B-149492, NOV. 1, 1962

B-149492: Nov 1, 1962

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HER APPOINTMENT WAS SUBJECT TO THE PROVISIONS OF SECTION 2.108 OF THE CIVIL SERVICE REGULATION WHICH PRESCRIBES A ONE-YEAR PERIOD AFTER APPOINTMENT DURING WHICH AN EMPLOYEE SHALL BE SUBJECT TO INVESTIGATION AND REMOVAL FOR UNSUITABILITY AT THE DIRECTION OF THE CIVIL SERVICE COMMISSION. SUCH REMOVALS ARE NOT SUBJECT TO THE PROCEDURAL RESTRICTIONS IMPOSED UPON THE REMOVAL OF REGULAR CIVIL SERVICE EMPLOYEES BY SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944. ALBERTSON'S APPEALS SHE WAS SUSPENDED. FOLLOWING FURTHER APPEALS HER RESTORATION TO DUTY WAS ORDERED AS INDICATED ABOVE AND SHE WAS COMPENSATED FOR THE PERIOD OF HER SUSPENSION. SINCE THE CONDITIONS UNDER WHICH AN APPOINTEE IS SUBJECT TO INVESTIGATION ARE WITHIN THE REGULATORY JURISDICTION OF THE CIVIL SERVICE COMMISSION WE REQUESTED THEIR REPORT UPON THE ACTION TAKEN IN MRS.

B-149492, NOV. 1, 1962

TO LIEUTENANT (JG) R. L. MOORE, SC, USN:

ON JULY 5, 1962, YOUR REFERENCE 23-1:DF, YOU REQUESTED OUR DECISION WHETHER YOU MAY DRAW A VOUCHER TO REPAY MRS. PAULA J. ALBERTSON THE $180 WITHHELD FROM THE COMPENSATION DUE HER AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, FOR PARTIAL COLLECTION OF THE BACK PAY ALLOWED HER UPON HER RESTORATION TO GOVERNMENT SERVICE ON APRIL 9, 1962, PURSUANT TO THE LETTER OF THE CHAIRMAN, BOARD OF APPEALS AND REVIEW, U.S. CIVIL SERVICE COMMISSION DATED MARCH 30, 1962.

MRS. ALBERTSON ENTERED ON DUTY AT THE NAVAL SUPPLY CENTER ON APRIL 14, 1960. HER APPOINTMENT WAS SUBJECT TO THE PROVISIONS OF SECTION 2.108 OF THE CIVIL SERVICE REGULATION WHICH PRESCRIBES A ONE-YEAR PERIOD AFTER APPOINTMENT DURING WHICH AN EMPLOYEE SHALL BE SUBJECT TO INVESTIGATION AND REMOVAL FOR UNSUITABILITY AT THE DIRECTION OF THE CIVIL SERVICE COMMISSION. SUCH REMOVALS ARE NOT SUBJECT TO THE PROCEDURAL RESTRICTIONS IMPOSED UPON THE REMOVAL OF REGULAR CIVIL SERVICE EMPLOYEES BY SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, APPROVED JUNE 27,1944, CH. 287, 58 STAT. 390, AS AMENDED, 5 U.S.C. 863, AND BY SECTION 6 OF THE ACT OF AUGUST 24, 1912, CH. 389, 37 STAT. 555, AS AMENDED BY THE ACT OF JUNE 10, 1948, CH. 447, 62 STAT. 354, 5 U.S.C. 652. ON APRIL 12, 1961, THE THIRD UNITED STATES CIVIL SERVICE REGION DIRECTED MRS. ALBERTSON'S SUSPENSION EFFECTIVE THE FIFTEENTH DAY FOLLOWING THE DATE OF ITS ORDER UNDER THE AUTHORITY OF SECTION 2.108. AFTER CERTAIN DELAYS CAUSED BY MRS. ALBERTSON'S APPEALS SHE WAS SUSPENDED. HOWEVER, FOLLOWING FURTHER APPEALS HER RESTORATION TO DUTY WAS ORDERED AS INDICATED ABOVE AND SHE WAS COMPENSATED FOR THE PERIOD OF HER SUSPENSION.

UPON LEARNING THAT THE DEPARTMENT OF THE NAVY HAD PAID MRS. ALBERTSON COMPENSATION FOR THE PERIOD OF HER SUSPENSION THE BOARD OF APPEALS AND REVIEW INFORMED THE DEPARTMENT THAT ITS ORDER HAD NOT AUTHORIZED THE PAYMENT OF SUCH COMPENSATION AND AS A CONSEQUENCE THEREOF THE DEPARTMENT BEGAN TO COLLECT BACK THE AMOUNT SO PAID.

