B-148153, FEB. 26, 1962

B-148153: Feb 26, 1962

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LOVE WAS SEPARATED FROM THE POSITION OF SUBSTITUTE CLERK FOR DISCIPLINARY REASONS ON FEBRUARY 3. WHILE SERVING A PROBATIONARY PERIOD BUT WAS RESTORED ON MAY 29. PARAGRAPH 3 OF YOUR LETTER READS AS FOLLOWS: "IT HAS LONG BEEN THE POSITION OF THE COURT OF CLAIMS THAT PROBATIONARY EMPLOYEES ARE NOT ENTITLED TO THE BENEFITS OF THE LLOYD LAFOLLETTE ACT OF 1912 BECAUSE THEY ARE NOT IN THE CLASSIFIED CIVIL SERVICE. THEY ARE DAUB V. DAUB WAS A TAPER (TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF REGISTER). NEITHER WAS. NEITHER WAS A VETERANS' PREFERENCE ELIGIBLE. ON THE THEORY THAT THE INJUSTICES WERE DONE AS VIOLATION OF DEPARTMENTAL (ARMY) REGULATIONS WHICH GAVE THE EMPLOYEE A CAUSE OF ACTION.'.

B-148153, FEB. 26, 1962

TO AUTHORIZED CERTIFYING OFFICER, BUREAU OF FINANCE, POST OFFICE DEPARTMENT:

ON FEBRUARY 8, 1962, YOUR REFERENCE AIR:LO, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER COVERING BACK PAY CLAIMED BY WILLIAM A. LOVE, JR., AN EMPLOYEE OF THE DALLAS, TEXAS, POST OFFICE, FOR A PERIOD OF ERRONEOUS REMOVAL FROM THE SERVICE.

IT APPEARS THAT MR. LOVE WAS SEPARATED FROM THE POSITION OF SUBSTITUTE CLERK FOR DISCIPLINARY REASONS ON FEBRUARY 3, 1961, WHILE SERVING A PROBATIONARY PERIOD BUT WAS RESTORED ON MAY 29, 1961, FOLLOWING A GRIEVANCE APPEAL.

PARAGRAPH 3 OF YOUR LETTER READS AS FOLLOWS:

"IT HAS LONG BEEN THE POSITION OF THE COURT OF CLAIMS THAT PROBATIONARY EMPLOYEES ARE NOT ENTITLED TO THE BENEFITS OF THE LLOYD LAFOLLETTE ACT OF 1912 BECAUSE THEY ARE NOT IN THE CLASSIFIED CIVIL SERVICE. HOWEVER, TWO RECENT DECISIONS OF THE COURT OF CLAIMS CAST DOUBT UPON THE CONTINUING APPLICATION OF THIS THEORY. THEY ARE DAUB V. UNITED STATES, 292 F.2D 895 (CT.CL. 1961), AND THOMAS V. UNITED STATES, 289 F.2D 948 (CT.CL. 1961). DAUB WAS A TAPER (TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF REGISTER), AND THOMAS A SCHEDULE A EMPLOYEE. NEITHER WAS, THEREFORE, IN THE CLASSIFIED CIVIL SERVICE, AND NEITHER WAS A VETERANS' PREFERENCE ELIGIBLE. NEVERTHELESS, THE COURT AWARDED BACK PAY IN EACH CASE, ON THE THEORY THAT THE INJUSTICES WERE DONE AS VIOLATION OF DEPARTMENTAL (ARMY) REGULATIONS WHICH GAVE THE EMPLOYEE A CAUSE OF ACTION.'

WE HAVE HELD THAT NEITHER THE LLOYD-LAFOLLETTE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, NOR THE VETERANS PREFERENCE ACT OF 1944 APPLIES TO PROBATIONARY EMPLOYEES SO AS TO ENTITLE THEM TO BACK PAY FOR PERIODS OF REMOVAL AND SINCE MR. LOVE HAD NOT COMPLETED HIS PROBATIONARY PERIOD HE IS NOT ENTITLED TO THE BENEFITS THEREUNDER. 35 COMP. GEN. 6; B-143652, AUGUST 26, 1960.

MOREOVER, AS YOU SAY IT HAS LONG BEEN THE POSITION OF THE COURT OF CLAIMS THAT PROBATIONARY EMPLOYEES ARE NOT ENTITLED TO THE BENEFITS OF THE LLOYD- LAFOLLETTE ACT. SEE NADELHAFT V. UNITED STATES, 132 CT.CL. 316, AND THE CASES CITED THEREIN. IN THE DAUB AND THOMAS CASES THE COURT FOUND AS A MATTER OF LAW THAT THE FACTS THERE PRESENT DID NOT BRING THOSE CASES WITHIN THE PURVIEW OF THE ACT. NEITHER WERE THEY COVERED BY THE OTHER TWO STATUTES. COMPENSATION FOR THE PERIODS OF SEPARATION WAS AWARDED ON THE BASIS THAT THE SEPARATIONS DID NOT COMPLY WITH THE PROCEDURAL REQUIREMENTS OF THE REGULATIONS OF THE DEPARTMENT. JUDGMENTS OF THE COURT OF CLAIMS ARE PAID UNDER 31 U.S.C. 724 (A) AND NOT FROM THE FUNDS APPROPRIATED FOR THE DEPARTMENTS AND OTHER AGENCIES. THEREFORE, IT MUST BE CONCLUDED THAT THERE IS NO STATUTORY AUTHORITY UNDER WHICH APPROPRIATED FUNDS OF THE POST OFFICE DEPARTMENT MAY BE OBLIGATED OR EXPENDED FOR CLAIMS SIMILAR TO THE ONE HERE IN QUESTION. B-140969, B-141249, FEBRUARY 1, 1962, 41 COMP. GEN.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.