B-54716, JANUARY 7, 1946, 25 COMP. GEN. 509

B-54716: Jan 7, 1946

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COMPENSATION DURING SEPARATION THE FACT THAT THE CIVIL SERVICE COMMISSION DETERMINED THAT THE SEPARATION OF AN EMPLOYEE BECAUSE OF REDUCTION IN FORCE BY A QUALIFIED OFFICER OF THE PARTICULAR ADMINISTRATIVE AGENCY WAS NOT IN ACCORDANCE WITH THE EMPLOYEE'S RIGHTS AS A VETERAN UNDER THE VETERANS' PREFERENCE ACT OF 1944 HAS NO EFFECT TO VOID THE SEPARATION. AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE BECAUSE OF REDUCTION IN FORCE BY A QUALIFIED OFFICIAL CONTRARY TO THE EMPLOYEE'S RIGHTS AS A VETERAN UNDER THE VETERANS' PREFERENCE ACT OF 1944 IS NOT ENTITLED TO BE PAID SALARY. AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE BECAUSE OF REDUCTION IN FORCE BY A QUALIFIED OFFICIAL CONTRARY TO THE EMPLOYEE'S RIGHTS AS A VETERAN UNDER THE VETERANS' PREFERENCE ACT OF 1944 IS NOT ENTITLED.

B-54716, JANUARY 7, 1946, 25 COMP. GEN. 509

UNAUTHORIZED SEPARATION OF VETERANS - REAPPOINTMENT AND OATH OF OFFICE REQUIREMENTS; COMPENSATION DURING SEPARATION THE FACT THAT THE CIVIL SERVICE COMMISSION DETERMINED THAT THE SEPARATION OF AN EMPLOYEE BECAUSE OF REDUCTION IN FORCE BY A QUALIFIED OFFICER OF THE PARTICULAR ADMINISTRATIVE AGENCY WAS NOT IN ACCORDANCE WITH THE EMPLOYEE'S RIGHTS AS A VETERAN UNDER THE VETERANS' PREFERENCE ACT OF 1944 HAS NO EFFECT TO VOID THE SEPARATION, AND, THEREFORE, THE EMPLOYEE MAY BE RESTORED TO HIS FORMER POSITION ONLY BY A FORMAL APPOINTMENT AND COMPLIANCE WITH ALL STATUTORY REQUIREMENTS INCIDENT TO SUCH APPOINTMENT. AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE BECAUSE OF REDUCTION IN FORCE BY A QUALIFIED OFFICIAL CONTRARY TO THE EMPLOYEE'S RIGHTS AS A VETERAN UNDER THE VETERANS' PREFERENCE ACT OF 1944 IS NOT ENTITLED TO BE PAID SALARY, UPON RESTORATION, WITHOUT TAKING THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES. AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE BECAUSE OF REDUCTION IN FORCE BY A QUALIFIED OFFICIAL CONTRARY TO THE EMPLOYEE'S RIGHTS AS A VETERAN UNDER THE VETERANS' PREFERENCE ACT OF 1944 IS NOT ENTITLED, UPON RESTORATION TO DUTY, TO COMPENSATION FOR THE PERIOD BETWEEN THE DATE OF SEPARATION AND THE DATE OF RESTORATION DURING WHICH HE RENDERED NO SERVICE TO THE GOVERNMENT.

COMPTROLLER GENERAL WARREN TO THE CIVILIAN PRODUCTION ADMINISTRATOR, JANUARY 7, 1946:

I HAVE YOUR LETTER OF DECEMBER 21, 1945, RECEIVED HERE DECEMBER 26, AS FOLLOWS:

THE FOLLOWING STATEMENT OF FACTS IS PRESENTED FOR YOUR CONSIDERATION, AND YOUR DECISION IS RESPECTFULLY REQUESTED ON THE QUESTIONS HEREIN RAISED WITH RESPECT THERETO:

1. AS OF THE CLOSE OF BUSINESS SEPTEMBER 30, 1945, MR. HARVEY A. EDGE, AN EMPLOYEE OF THE WAR PRODUCTION BOARD, WAS SEPARATED BY THAT AGENCY BECAUSE OF REDUCTION IN FORCE. THE ACTION WAS TAKEN UNDER THE PROVISIONS OF DEPARTMENTAL CIRCULAR NO. 510 OF THE CIVIL SERVICE COMMISSION, WAS APPROVED BY THE DIRECTOR OF PERSONNEL TO WHOM THE APPOINTING AND REMOVAL AUTHORITY HAD BEEN DULY DELEGATED FOR THE AGENCY, AND THE APPROPRIATE ADVICE OF PERSONNEL ACTION WAS PREPARED ON OCTOBER 22, 1945. FOR THE PURPOSE OF THE QUESTIONS RAISED HEREIN, SECTION 9 OF DEPARTMENTAL CIRCULAR NO. 510 PROVIDES THAT ACTIONS TAKEN THEREUNDER "MAY BE MADE EFFECTIVE WITHOUT THE PRIOR APPROVAL OF THE CIVIL SERVICE COMMISSION.'

