B-147366, OCTOBER 27, 1961, 41 COMP. GEN. 273

B-147366: Oct 27, 1961

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WHICH WAS SUBSEQUENTLY DETERMINED TO HAVE BEEN UNWARRANTED. IS REGARDED AS BEING IN THE SAME CATEGORY AS AN EMPLOYEE IN A NONPAY STATUS FOR ANNUAL LEAVE EARNING PURPOSES SO THAT IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE AGENCY EITHER TO PERMIT THE EMPLOYEE. AS NO PROVISION IS MADE IN THE LEAVE REGULATIONS FOR UNLIQUIDATED ADVANCED SICK LEAVE AT END OF A LEAVE YEAR. WHO DURING A PERIOD OF ILLEGAL SEPARATION FROM THE SERVICE WAS PREVENTED FROM PERFORMING CERTAIN IRREGULARLY SCHEDULED OVERTIME. ON THE BASIS OF THE AVERAGE NUMBER OF OVERTIME HOURS WORKED DURING THE SAME PERIOD BY THREE POSTAL EMPLOYEES OCCUPYING SIMILAR POSITIONS IS APPROVED. AN EMPLOYEE WHO IS ENROLLED IN A HEALTH BENEFITS PLAN PRIOR TO SEPARATION FROM SERVICE AND WHO IS RESTORED TO DUTY ON GROUND THAT REMOVAL WAS ILLEGAL IS ENTITLED UNDER SECTION 10 (C) OF THE FEDERAL EMPLOYEE HEALTH BENEFITS ACT OF 1959.

B-147366, OCTOBER 27, 1961, 41 COMP. GEN. 273

LEAVES OF ABSENCE - ANNUAL - EXCESS LEAVE ADJUSTMENT - REMOVALS, SUSPENSIONS, ETC.--- COMPENSATION - REMOVALS, SUSPENSIONS, ETC.--- BACK PAY - OVERTIME INCLUSION--- COMPENSATION - REMOVALS, SUSPENSIONS, ETC.- - DEDUCTIONS FROM BACK PAY - HEALTH INSURANCE - PREMIUMS--- COMPENSATION - REMOVALS, SUSPENSIONS, ETC.--- DEDUCTIONS FROM BACK PAY EMPLOYMENT DUTY AN EMPLOYEE WHO REFUNDED AN AMOUNT REPRESENTING OVERDRAWN ANNUAL AND SICK LEAVE UPON A SEPARATION FROM THE SERVICE, WHICH WAS SUBSEQUENTLY DETERMINED TO HAVE BEEN UNWARRANTED, IS REGARDED AS BEING IN THE SAME CATEGORY AS AN EMPLOYEE IN A NONPAY STATUS FOR ANNUAL LEAVE EARNING PURPOSES SO THAT IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE AGENCY EITHER TO PERMIT THE EMPLOYEE, UPON RESTORATION TO DUTY, TO RETAIN THE AMOUNT PAID FOR THE OVERDRAWN ANNUAL LEAVE OR TO REFUND THE PAYMENT AND CARRY THE EXCESS AMOUNT FORWARDED AS A CHARGE AGAINST THE ANNUAL LEAVE EARNED IN THE FOLLOWING YEAR; HOWEVER, AS NO PROVISION IS MADE IN THE LEAVE REGULATIONS FOR UNLIQUIDATED ADVANCED SICK LEAVE AT END OF A LEAVE YEAR, THE ADMINISTRATIVE OFFICE SHOULD REFUND THE AMOUNT COLLECTED AND ADJUST THE SICK LEAVE ACCOUNT OF THE EMPLOYEE ACCORDINGLY. INCLUSION THE METHOD OF COMPUTING OVERTIME INCIDENT TO A BACK PAY AWARD DUE A POST OFFICE DEPARTMENT EMPLOYEE, WHO DURING A PERIOD OF ILLEGAL SEPARATION FROM THE SERVICE WAS PREVENTED FROM PERFORMING CERTAIN IRREGULARLY SCHEDULED OVERTIME, ON THE BASIS OF THE AVERAGE NUMBER OF OVERTIME HOURS WORKED DURING THE SAME PERIOD BY THREE POSTAL EMPLOYEES OCCUPYING SIMILAR POSITIONS IS APPROVED. AN EMPLOYEE WHO IS ENROLLED IN A HEALTH BENEFITS PLAN PRIOR TO SEPARATION FROM SERVICE AND WHO IS RESTORED TO DUTY ON GROUND THAT REMOVAL WAS ILLEGAL IS ENTITLED UNDER SECTION 10 (C) OF THE FEDERAL EMPLOYEE HEALTH BENEFITS ACT OF 1959, 5 U.S.C. 3009 (C), TO HAVE HIS COVERAGE RESTORED TO THE SAME EXTENT AS THOUGH THE REMOVAL OR SUSPENSION HAD NOT TAKEN PLACE, AND, THEREFORE, THE EMPLOYEE IS LIABLE FOR PREMIUMS DURING PERIOD OF SEPARATION AND SUCH AMOUNT MAY BE DEDUCTED FROM THE BACK PAY DUE THE EMPLOYEE. ALTHOUGH AN EMPLOYEE WHO APPEALS A SUSPENSION OR SEPARATION ACTION HAS A DUTY TO MITIGATE DAMAGES BY SEEKING OTHER EMPLOYMENT AFTER THE SUSPENSION OR SEPARATION ACTION BECOMES FINAL, DURING THE APPEAL, HEARING AND AWAITING FINAL DECISION THE EMPLOYEE WILL BE REGARDED AS HAVING HIS TIME TAKEN IN AN EFFORT TO SECURE FAVORABLE ACTION, AND HIS FAILURE TO SEEK OTHER EMPLOYMENT DURING SUCH TIME WILL NOT CONSTITUTE GROUNDS FOR DISALLOWANCE OF BACK PAY ON RESTORATION; THEREFORE, AN EMPLOYEE WHO IS ORDERED RESTORED TO DUTY FOLLOWING AN ILLEGAL SUSPENSION, BUT THE AGENCY APPEALS THE ORDER, IS NOT PRECLUDED FROM RECEIVING BACK PAY FOR FAILURE TO SEEK OTHER EMPLOYMENT DURING THE PERIOD OF THE APPEAL.

