B-154147, JUN. 19, 1964

B-154147: Jun 19, 1964

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DURING WHICH YOU WERE SUSPENDED FROM YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE TREASURY. THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF APRIL 22. WHICH AUTHORIZES THE PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS OF UNJUSTIFIED REMOVAL OR SUSPENSION IS LIMITED BY ITS TERMS TO PERSONS IN THE CLASSIFIED CIVIL SERVICE AND YOU WERE NOT IN SUCH SERVICE AT THE TIME OF YOUR SUSPENSION. YOU WERE SERVING A PROBATIONARY PERIOD AS A CRIMINAL INVESTIGATOR. ON THAT DATE YOU WERE REMOVED FROM YOUR POSITION BY ADMINISTRATIVE ACTION. YOU WERE RESTORED TO YOUR FORMER POSITION. HAS REFERENCE TO EMPLOYEES WHO HAVE A COMPETITIVE STATUS AND WHO ALSO ARE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE.

B-154147, JUN. 19, 1964

TO MR. FREDERICK D. WILLIAMS:

THIS REFERS TO YOUR LETTER OF APRIL 29, 1964, REQUESTING A REVIEW OF YOUR CLAIM FOR COMPENSATION FOR THE PERIOD MAY 11, 1962, THROUGH OCTOBER 11, 1962, DURING WHICH YOU WERE SUSPENDED FROM YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE.

THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF APRIL 22, 1964, FOR THE REASON THAT THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, WHICH AUTHORIZES THE PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS OF UNJUSTIFIED REMOVAL OR SUSPENSION IS LIMITED BY ITS TERMS TO PERSONS IN THE CLASSIFIED CIVIL SERVICE AND YOU WERE NOT IN SUCH SERVICE AT THE TIME OF YOUR SUSPENSION.

THERE APPEARS TO BE NO DISPUTE AS TO THE FACTS. ON AND PRIOR TO MAY 11, 1962, YOU WERE SERVING A PROBATIONARY PERIOD AS A CRIMINAL INVESTIGATOR. ON THAT DATE YOU WERE REMOVED FROM YOUR POSITION BY ADMINISTRATIVE ACTION. ON OCTOBER 11, 1962, FOLLOWING A COMPLAINT FILED WITH THE PRESIDENT'S COMMITTEE ON EQUAL EMPLOYMENT OPPORTUNITIES, YOU WERE RESTORED TO YOUR FORMER POSITION.

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, 1942, 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.'

IN OUR DECISION B-140969, B-141249, DATED FEBRUARY 1, 1962, 41 COMP. GEN. 499, WE HELD, ALSO QUOTING, IN PERTINENT PART, FROM THE SYLLABUS:

"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 IN 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 * * *.'

IN VIEW OF THE ABOVE, THE FACT REMAINS THAT SINCE YOU WERE NOT IN A CLASSIFIED CIVIL SERVICE STATUS AT THE TIME OF YOUR REMOVAL, YOU ARE NOT ENTITLED TO BACK PAY UNDER THE PROVISIONS OF THE CITED STATUTE. THIS IS SO REGARDLESS OF ANY RIGHT OF APPEAL TO THE CIVIL SERVICE COMMISSION.

CONSEQUENTLY, OUR SETTLEMENT OF APRIL 22, 1964, DISALLOWING YOUR CLAIM IS SUSTAINED.