING OF LEAVE FOR PERIODS OF SUSPENSION AND REMOVAL THEREUNDER, SUBJECT TO STATUTORY CEILINGS ON THE ACCUMULATION OF LEAVE. 31 COMP. GEN. 58; 35 ID. 121. WHILE THE COURT OF CLAIMS HELD IN HYNNING V. UNITED STATES, DECIDED MARCH 5, 1958, THAT IT WAS EMPOWERED TO AWARD JUDGMENT FOR THE MONEY VALUE OF ABOVE-CEILING ANNUAL LEAVE ACCRUALS, WE HAVE DECIDED TO ADHERE TO THE POSITION WE TOOK IN 35 COMP. GEN. 121, SUPRA, AT LEAST UNTIL FURTHER JUDICIAL PRECEDENT REQUIRES US TO RECONSIDER OUR POSITION. 38 COMP. GEN. 249, 251. THEREFORE, SINCE THE ACCUMULATION OF 439 HOURS OF ANNUAL LEAVE TO YOUR CREDIT ON THE DATE OF SUSPENSION, WHICH NOW HAS BEEN RECREDITED, IS THE MAXIMUM PERMITTED BY LAW (5 U.S.C. 2066 (A) (, NO ADDITIONAL ANNUAL LEAVE MAY BE CREDITED. IN ANY EVENT, THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B AND G, AUTHORIZES CASH PAYMENTS FOR LEAVE ONLY IN THE CASES OF EMPLOYEES WHO ARE SEPARATED FROM SERVICE, WHO ENTER UPON ACTIVE SERVICE IN THE ARMED FORCES, OR WHO DIE; AND NONE OF THOSE CONDITIONS HAVE OCCURRED IN YOUR CASE SINCE THE DATE OF RESTORATION.

THERE IS NO STATUTORY CEILING ON THE ACCUMULATION OF SICK LEAVE, AND WE SHALL ADVISE THE SECRETARY OF THE INTERIOR THAT WE HAVE NO OBJECTION TO HIS CREDITING TO YOUR ACCOUNT OF SICK LEAVE ACCRUAL FOR THE PERIOD OF SUSPENSION AND TERMINATION.

2. RECOMPUTATION OF BACK PAY TO ALLOW CREDIT FOR PERIODIC STEP INCREASES, STATUTORY BASE PAY INCREASED AND THE LONGEVITY INCREASE WHICH WOULD HAVE BECOME DUE DURING THE PERIOD OF SUSPENSION AND TERMINATION.

THE BACK PAY FORMULA PRESCRIBED BY THE ACT OF AUGUST 26, 1950, SUPRA, IS AS FOLLOWS:

"* * * AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON.'

THE UNDERSCORED PORTION OF THE STATUTE NECESSARILY PRECLUDES THE TAKING INTO ACCOUNT OF ANY CHANGE IN THE RATE OF COMPENSATION WHICH MIGHT HAVE OCCURRED DURING A PERIOD OF SUSPENSION OR TERMINATION. 38 COMP. GEN. 132; 35 ID. 121; HYNNING V. UNITED STATES, SUPRA. SINCE BACK PAY WAS COMPUTED IN THIS CASE UPON THE BASIS OF THE RATE YOU WERE RECEIVING ON THE DATE OF SUSPENSION, NO REVISION OF THE SETTLEMENT IN THAT RESPECT IS REQUIRED.

3. REFUND OF DEDUCTIONS FROM BACK PAY FOR FEDERAL EMPLOYEES GROUP LIFE INSURANCE.

SECTION 5 (A) OF THE LIFE INSURANCE ACT, 5 U.S.C. 2094 (A), PROVIDES FOR AUTOMATIC COVERAGE OF ELIGIBLE EMPLOYEES UNLESS WRITTEN NOTICE IS GIVEN OF A DESIRE NOT TO BE COVERED AND, ALSO, FOR THE WITHHOLDING OF PREMIUMS FROM SALARY PAYMENTS. THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT TO THE ACT, 5 CFR 37.3, FIXED THE EFFECTIVE DATE AS THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER AUGUST 28, 1954, WHICH, GENERALLY, WAS AUGUST 29, 1954.

YOU WERE NOT ACTUALLY IN SERVICE ON THE EFFECTIVE DATE OF THE ACT. HOWEVER, YOUR RESTORATION WITH BACK PAY (NOW HELD TO BE PROPERLY FOR DETERMINATION UNDER THE 1950 STATUTE) HAS THE EFFECT OF CONSTITUTING YOU AN EMPLOYEE OF THE UNITED STATES RETROACTIVELY EFFECTIVE TO THE DATE OF TERMINATION, SO THAT, IN RETROSPECT, YOU WERE AN EMPLOYEE SUBJECT TO THE LIFE INSURANCE ACT ON AUGUST 29, 1954. WE NOTE THAT THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 22.306, RELATING TO APPEALS OF VETERANS PREFERENCE EMPLOYEES NOW PROVIDE FOR POSTHUMOUS CONSIDERATION OF APPEALS AND ISSUANCE OF RETROACTIVE, CORRECTIVE RECOMMENDATIONS IN THE CASE OF DECEASED PPELLANTS; AND WE CANNOT SAY THAT THE COURTS WOULD NOT TAKE THE SAME VIEW IN SUITS CONTESTING THE VALIDITY OF REMOVALS FROM FEDERAL SERVICE. THEREFORE, IT IS POSSIBLE THAT INSURANCE BENEFITS (WHICH INCLUDE PAYMENTS ON ACCOUNT OF DISMEMBERMENT AS WELL AS DEATH) MAY BECOME RETROACTIVELY AVAILABLE IN THE CASES OF INDIVIDUALS WHOSE REMOVALS ARE APPEALED. THERE BEING POTENTIAL COVERAGE, THE ASSESSMENT OF PREMIUMS IS, IN OUR OPINION, REQUIRED.

FOR THE REASONS STATED ABOVE, WE CONCLUDE THAT THE DEDUCTION FOR LIFE INSURANCE IN THE SETTLEMENT OF YOUR CLAIM WAS PROPER AND THE ACTION IS SUSTAINED.

ANY FURTHER REPRESENTATION HERE BY AN ATTORNEY OR AGENT IN CONNECTION WITH YOUR CLAIM SHOULD BE ACCOMPANIED BY A DULY EXECUTED POWER OF ATTORNEY OR OTHER DOCUMENTARY EVIDENCE OF THE ATTORNEY'S OR AGENT'S AUTHORITY TO ACT FOR YOU. 4 CFR 1.8, 31.3.