B-183635, JUL 22, 1975

B-183635: Jul 22, 1975

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EMPLOYEE WHO WAS DEMOTED INCIDENT TO A REDUCTION IN FORCE MAY NOT HAVE ACTION OF CSC IN SUSTAINING DEMOTION REVIEWED BY THE GAO. THE CLAIM IS NOT ONE WHICH THE GAO COULD CONSIDER UNDER OUR GENERAL CLAIMS SETTLEMENT AUTHORITY. IT DOES NOT HAVE SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT SUBMISSION TO CONGRESS AS A MERITORIOUS CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928. FISHER WAS DEMOTED FROM A GRADE GS-12 TO A GRADE GS-9 IN NOVEMBER 1970. THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM AGAINST THE UNITED STATES IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION PREVIOUSLY MADE. THAT REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

B-183635, JUL 22, 1975

EMPLOYEE WHO WAS DEMOTED INCIDENT TO A REDUCTION IN FORCE MAY NOT HAVE ACTION OF CSC IN SUSTAINING DEMOTION REVIEWED BY THE GAO. THE CLAIM IS NOT ONE WHICH THE GAO COULD CONSIDER UNDER OUR GENERAL CLAIMS SETTLEMENT AUTHORITY, AND IT DOES NOT HAVE SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT SUBMISSION TO CONGRESS AS A MERITORIOUS CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928.

LAGRETTA B. FISHER - REQUEST FOR SUBMISSION OF CLAIM TO CONGRESS UNDER MERITORIOUS CLAIMS ACT:

THIS DECISION RESULTS FROM A REQUEST BY LAGRETTA B. FISHER THAT WE SUBMIT HER CLAIM FOR REINSTATEMENT TO A GS-12 POSITION WITH THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, CAMDEN, NEW JERSEY, WITH BACK PAY FROM NOVEMBER 1970, TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

MRS. FISHER WAS DEMOTED FROM A GRADE GS-12 TO A GRADE GS-9 IN NOVEMBER 1970, DURING A REDUCTION IN FORCE. SHE APPEALED HER REDUCTION IN GRADE TO THE CIVIL SERVICE COMMISSION (CSC) IN 1971, AND THE CSC BOARD OF REVIEW AND APPEALS RENDERED A FINAL DECISION ON THE MATTER THAT YEAR, UPHOLDING HER DEMOTION.

AS TO THE SETTLEMENT OF MRS. FISHER'S CLAIM UNDER 28 U.S.C. 2677 THIS WOULD BE FOR CONSIDERATION BY THE ATTORNEY GENERAL OR HIS DESIGNEE WHO MAY ARBITRATE, OR SETTLE ANY CLAIM COGNIZABLE UNDER 28 U.S.C. 1346(B) ONLY AFTER THE COMMENCEMENT OF COURT ACTION.

THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM AGAINST THE UNITED STATES IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION PREVIOUSLY MADE, BUT WHICH IN OUR JUDGEMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATION. THAT REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR CONSIDERATION OF THE CONGRESS GENERALLY INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

WE DO NOT CONSIDER MRS. FISHER'S CLAIM TO HAVE ELEMENTS OF EQUITY OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO RECUR. WHILE WE APPRECIATE THE UNFORTUNATE CIRCUMSTANCES IN THIS CASE, THERE HAVE BEEN NUMEROUS CASES WHERE EMPLOYEES HAVE BEEN DEMOTED.

WE HAVE NO JURISDICTION TO REVIEW DETERMINATIONS OF THE CSC IN MATTERS OF THE TYPE HERE IN QUESTION (B-169753, JUNE 29, 1970). THEREFORE, THIS CLAIM IS NOT ONE WHICH WE COULD CONSIDER UNDER OUR GENERAL CLAIMS SETTLEMENT AUTHORITY. ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN ON THE MATTER.