B-141501, MARCH 14, 1960, 39 COMP. GEN. 639

B-141501, MARCH 14, 1960, 39 COMP. GEN. 639

CIVILIAN PERSONNEL - REDUCTION-IN-FORCE DEMOTIONS - BACK PAY - COMPETITIVE AND EXCEPTED POSITIONS SINCE PROCEDURES FOR REDUCTIONS IN FORCE ARE PROVIDED FOR IN SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 861, AND UNDER SECTIONS 11 AND 19 OF THE ACT, 5 U.S.C. 860, ID. 868, THE CIVIL SERVICE COMMISSION HAS AUTHORITY TO MAKE AND TO ENFORCE RULES AND REGULATIONS TO CARRY OUT THE INTENT AND PURPOSE OF THE ACT, THE COMMISSION HAS AUTHORITY TO ISSUE REGULATIONS OF GENERAL APPLICABILITY TO PROVIDE THAT ADMINISTRATIVE OFFICERS SHALL, WHEN THERE HAS BEEN A DETERMINATION ON AN AGENCY GRIEVANCE APPEAL THAT THE DEMOTION OF AN EMPLOYEE IN A REDUCTION IN FORCE WAS UNJUSTIFIED OR UNWARRANTED, RESTORE THE EMPLOYEE TO THE PROPER GRADE AND SALARY RETROACTIVELY EFFECTIVE TO THE DATE OF THE IMPROPER DEMOTION, WITH BACK PAY COMPUTED ON THE BASIS OF THE COMPENSATION THE EMPLOYEE WOULD HAVE EARNED IN THE FORMER GRADE OR IN A PROPER INTERMEDIATE GRADE, AS APPROPRIATE. SINCE EMPLOYEES WHO HOLD EXCEPTED POSITIONS ARE COVERED BY THE RETENTION PREFERENCE REGULATIONS ISSUED PURSUANT TO THE REDUCTION-IN FORCE PROVISIONS OF SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 861, THE CIVIL SERVICE COMMISSION MAY PROVIDE FOR RETROACTIVE RESTORATION AND BACK PAY OF SUCH EMPLOYEES WHO ARE DEMOTED IN CONNECTION WITH REDUCTIONS IN FORCE. EMPLOYEES WHO HOLD EXCEPTED POSITIONS AND WHO ARE FURLOUGHED OR SEPARATED IN REDUCTIONS IN FORCE ARE COVERED BY THE BACK PAY PROVISIONS OF SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652 (B) (3). IN THE ABSENCE OF ANY STATUTE WHICH WOULD AUTHORIZE THE RETROACTIVE RESTORATION OF NONPREFERENCE EMPLOYEES IN THE COMPETITIVE SERVICE WHO ARE DEMOTED FOR A CAUSE OTHER THAN A REDUCTION IN FORCE, AN EMPLOYING AGENCY MAY NOT TAKE ACTION TO RESTORE SUCH EMPLOYEES, WHOSE DEMOTIONS ARE HELD UPON APPEAL TO BE IMPROPER, RETROACTIVELY TO DATE OF DEMOTION AND TO GRANT THEM BACK PAY. NONPREFERENCE EMPLOYEES WHO HOLD EXCEPTED POSITIONS ARE NOT ENTITLED TO JOB PROTECTION AND BACK PAY RIGHTS IN MATTERS OTHER THAN REDUCTIONS IN FORCE, SO THAT AN EMPLOYING AGENCY IS NOT AUTHORIZED IN DIRECT RETROACTIVE CORRECTIVE RESTORATION ACTION WITH BACK PAY AS THE RESULT OF AN AGENCY GRIEVANCE APPEAL BY AN EMPLOYEE IN THE EXCEPTED SERVICE WHEN THE ACTION APPEALED FROM IS A SUSPENSION, DEMOTION, OR REMOVAL FOR CAUSE OTHER THAN REDUCTION IN FORCE. PREFERENCE ELIGIBLE EMPLOYEES IN THE EXCEPTED SERVICE AND THOSE IN THE COMPETITIVE SERVICE ARE ENTITLED TO THE BENEFITS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 863, TO WHICH THE REGULATORY AND MANDATORY RESTRICTION AUTHORITY OF THE CIVIL SERVICE COMMISSION ATTACHES; AND, THEREFORE, AS IN REDUCTION-IN-FORCE CASES, THE COMMISSION HAS AUTHORITY TO PROVIDE BY REGULATION FOR RETROACTIVE RESTORATION WITH BACK PAY IN CONNECTION WITH AGENCY GRIEVANCE APPEALS OF PREFERENCE ELIGIBLE EMPLOYEES IN DEMOTION CASES NOT INVOLVING REDUCTIONS IN FORCE, ENTITLEMENT TO BACK PAY IN CASES OF DISCHARGES, SUSPENSIONS, AND FURLOUGHS WITHOUT PAY OF SUCH PREFERENCE ELIGIBLE EMPLOYEES UNDER SECTION 14 BEING PAYABLE UNDER SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (2).