TO LEROY P. AFDEM, POST OFFICE DEPARTMENT, OCTOBER 27, 1961:

YOUR LETTER OF OCTOBER 6, 1961, WITH ENCLOSURES, YOUR REFERENCE AIR*IPA:LO, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED FOR $4,975.13, COVERING BACK PAY DUE MR. GEORGE ABRAHAM BECAUSE OF AN ILLEGAL SEPARATION FOR THE PERIOD OCTOBER 2, 1960, TO AUGUST 18, 1961, AS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT.

YOU SAY THAT THE GROSS AMOUNT DUE AS BACK PAY WAS COMPUTED AT PFS-4, STEP 4, $4,825 PER ANNUM SINCE MR. ABRAHAM RECEIVED HIS PREVIOUS STEP INCREASE TO PFS-4, STEP 3 ON OCTOBER 3, 1959, AND WAS DUE TO STEP INCREASE TO STEP 4 ON OCTOBER 1, 1960, THE EFFECTIVE DATE OF HIS REMOVAL. AT THE TIME OF HIS SEPARATION, MR. ABRAHAM WAS INDEBTED FOR ONE HOUR OF ANNUAL LEAVE AND 88 HOURS OF SICK LEAVE. HE REFUNDED TO THE GOVERNMENT AT THE TIME OF HIS SEPARATION $172.79 FOR THE ADVANCED LEAVE. IN COMPUTING THE BACK PAY DUE YOU SAY THAT SINCE OVERTIME IN THE POST OFFICE DEPARTMENT IS NOT REGULARLY SCHEDULED, THE 61 HOURS SHOWN ON THE VOUCHER HAVE BEEN DETERMINED BY USING THE AVERAGE NUMBER OF HOURS OVERTIME WORKED BY THREE OTHER EMPLOYEES WHO OCCUPIED SIMILAR POSITIONS DURING THE CHRISTMAS PERIOD OF 1960. ALSO, THAT SINCE MR. ABRAHAM WAS ENROLLED UNDER THE FEDERAL EMPLOYEES HEALTH BENEFITS ACT, ENROLLMENT CODE 321, $1.61 PER PAY PERIOD AT THE TIME OF SEPARATION, A DEDUCTION HAS BEEN MADE FOR HEALTH BENEFITS. THE INFORMATION FURNISHED SHOWS THAT MR. ABRAHAM HAD NO OUTSIDE EARNINGS TO BE DEDUCTED FROM HIS BACK PAY AND THAT HE RECEIVED NO UNEMPLOYMENT COMPENSATION. MR. ABRAHAM HAS FURNISHED A STATEMENT AS FOLLOWS:

ATTEMPTS WERE MADE TO SEEK EMPLOYMENT ONLY IF I DID NOT GET MY JOB BACK AND THEY WERE MADE MOSTLY VERBALLY.

