B-159416, JUL. 6, 1966

B-159416, JUL. 6, 1966

TO AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE:

THIS REFERS TO YOUR LETTER OF MAY 23, 1966, FILE P-14, AND ENCLOSURES, REQUESTING OUR DECISION AS TO WHETHER THE CLAIM OF EVELYN R. WEIGMAN, AN EMPLOYEE OF THE NATIONAL PARK SERVICE, FOR BACK PAY MAY BE APPROVED WITHIN THE PROVISIONS OF PUB.L. 89-380, APPROVED MARCH 30, 1966.

IT APPEARS FROM YOUR LETTER AND OTHER PAPERS SUBMITTED THAT MRS. WEIGMAN MADE APPLICATION FOR OPTIONAL RETIREMENT AS OF DECEMBER 26, 1965, AND PURSUANT THERETO WAS SEPARATED FROM SERVICE EFFECTIVE THAT DAY AND WAS GIVEN A LUMP-SUM PAYMENT FOR HER ANNUAL LEAVE COVERING A SUFFICIENT NUMBER OF HOURS TO HAVE CARRIED HER THROUGH MARCH 22, 1966, HAD SHE GONE ON LEAVE RATHER THAN RETIRING.

UPON CONSIDERATION OF HER APPLICATION FOR RETIREMENT THE CIVIL SERVICE COMMISSION FOUND THAT MRS. WEIGMAN WAS NOT ELIGIBLE FOR RETIREMENT FOR THE REASON THAT CERTAIN SERVICES SHE HAD RENDERED DURING THE PERIODS FROM JULY 20, 1937, TO DECEMBER 5, 1938, AND FROM AUGUST 17, 1939, TO OCTOBER 25, 1939,"WERE PROJECT SERVICE WITH THE W.P.A. AND ARE NOT CREDITABLE FOR RETIREMENT PURPOSES," AND THEREFORE SHE DID NOT HAVE THE REQUIRED YEARS OF SERVICE. THE DECISIONS OF THE COMMISSION IN THAT REGARD ARE NOT SUBJECT TO REVIEW EITHER BY THE EMPLOYING AGENCY OR BY OUR OFFICE. FURTHERMORE, IT IS SHOWN THAT AS EARLY AS OCTOBER 1, 1956, MRS. WEIGMAN WAS ADVISED BY THE COMMISSION THAT THE PROJECT SERVICE IN QUESTION WAS NOT CREDITABLE FOR RETIREMENT PURPOSES.

MRS. WEIGMAN RETURNED TO DUTY ON MARCH 1, 1966, REFUNDED THAT PORTION OF HER LUMP-SUM ANNUAL LEAVE PAYMENT FOR THE PERIOD MARCH 1 THROUGH MARCH 22, 1966, AND HAS BEEN RECREDITED WITH 128 HOURS OF ANNUAL LEAVE COVERED BY SUCH REFUND. HOWEVER, SHE APPARENTLY BELIEVES THAT HER SEPARATION FROM SERVICE FROM DECEMBER 27, 1965, THROUGH FEBRUARY 28, 1966, CONSTITUTES "AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION" WITHIN THE MEANING OF PUB.L. 89-380.

SECTION 3 OF PUB.L. 89-380 PROVIDES:

"EACH CIVILIAN OFFICER OR EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND, ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION TAKEN PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT, WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF SUCH OFFICER OR EMPLOYEE-

IN HIS REPORT ON H.R. 1647 (CONTAINED IN SENATE REPORT NO. 1062, DATED MARCH 10, 1966) MR. JOHN W. MACY, JR., CHAIRMAN OF THE UNITED STATES CIVIL SERVICE COMMISSION, MADE THE FOLLOWING REMARKS IN CLARIFICATION OF THE STATUTORY LANGUAGE QUOTED ABOVE:

"* * * IT LIMITS COVERAGE TO UNJUSTIFIED OR UNWARRANTED ACTIONS TAKEN ON OR AFTER THE DATE OF ENACTMENT, EXCEPT FOR (1) TIMELY EMPLOYEE APPEALS NOT YET DECIDED AT THE TIME OF ENACTMENT, AND (2) PRIOR ACTIONS REVIEWED AT AGENCY DISCRETION AND CORRECTED ON WHICH THE DECISION FAVORABLE TO THE EMPLOYEE IS MADE ON OR AFTER THE DATE OF ENACTMENT, WHETHER OR NOT THE REVIEW WAS BEGUN BEFORE ENACTMENT. * * *"

THUS, ASIDE FROM ANY QUESTION AS TO WHETHER THE PERSONNEL ACTION TAKEN IN MRS. WEIGMAN'S CASE WAS UNJUSTIFIED OR UNWARRANTED WITHIN THE MEANING OF THE ACT IT IS CLEAR THAT PUB.L. 89-380 IS NOT APPLICABLE THERETO SINCE SHE WAS RESTORED TO DUTY PRIOR TO THE DATE OF ENACTMENT OF THAT LAW. SEE DECISION OF MAY 23, 1966, B-159133, 45 COMP. GEN. - .

THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652, LIKEWISE ARE INAPPLICABLE IN THIS CASE, IT HAVING BEEN HELD THAT SUCH PROVISIONS HAVE NO APPLICATION TO VOLUNTARY OR INVOLUNTARY SEPARATION ON ACCOUNT OF RETIREMENT. SEE ELLMORE V. BRUCKER, 236 F.2D 734 AND MURPHY V. WILSON, 236 F.2D 737. THEREFORE, THE CLAIM OF MRS. WEIGMAN FOR BACK PAY COVERING THE PERIOD OF SEPARATION MAY NOT BE ALLOWED. IT IS ASSUMED THAT THE RECORDS WILL BE ADJUSTED TO SHOW MRS. WEIGMAN IN AN ANNUAL LEAVE STATUS DURING THE PERIOD INVOLVED AND THAT PROPER ADJUSTMENTS WILL BE MADE CONCERNING DEDUCTIONS FOR RETIREMENT, INSURANCE, ETC. SEE 11 COMP. GEN. 202.

THE DOCUMENTS ACCOMPANYING YOUR SUBMISSION ARE RETURNED HEREWITH. THE COPIES ARE BEING RETAINED IN OUR FILES.