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 14, 1960:

WE REFER TO YOUR LETTER OF DECEMBER 14, 1959, SUBMITTING FOR OUR DECISION THE FOLLOWING QUESTIONS CONCERNING THE AUTHORITY OF EMPLOYING AGENCIES TO DIRECT RETROACTIVE CORRECTIVE ACTION WITH BACK PAY IN DEMOTION CASES:

(1) IS AN EMPLOYING AGENCY AUTHORIZED TO DIRECT RETROACTIVE CORRECTIVE ACTION WITH BACK PAY AS THE RESULT OF AN AGENCY GRIEVANCE APPEAL BY AN EMPLOYEE IN THE COMPETITIVE SERVICE WHEN THE ACTION APPEALED FROM IS (A) A DEMOTION FOR A CAUSE OTHER THAN REDUCTION IN FORCE, OR (B) A DEMOTION CAUSED BY REDUCTION IN FORCE?

(2) IS AN EMPLOYING AGENCY AUTHORIZED TO DIRECT RETROACTIVE CORRECTIVE ACTION WITH BACK PAY AS THE RESULT OF AN AGENCY GRIEVANCE APPEAL BY AN EMPLOYEE IN THE EXCEPTED SERVICE WHEN THE ACTION APPEALED FROM IS (A) A SUSPENSION, DEMOTION, OR REMOVAL FOR CAUSE OTHER THAN REDUCTION IN FORCE, OR (B) A FURLOUGH, DEMOTION, OR SEPARATION CAUSED BY REDUCTION IN FORCE?

WE DO NOT UNDERSTAND THAT YOUR SUBMISSION RELATES TO CASES INVOLVING ADVERSE ACTIONS FOR NATIONAL SECURITY REASONS WITHIN THE PROVISIONS OF THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, AND, THEREFORE, NOTHING SAID HEREIN IS INTENDED TO RELATE TO SUCH ACTIONS.

THE GENERAL RULE IS THAT, IN THE ABSENCE OF STATUTORY AUTHORITY OTHERWISE, AN EMPLOYEE WHO HAS BEEN REDUCED IN GRADE AND SALARY MAY NOT BE RETROACTIVELY RESTORED TO A HIGHER GRADE WITH BACK PAY. 23 COMP. GEN. 486; 29 ID. 135; 36 ID. 598. CF. 16 COMP. GEN. 979.

YOU CITE PARAGRAPH (1) OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948 ( PUBLIC LAW 623), 5 U.S.C. 652 (B), WHICH PROVIDES FOR BACK PAY AND SERVICE CREDIT IN CASES OF REMOVALS AND SUSPENSIONS FROM THE CLASSIFIED (COMPETITIVE) CIVIL SERVICE UNDER SUBSECTION (A) WHEN, AFTER THE FILING OF AN ANSWER TO CHARGES OR AFTER APPEAL TO PROPER AUTHORITY, THERE HAS BEEN A RESTORATION TO DUTY ON THE GROUND THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. PARAGRAPH (3) OF SAID SECTION 6 (B), ALSO CITED BY YOU, PROVIDES FOR BACK PAY AND SERVICE CREDIT UNDER SIMILAR CONDITIONS OF RESTORATION AFTER REMOVALS OR SUSPENSIONS (FURLOUGH) WITHOUT PAY IN REDUCTIONS IN FORCE. PARAGRAPH (2) RELATES TO CASES INVOLVING DISCHARGES, SUSPENSIONS OR FURLOUGHS WITHOUT PAY UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863. NO PROVISION IS MADE FOR CASES INVOLVING RESTORATION AFTER DEMOTION, AND, THEREFORE, SAID PARAGRAPHS (1), (2), AND (3) FURNISH NO BASIS FOR BACK PAY IN SUCH CASES. 28 COMP. GEN. 200, 205; 36 ID. 598, SUPRA; GREGORY V. UNITED STATES, 123 C.1CLS. 794, 800.