I DID NOT ACCEPT ANY POSITION OR ANY JOBS DURING MY TIME OFF BECAUSE OF MY CASE PENDING.

IN COMPUTING THE AMOUNT DUE AS BACK PAY AS SHOWN ON THE VOUCHER, YOU SUBMIT THE FOLLOWING QUESTIONS.

1. MAY THE $172.79, PAID BY MR. ABRAHAM AT THE TIME OF SEPARATION, REPRESENTING OVERDRAWN ANNUAL AND SICK LEAVE BE REFUNDED TO HIM AND HIS LEAVE ACCOUNT ADJUSTED ACCORDINGLY?

2. IN COMPUTING THE BACK PAY SHOULD THE OVERTIME BE INCLUDED EVEN THOUGH IT WAS NOT REGULARLY SCHEDULED?

3. WERE DEDUCTIONS, FROM THE AMOUNT FOUND DUE, REQUIRED UNDER THE FEDERAL EMPLOYEES HEALTH BENEFITS ACT?

4. SINCE MR. ABRAHAM DID NOT MAKE AN EFFORT TO OBTAIN EMPLOYMENT DURING HIS PERIOD OF SEPARATION WOULD HE BE ENTITLED TO BACK PAY?

CONCERNING OVERDRAWN ANNUAL LEAVE, SECTION 30.301 OF THE FEDERAL PERSONNEL MANUAL, PAGE Z1-354.01 PROVIDES IN PART AS FOLLOWS:

SEC. 30.301 OVERDRAWN ANNUAL LEAVE. WHENEVER, AT THE END OF THE LEAVE YEAR, REDUCTIONS IN ANNUAL LEAVE ACCRUALS UNDER SECTION 30.204 RESULT IN A FINAL DEBIT IN THE ANNUAL LEAVE ACCOUNT, THE EXCESS MAY BE CARRIED FORWARD FOR CHARGE AGAINST LEAVE EARNED IN THE FOLLOWING LEAVE YEAR, OR, IN THE DISCRETION OF THE EMPLOYING AGENCY, THE EMPLOYEE MAY BE REQUIRED TO REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS. * * *

SECTION 30.204 OF THE FEDERAL PERSONNEL MANUAL, PAGE Z1-354, PERTAINS TO THE REDUCTION OF ANNUAL LEAVE OF AN EMPLOYEE IN A NONPAY STATUS. A PERSON THUS RESTORED AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION WOULD BE IN THE SAME CATEGORY AS A PERSON IN A NONPAY STATUS SO FAR AS EARNING LEAVE IS CONCERNED. SINCE MR. ABRAHAM WAS PREVENTED FROM EARNING ANNUAL LEAVE DURING THE BALANCE OF THE LEAVE YEAR 1960 AFTER HIS BEING SEPARATED EFFECTIVE OCTOBER 1, 1960, IT IS WITHIN ADMINISTRATIVE DISCRETION EITHER TO REQUIRE HIM TO REFUND THE AMOUNT PAID TO HIM FOR THE PERIOD OF SUCH EXCESS ANNUAL LEAVE OR TO CARRY THE EXCESS AMOUNT FORWARD FOR CHARGE AGAINST LEAVE EARNED IN THE FOLLOWING LEAVE YEAR. CONCERNING ADVANCED SICK LEAVE, SECTION 204 (C) OF THE FEDERAL PERSONNEL MANUAL, PAGE Z1-350, AUTHORIZES THE ADVANCEMENT OF NOT TO EXCEED 30 DAYS IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION. SINCE AN EMPLOYEE MAY BE AUTHORIZED ADVANCED SICK LEAVE AND SINCE THE MANUAL IS SILENT AS TO OVERDRAWN SICK LEAVE AT THE END OF THE LEAVE YEAR, WE WOULD NOT OBJECT TO YOUR REFUNDING THE AMOUNT COLLECTED FROM MR. ABRAHAM FOR EXCESS SICK LEAVE AT THE TIME OF HIS SEPARATION AND ADJUSTING HIS SICK LEAVE ACCOUNT ACCORDINGLY.

YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

WE CONCUR IN THE PROPOSED METHOD OF COMPUTING THE EMPLOYEE'S COMPENSATION DURING THE PERIOD OF HIS REMOVAL BY INCLUDING THE AVERAGE NUMBER OF HOURS OVERTIME WORKED BY THREE OTHER EMPLOYEES WHO OCCUPIED SIMILAR POSITIONS DURING THE CHRISTMAS PERIOD OF 1960.

YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING DEDUCTIONS OF PREMIUMS FOR HEALTH BENEFITS FROM BACK PAY DUE BECAUSE OF AN ILLEGAL SEPARATION, SECTION 10 (C) OF THE FEDERAL EMPLOYEES HEALTH BENEFITS ACT OF 1959, PUBLIC LAW 86-382, 73 STAT. 715, 5 U.S.C. 3009 (C), PROVIDES AS FOLLOWS:

(C) ANY EMPLOYEE ENROLLED IN A PLAN UNDER THIS ACT WHO IS REMOVED OR SUSPENDED WITHOUT PAY AND LATER REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL NOT BE DEPRIVED OF COVERAGE OR BENEFITS FOR THE INTERIM BUT SHALL HAVE HIS COVERAGE RESTORED TO THE SAME EXTENT AND EFFECT AS THOUGH SUCH REMOVAL OR SUSPENSION HAD NOT TAKEN PLACE, AND APPROPRIATE ADJUSTMENTS SHALL BE MADE IN PREMIUMS, SUBSCRIPTION CHARGES, CONTRIBUTIONS, AND CLAIMS.

UNDER THE ABOVE-QUOTED STATUTE, ANY EMPLOYEE WHO IS ENROLLED IN A HEALTH BENEFITS PLAN AND IS RESTORED TO DUTY ON THE GROUNDS THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED WOULD BE LIABLE FOR THE PREMIUMS FOR THE PERIOD OF SUCH SEPARATION.

YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOU HAVE DOUBT CONCERNING THE PAYMENT OF BACK PAY IN MR. ABRAHAM'S CASE IN VIEW OF THE COURT'S HOLDING IN EDWARD SCHWARTZ V. UNITED STATES, 149 CT.1CL. 145. THE COURT HELD IN ESSENCE THAT THE PLAINTIFF HAD REASONABLE GROUNDS FOR NOT MAKING AN EFFORT TO SECURE OTHER EMPLOYMENT DURING HIS PERIOD OF SUSPENSION (AS DISTINGUISHED FROM THE PERIOD OF REMOVAL) WHEN HE WAS PREPARING FOR THE HEARING BEFORE THE SECURITY HEARING BOARD (WHICH RECOMMENDED THE EMPLOYEE'S REMOVAL) AND WHILE AWAITING THE BOARD'S DECISION SINCE HIS TIME WAS UNDOUBTEDLY TAKEN UP IN THE EFFORT TO SECURE FAVORABLE ACTION ON THE APPEAL OF HIS SUSPENSION. HOWEVER, AS TO THE PERIOD AFTER THE SEPARATION OF THE EMPLOYEE BECAME FINAL THE COURT WENT ON TO HOLD THAT THE EMPLOYEE SHOULD HAVE ATTEMPTED TO MITIGATE THE DAMAGES AND HIS FAILURE TO DO SO CONSTITUTED GROUNDS FOR NOT ALLOWING BACK PAY DURING SUCH PERIOD. WE DO NOT FEEL THAT THAT PART OF THE DECISION IN THE SCHWARTZ CASE CONCERNING THE PERIOD AFTER SEPARATION WOULD BE APPLICABLE TO ALL THE FACTS IN THIS PARTICULAR CASE. THE EMPLOYEE AFTER HIS HEARING WAS ORDERED RESTORED TO DUTY BY THE CIVIL SERVICE REGIONAL OFFICE, BUT THE AGENCY APPEALED SUCH ORDER TO THE COMMISSION'S BOARD OF APPEALS IN WASHINGTON, WHEREAS IN THE SCHWARTZ CASE, THE EMPLOYEE, AFTER HIS HEARING BY THE SECURITY BOARD, WAS FINALLY SEPARATED FROM THE SERVICE. ALSO, WE FEEL THAT THE PERIOD BETWEEN THE SEPARATION, THE HEARING, AND AWAITING FINAL DECISION OF THE CIVIL SERVICE COMMISSION FALLS WITHIN THE RULE IN THE SCHWARTZ CASE REGARDING THE SUSPENSION PERIOD. THEREFORE, THE CLAIM FOR BACK PAY IS FOR ALLOWANCE.

THE FOURTH QUESTION IS ANSWERED IN THE AFFIRMATIVE.

ACTION ON THE VOUCHER, WHICH, TOGETHER WITH RELATED PAPERS, IS RETURNED, MAY BE TAKEN IN ACCORDANCE WITH THE FOREGOING ANSWERS.