B-50602, JUL. 6, 1965, 45 COMP. GEN. 16

B-50602: Jul 6, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ETC. - DEDUCTIONS FROM BACK PAY - HIGHER SALARY OF GRADE TO WHICH DEMOTED AN EMPLOYEE WHO PURSUANT TO THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION IS RETROACTIVELY RESTORED TO HIS FORMER GS-14 POSITION. TO THE DATE HE WAS REDUCED TO A GS-13 POSITION AT THE HIGHER SALARY RATE OF $15. IS ENTITLED TO THE HIGHER GA-13 SALARY FOR THE PERIOD OF REDUCTION IN GRADE. THE AMOUNT OF THE DIFFERENCE BETWEEN THE TWO SALARY RATES FOR THE PERIOD WHICH WAS COLLECTED FROM THE EMPLOYEE MAY BE REFUNDED TO HIM. IS NOT APPLICABLE TO DEMOTIONS. AN EMPLOYEE OF YOUR SAN FRANCISCO REGIONAL OFFICE IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $56.80. THE EMPLOYEE WAS NOTIFIED BY MEMORANDUM OF SEPTEMBER 25.

B-50602, JUL. 6, 1965, 45 COMP. GEN. 16

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - DEDUCTIONS FROM BACK PAY - HIGHER SALARY OF GRADE TO WHICH DEMOTED AN EMPLOYEE WHO PURSUANT TO THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION IS RETROACTIVELY RESTORED TO HIS FORMER GS-14 POSITION, $15,640 PER ANNUM, TO THE DATE HE WAS REDUCED TO A GS-13 POSITION AT THE HIGHER SALARY RATE OF $15,855, IS ENTITLED TO THE HIGHER GA-13 SALARY FOR THE PERIOD OF REDUCTION IN GRADE, AND THE AMOUNT OF THE DIFFERENCE BETWEEN THE TWO SALARY RATES FOR THE PERIOD WHICH WAS COLLECTED FROM THE EMPLOYEE MAY BE REFUNDED TO HIM, NOTWITHSTANDING 5 U.S.C. 652, WHICH PROVIDES FOR THE REDUCTION OF INTERIM NET EARNINGS FROM BACK PAY AND THE RETENTION OF EARNINGS IN EXCESS OF THE RETROACTIVE COMPENSATION DUE AN EMPLOYEE, IS NOT APPLICABLE TO DEMOTIONS, THE COMMISSION HAVING PREDICATED ITS RESTORATION RECOMMENDATION ON SECTIONS 12 AND 19 OF THE VETERANS PREFERENCE ACT.

TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, JULY 6, 1965:

ON JUNE 15, 1965, YOU REQUESTED OUR DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH, AN EMPLOYEE OF YOUR SAN FRANCISCO REGIONAL OFFICE IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $56.80.

AS RELATED, THE EMPLOYEE WAS NOTIFIED BY MEMORANDUM OF SEPTEMBER 25, 1964, THAT HIS POSITION--- REALTY OFFICER, GS-1170-14, $15,640 PER ANNUM-- - WAS BEING ABOLISHED. IN LIEU OF SEPARATION THE EMPLOYEE WAS OFFERED A GRADE GS-13 POSITION (REALTY SPECIALIST, GS-1170-13) AT A SALARY RATE OF $15,855 PER ANNUM. ALTHOUGH ACCEPTING THE OFFER OF THE GRADE GS-13 POSITION, THE EMPLOYEE APPEALED HIS REDUCTION TO THE CIVIL SERVICES COMMISSION AND THE COMMISSION DETERMINED THAT THE ADMINISTRATIVE ACTION WAS ERRONEOUS AND RECOMMENDED THAT THE EMPLOYEE BE RESTORED TO HIS FORMER POSITION IN GRADE GS-14 RETROACTIVELY TO THE DATE OF HIS REDUCTION IN GRADE (NOVEMBER 6, 1964). THE ACTION RECOMMENDED BY THE COMMISSION WAS COMPLIED WITH ON FEBRUARY 24, 1965.

THE QUESTION HERE INVOLVED IS WHETHER THE EMPLOYEE IS ENTITLED TO THE HIGHER GS-13 SALARY (STEP 10, $15,855 PER ANNUM) HE RECEIVED BETWEEN NOVEMBER 6, 1964, THE DATE OF HIS DEMOTION, AND FEBRUARY 24, 1965, THE DATE HE WAS RETROACTIVELY RESTORED TO HIS FORMER GRADE AND SALARY (GS-14, STEP 4, $15,640 PER ANNUM). SUCH HIGHER SALARY, IN THE AGGREGATE AMOUNT OF $56.80, WAS DEDUCTED FROM THE MARCH 12, 1965, PAY CHECK OF THE EMPLOYEE.

IN SUPPORT OF HIS CLAIM FOR REFUND OF THE $56.80 THE EMPLOYEE CONTENDS HE HAD A DE FACTO STATUS IN THE GRADE GS-13 POSITION AND THAT THEREFORE HE WAS ENTITLED TO RETAIN THE $56.80 WHICH WAS COLLECTED FROM HIM.

WE NOTE THAT THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, AUTHORIZING BACK PAY IN REMOVAL AND SUSPENSION CASES, PROVIDES FOR THE REDUCTION OF THE BACK PAY DUE AN EMPLOYEE UNDER ITS PROVISIONS ONLY BY THE AMOUNT OF THE INTERIM NET EARNINGS, THERE BEING NO PROVISION REQUIRING OR AUTHORIZING THE COLLECTION BY THE GOVERNMENT OF ANY AMOUNT EARNED IN EXCESS OF THE RETROACTIVE COMPENSATION OTHERWISE DUE. THUS, UNDER THAT STATUTE INTERIM NET EARNINGS IN EXCESS OF THE RETROACTIVE COMPENSATION DUE AN EMPLOYEE MAY BE RETAINED BY THE EMPLOYEE.

WHILE 5 U.S.C. 652 IS NOT APPLICABLE TO DEMOTIONS SUCH AS HERE INVOLVED-- - IT BEING ASSUMED THAT THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION WAS PREDICATED ON SECTIONS 12 AND 19 OF THE VETERANS PREFERENCE ACT, SEE 39 COMP. GEN. 639--- WE ARE NOT AWARE OF ANY REASON FOR A DIFFERENT RULE IN THIS TYPE OF CASE. ACCORDINGLY, THE EMPLOYEE IS ENTITLED TO RETAIN THE HIGHER SALARY EARNED IN THE POSITION TO WHICH DEMOTED, AND THE $56.80 COLLECTED FROM HIM MAY BE REFUNDED.