CONSIDERING FIRST THE REDUCTION-IN-FORCE CASES, WE REFER TO SECTION 19 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 868, WHICH PROVIDES AS FOLLOWS:

IT SHALL BE THE AUTHORITY AND DUTY OF THE CIVIL SERVICE COMMISSION IN ALL CASES UNDER THE CLASSIFIED CIVIL SERVICE TO MAKE AND ENFORCE APPROPRIATE RULES AND REGULATIONS TO CARRY INTO FULL EFFECT THE PROVISIONS, INTENT, AND PURPOSE OF THIS CHAPTER ( ACT) AND SUCH EXECUTIVE ORDERS AS MAY BE ISSUED PURSUANT THERETO AND IN FURTHERANCE THEREOF: PROVIDED, THAT ANY RECOMMENDATION BY THE CIVIL SERVICE COMMISSION, SUBMITTED TO ANY FEDERAL AGENCY, ON THE BASIS OF THE APPEAL OF ANY PREFERENCE ELIGIBLE, EMPLOYEE OR FORMER EMPLOYEE, SHALL BE COMPLIED WITH BY SUCH AGENCY.

SINCE PROCEDURES FOR REDUCTIONS IN FORCE ARE PROVIDED FOR IN SECTION 12 OF THE ACT, 5 U.S.C. 861, IT FOLLOWS THAT THE AUTHORITY OF THE CIVIL SERVICE COMMISSION CONFERRED BY SECTION 19 APPLIES TO REDUCTION-IN FORCE CASES, INCLUDING DEMOTIONS INCIDENT TO REDUCTIONS IN FORCE ( ADLER ET AL. V. UNITED STATES, 129 C.1CLS. 150). FOLLOWING THE DECISIONS OF THE COURT OF CLAIMS IN THE ADLER CASE AND GOODWIN V. UNITED STATES, 127 C.1CLS. 417, WE HAVE HELD IN CONNECTION WITH INDIVIDUAL APPEALS TO THE CIVIL SERVICE COMMISSION THAT A MANDATORY RECOMMENDATION OF THE COMMISSION CALLING FOR RETROACTIVE RESTORATION OF AN EMPLOYEE DEMOTED IN A REDUCTION IN FORCE CARRIES WITH IT THE RIGHT TO BACK PAY. SEE 36 COMP. GEN. 598, 599, SUPRA, WHERE OUR POSITION IS DISCUSSED.

BROAD AUTHORITY HAS BEEN CONFERRED UPON THE COMMISSION BY SECTION 19 QUOTED ABOVE AND BY SECTION 11, 5 U.S.C. 860, TO PROMULGATE APPROPRIATE RULES AND REGULATIONS FOR THE ADMINISTRATION AND ENFORCEMENT OF THE PROVISIONS OF THE VETERANS PREFERENCE ACT. WE ARE OF THE OPINION THEREFORE THAT, IN LINE WITH THE RATIONALE OF THE ADLER AND GOODWIN CASES, THE COMMISSION IS EMPOWERED TO ISSUE REGULATIONS OF GENERAL APPLICABILITY PROVIDING THAT THE APPROPRIATE ADMINISTRATIVE OFFICER SHALL, WHEN THERE HAS BEEN A DECISION ON AN AGENCY GRIEVANCE APPEAL THAT THE DEMOTION OF THE APPELLANT IN A REDUCTION IN FORCE WAS UNJUSTIFIED OR UNWARRANTED, RESTORE THE APPELLANT TO THE PROPER GRADE AND SALARY (EITHER THE FORMER OR INTERMEDIATE GRADE AND SALARY AS APPROPRIATE) RETROACTIVELY EFFECTIVE TO THE DATE OF THE IMPROPER DEMOTION. BACK PAY SHOULD BE COMPUTED UPON THE BASIS OF THE COMPENSATION THE EMPLOYEE WOULD HAVE EARNED IN THE FORMER GRADE OR IN A PROPER INTERMEDIATE GRADE. CF. 34 COMP. GEN. 561, 563.