MRS. ALBERTSON THEN BROUGHT SUIT IN A UNITED STATES DISTRICT COURT TO PREVENT THE DEDUCTION OF FURTHER AMOUNTS FROM HER PAY. YOU SUBMITTED THE CASE TO US PURSUANT TO THE REQUEST OF THE COURT THAT FURTHER ADMINISTRATIVE REVIEW BE OBTAINED BEFORE IT CONSIDERS THE MERITS OF THE CASE.

SINCE THE CONDITIONS UNDER WHICH AN APPOINTEE IS SUBJECT TO INVESTIGATION ARE WITHIN THE REGULATORY JURISDICTION OF THE CIVIL SERVICE COMMISSION WE REQUESTED THEIR REPORT UPON THE ACTION TAKEN IN MRS. ALBERTSON'S CASE. THE COMMISSION IN THEIR REPORT TO US OF OCTOBER 22, 1962, SAID:

"AFTER FULL CONSIDERATION OF MRS. ALBERTSON'S CASE, IT IS THE OPINION OF THE COMMISSION THAT IT WAS WITHOUT AUTHORITY TO INSTRUCT HER SUSPENSION OR REMOVAL EFFECTIVE AT A DATE AFTER THE EXPIRATION OF THE ONE YEAR SUBJECT- TO-INVESTIGATION PERIOD EVEN THOUGH THAT INSTRUCTION WAS ISSUED BEFORE THE EXPIRATION OF THAT PERIOD. THE COMMISSION IS DIRECTING THAT APPROPRIATE ACTION BE TAKEN TO PREVENT THE RECURRENCE OF A CASE SUCH AS MRS. ALBERTSON -S.

"IN THE FUTURE IN CASES SUCH AS MRS. ALBERTSON-S, AND INSTRUCTION TO SUSPEND OR REMOVE AN EMPLOYEE UNDER 5 CFR 2.108 WILL ESTABLISH AN EFFECTIVE DATE FOR THE ADVERSE ACTION THAT IS WITHIN THE ONE YEAR SUBJECT- TO-INVESTIGATION PERIOD. IT IS, OF COURSE, RECOGNIZED THAT IN SOME OF THESE CASES WHEN THE EMPLOYEE NOTES AN APPEAL, THE ULTIMATE EFFECTIVE DATE WILL BE SUBSEQUENT TO THE END OF THE ONE YEAR PERIOD. HOWEVER, IN SUCH CASES, AS THE POSTPONEMENT OF THE EFFECTIVE DATE FROM WITHIN THE ONE YEAR PERIOD TO OUTSIDE THE ONE YEAR PERIOD IS FOR THE BENEFIT OF THE EMPLOYEE EXHAUSTING HIS ADMINISTRATIVE APPEAL RIGHTS THE ACTION IS CONSIDERED PROPER AND DEFENSIBLE.

"IT FOLLOWS FROM THE FOREGOING THAT AS THE COMMISSION DID NOT PROPERLY INSTRUCT THE SUSPENSION OR REMOVAL OF MRS. ALBERTSON EFFECTIVE AT A DATE WITHIN THE ONE YEAR SUBJECT-TO-INVESTIGATION PERIOD, THAT PERIOD EXPIRED AND MRS. ALBERTSON BECAME ENTITLED TO THE BENEFITS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT, THE LLOYD-LAFOLLETTE ACT, AND PART 22 OF THE CIVIL SERVICE REGULATIONS. ACCORDINGLY, AS MRS. ALBERTSON WAS SUSPENDED WITHOUT REGARD TO THE PROCEDURES REQUIRED BY THOSE STATUTES AND THE REGULATIONS, HER SUSPENSION WAS UNJUSTIFIED AND UNWARRANTED * * *.'

THUS, THE RECORD NOW SHOWS THAT MRS. ALBERTSON WAS ENTITLED TO THE PROCEDURAL PROTECTION OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944 AND OF SECTION 6 OF THE ACT OF AUGUST 24, 1912. HER SUSPENSION WAS NOT CONSISTENT WITH THE PROCEDURES REQUIRED BY THOSE LAWS. THEREFORE, THE SUSPENSION WAS INVALID AND SHE BECAME ENTITLED TO BACK PAY UNDER 5 U.S.C. 652 UPON RESTORATION TO DUTY.

IT FOLLOWS THAT MRS. ALBERTSON IS ENTITLED TO REPAYMENT OF THE AMOUNT ALREADY COLLECTED FROM HER UNDER THE BELIEF THAT SHE HAD NOT BEEN ENTITLED TO BACK PAY UPON RESTORATION. YOU ARE AUTHORIZED TO REFUND SUCH AMOUNT AND TO DISCONTINUE ANY FURTHER WITHHOLDING OF COMPENSATION COVERING THE SUSPENSION PERIOD IN HER CASE.