B-140969, B-141249, FEBRUARY 1, 1962, 41 COMP. GEN. 499

B-140969,B-141249: Feb 1, 1962

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ETC. - CLASSIFIED CIVIL SERVICE THE ONLY AUTHORITY FOR THE PAYMENT OF BACK PAY TO NONVETERAN EMPLOYEES WHO ARE ERRONEOUSLY REMOVED OR SUSPENDED FROM THE SERVICE IN OTHER THAN SECURITY CASES IS THE ACT OF AUGUST 24. UNDER WHICH BENEFITS ARE CONFINED TO PERSONS IN THE CLASSIFIED CIVIL SERVICE AND ALTHOUGH THE COURT OF CLAIMS IN ROBERTA I. AWARDED BACK COMPENSATION TO TWO NONVETERAN EMPLOYEES WHO AT THE TIME OF SEPARATION WERE NOT SERVING IN THE CLASSIFIED SERVICE TO BRING THEM UNDER THE 1946 ACT. THOSE CASES ARE NOT PRECEDENT FOR PAYMENT OF BACK PAY IN SIMILAR CASES IN THE ABSENCE OF AN AMENDMENT OR CHANGE TO THE 1948 ACT. AWARDED COMPENSATION FOR PERIODS OF UNWARRANTED SEPARATION TO NONVETERAN EMPLOYEES WHO AT THE TIME OF SEPARATION WERE NOT SERVING IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES AND WHO FOR THAT REASON WERE NOT SUBJECT TO THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10.

B-140969, B-141249, FEBRUARY 1, 1962, 41 COMP. GEN. 499

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - CLASSIFIED CIVIL SERVICE THE ONLY AUTHORITY FOR THE PAYMENT OF BACK PAY TO NONVETERAN EMPLOYEES WHO ARE ERRONEOUSLY REMOVED OR SUSPENDED FROM THE SERVICE IN OTHER THAN SECURITY CASES IS THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, UNDER WHICH BENEFITS ARE CONFINED TO PERSONS IN THE CLASSIFIED CIVIL SERVICE AND ALTHOUGH THE COURT OF CLAIMS IN ROBERTA I. THOMAS V. UNITED STATES, CT. CL. NO. 474 59, DECIDED MAY 3, 1961, AND ARTHUR B. DAUB V. UNITED STATES, CT. CL. NO. 533-59, DECIDED JULY 19, 1961, AWARDED BACK COMPENSATION TO TWO NONVETERAN EMPLOYEES WHO AT THE TIME OF SEPARATION WERE NOT SERVING IN THE CLASSIFIED SERVICE TO BRING THEM UNDER THE 1946 ACT, THOSE CASES ARE NOT PRECEDENT FOR PAYMENT OF BACK PAY IN SIMILAR CASES IN THE ABSENCE OF AN AMENDMENT OR CHANGE TO THE 1948 ACT.

TO THE SECRETARY OF THE ARMY, FEBRUARY 1, 1962:

THIS REFERS TO LETTER OF JANUARY 8, 1962, FROM THE UNDER SECRETARY OF THE ARMY STATING THAT THE COURT OF CLAIMS IN THE CASES OF ROBERTA I. THOMAS V. THE UNITED STATES, NO. 474-59, DECIDED MAY 3, 1961, AND ARTHUR B. DAUB V. THE UNITED STATES, NO. 533-59, DECIDED JULY 19, 1961, AWARDED COMPENSATION FOR PERIODS OF UNWARRANTED SEPARATION TO NONVETERAN EMPLOYEES WHO AT THE TIME OF SEPARATION WERE NOT SERVING IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES AND WHO FOR THAT REASON WERE NOT SUBJECT TO THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652.

IN BOTH CASES THE COURT RECOGNIZED THAT THE EMPLOYEES CONCERNED WERE NOT ENTITLED TO COMPENSATION UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948. COMPENSATION FOR THE PERIODS OF SEPARATION WAS GRANTED ON THE BASIS THAT THE SEPARATIONS WERE NOT IN CONSONANCE WITH THE REGULATIONS OF THE DEPARTMENT. THE QUESTION IS PRESENTED AS TO WHAT EFFECT THE ABOVE- MENTIONED COURT DECISIONS MAY HAVE REGARDING FUTURE CASES OF THIS NATURE AND WHETHER THE DEPARTMENT OF THE ARMY MAY HEREAFTER AWARD BACK PAY IN LIKE CIRCUMSTANCES.

THE BENEFITS OF THE SO-CALLED "BACK PAY" PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 355, ARE CONFINED--- SO FAR AS THEY RELATE TO NONVETERANS--- TO PERSONS IN THE "CLASSIFIED CIVIL ERVICE" AS THAT TERM IS USED IN THE SAID ACT AND DEFINED IN 5 U.S.C. 658. IN OUR DECISION B 83635, DATED JULY 19, 1949, 29 COMP. GEN. 29, WE HELD, QUOTING FROM THE SYLLABUS:

THE TERM "CLASSIFIED CIVIL SERVICE" AS USED IN SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, RESPECTING THE REMOVAL OR SUSPENSION WITHOUT PAY OF PERSONS IN THE CLASSIFIED SERVICE, HAS REFERENCE TO EMPLOYEES WHO HAVE A COMPETITIVE STATUS AND WHO ALSO ARE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE, AND, THEREFORE, NON- VETERAN EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION ARE ENTITLED, UNDER SECTION 6 (B) (1) OF THE ACT, TO COMPENSATION FOR SUCH PERIOD, PROVIDED THE EMPLOYEES WERE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE AT THE TIME OF REMOVAL.

THERE HAS BEEN NO AMENDMENT TO SECTION 6 (A) OF THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (A), THAT WOULD CAUSE US TO CHANGE THE OPINION RENDERED IN 29 COMP. GEN. 29.

THE AUTHORITY OF THE DEPARTMENT OF THE ARMY TO PAY FROM ITS APPROPRIATED FUNDS CLAIMS FOR BACK COMPENSATION ARISING FROM ERRONEOUS SUSPENSIONS AND REMOVALS IN CASES OTHER THAN THOSE COVERED BY THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 58 STAT. 387, 5 U.S.C. 851 NOTE, AND THE SECURITY ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, STEMS FROM THE ACT OF JUNE 10, 1948. IN THE THOMAS AND DAUB CASES THE COURT FOUND AS A MATTER OF LAW THAT THE FACTS THERE PRESENT DID NOT BRING THOSE CASES WITHIN THE PURVIEW OF THE 1948 ACT. NEITHER WERE THEY COVERED BY THE OTHER TWO STATUTES REFERRED TO.

THEREFORE, THERE IS NO STATUTORY AUTHORITY UNDER WHICH THE DEPARTMENT OF THE ARMY MAY OBLIGATE AND EXPEND ITS APPROPRIATIONS OTHERWISE AVAILABLE FOR THE PAYMENT OF SALARIES IN CASES SIMILAR TO THE THOMAS AND DAUB CASES. JUDGMENTS OF THE COURT OF CLAIMS ARE PAID UNDER 31 U.S.C. 724A.

IT FOLLOWS THAT THE QUESTION IN THE LAST PARAGRAPH OF THE UNDER SECRETARY'S LETTER MUST BE ANSWERED IN THE NEGATIVE.