SINCE EMPLOYEES IN THE EXCEPTED SERVICE ARE COVERED BY THE RETENTION PREFERENCE REGULATIONS ISSUED PURSUANT TO SECTION 12 OF THE VETERANS PREFERENCE ACT, 5 C.F.R. 20, PROVISION LIKEWISE MAY BE MADE BY REGULATIONS OF THE COMMISSION FOR THE RETROACTIVE RESTORATION AND PAYMENT OF SUCH EMPLOYEES DEMOTED IN CONNECTION WITH REDUCTIONS IN FORCE. EXCEPTED EMPLOYEES WHO ARE FURLOUGHED OR SEPARATED IN REDUCTIONS IN FORCE ARE COVERED BY THE BACK PAY PROVISIONS OF SECTION 6 (B) (3) OF THE 1912, ACT, AS AMENDED, SUPRA.

SUBDIVISION (B) OF QUESTIONS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE SUBJECT TO THE PROMULGATION OF REGULATIONS DISCUSSED ABOVE.

WE HAVE FOUND NO STATUTORY AUTHORITY, AND NONE HAS BEEN DIRECTED TO OUR ATTENTION, WHICH WOULD PERMIT NONPREFERENCE EMPLOYEES IN THE COMPETITIVE SERVICE WHO ARE DEMOTED FOR A CAUSE OTHER THAN A REDUCTION IN FORCE TO BE RETROACTIVELY RESTORED, AND, THEREFORE, SUBDIVISION (A) OF QUESTION (1) IS ANSWERED IN THE NEGATIVE AS TO SUCH NONPREFERENCE EMPLOYEES. 36 COMP. GEN. 598, SUPRA.

NONPREFERENCE EMPLOYEES IN THE EXCEPTED SERVICE ARE NOT ENTITLED TO JOB PROTECTION AND BACK PAY RIGHTS IN MATTERS OTHER THAN REDUCTION IN FORCE. CHOLLAR V. UNITED STATES, 130 C.1CLS. 338, AND CASES THERE CITED. CONSEQUENTLY, SUBDIVISION (A) OF QUESTION (2) IS ANSWERED IN THE NEGATIVE AS TO SUCH EMPLOYEES.

PREFERENCE EMPLOYEES IN THE EXCEPTED SERVICE, AS WELL AS THOSE IN THE COMPETITIVE SERVICE, ARE ENTITLED TO THE BENEFITS OF SECTION 14 OF THE VETERANS PREFERENCE ACT, AS AMENDED, SUPRA, IN CONNECTION WITH WHICH THE REGULATORY AND MANDATORY RESTORATION AUTHORITY OF THE CIVIL SERVICE COMMISSION ATTACHES, AND, THEREFORE, AS IN THE REDUCTION-IN FORCE CASES, WE BELIEVE IT COMPETENT FOR THE COMMISSION TO PROVIDE BY REGULATION FOR RETROACTIVE RESTORATION WITH BACK PAY IN CONNECTION WITH AGENCY GRIEVANCE APPEALS OF PREFERENCE EMPLOYEES IN DEMOTION CASES NOT INVOLVING REDUCTIONS IN FORCE. BACK PAY IN THE CASES OF DISCHARGES, SUSPENSIONS, AND FURLOUGH WITHOUT PAY UNDER SECTION 14 ARE COVERED BY SECTION 6 (B) (2) OF THE 1912 ACT, AS AMENDED, SUPRA. SUBDIVISION (A) OF QUESTIONS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE AS TO PREFERENCE EMPLOYEES, UNDER THE CONDITIONS STATED.