2. SUBSEQUENT TO RECEIPT ON AUGUST 29, 1945, OF HIS WRITTEN NOTICE OF SEPARATION BY REDUCTION IN FORCE, MR. EDGE APPEALED THE ACTION TO THE CIVIL SERVICE COMMISSION. AFTER A SERIES OF CORRESPONDENCE AND A HEARING ON THE PART OF THE CIVILIAN PRODUCTION ADMINISTRATION (WHICH SUCCEEDED THE WAR PRODUCTION BOARD ON NOVEMBER 3, 1945) BEFORE THE CIVIL SERVICE COMMISSION, THE CHAIRMAN OF THE COMMISSION ADDRESSED A LETTER TO THE ADMINISTRATOR OF THE CIVILIAN PRODUCTION ADMINISTRATION UNDER DATE OF NOVEMBER 28, 1945. THIS LETTER QUOTED FROM A PREVIOUS LETTER OF THE COMMISSION TO THE CHAIRMAN OF THE WAR PRODUCTION BOARD ADVISING THAT, UNDER THE PROVISIONS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, MR. EDGE WAS ENTITLED TO CONSIDERATION FOR RETENTION IN A POSITION THEN OCCUPIED BY A NON-VETERAN EMPLOYEE AND THAT THE COMMISSION FOUND MR. EDGE QUALIFIED TO FILL THIS POSITION. THE COMMISSION'S LETTER OF NOVEMBER 28, CONCLUDED WITH THE FINDING THAT " MR. EDGE, A VETERAN, IS ENTITLED TO RESTORATION TO DUTY, AND THE CIVILIAN PRODUCTION ADMINISTRATION, AS THE SUCCESSOR AGENCY TO THE PARTICULAR FUNCTION OF THE WAR PRODUCTION BOARD IN WHICH THE POSITION IN QUESTION EXISTED, IS THEREFORE OBLIGATED TO EFFECT THE RESTORATION WITHOUT DELAY.' IN A LETTER DATED NOVEMBER 1, 1945 (PRIOR TO THE HEARING ACCORDED THE CIVILIAN PRODUCTION ADMINISTRATION BEFORE THE CIVIL SERVICE COMMISSION), THE CHAIRMAN OF THE COMMISSION HAD REQUESTED OF THE CHAIRMAN OF THE WAR PRODUCTION BOARD ADVICE AS TO THE INTENTIONS OF THE BOARD "IN THE MATTER OF RESTORING MR. EDGE TO DUTY IN THE POSITION FROM WHICH HE WAS IMPROPERLY SEPARATED.'

3. ON NOVEMBER 30, 1945, PURSUANT TO THE COMMISSION'S LETTER OF NOVEMBER 28, ABOVE REFERRED TO, MR. EDGE PRESENTED HIMSELF AT THE OFFICE OF THE DIRECTOR OF PERSONNEL OF THE CIVILIAN PRODUCTION ADMINISTRATION FOR RESTORATION TO DUTY. HE WAS ADVISED THAT THE AGENCY WAS READY TO RESTORE HIM TO DUTY BUT THAT, BEFORE SUCH ACTION COULD BE TAKEN, IT WAS NECESSARY THAT HE TAKE THE OATH OF OFFICE. THIS ACTION WAS CONSIDERED TO BE NECESSARY, UNDER THE DECISIONS OF THE COMPTROLLER GENERAL, INASMUCH AS THE DULY CONSTITUTED APPOINTING AUTHORITY OF THE WAR PRODUCTION BOARD HAD ACTED TO SEPARATE HIM FROM THE ROLLS OF THAT AGENCY AS OF THE CLOSE OF BUSINESS ON SEPTEMBER 30, 1945. MR. EDGE, HOWEVER, REFUSED TO TAKE THE OATH OF OFFICE AND HAS CONTINUED TO REFUSE TO TAKE IT SINCE THAT DATE. HIS CONTENTION IS THAT THE DECISION OF THE CIVIL SERVICE COMMISSION CAUSED HIS SEPARATION FROM THE WAR PRODUCTION BOARD TO BE ILLEGAL AND THAT HE CONTINUED TO BE AN EMPLOYEE OF THAT AGENCY AND OF THE CIVILIAN PRODUCTION ADMINISTRATION SUBSEQUENT TO SEPTEMBER 30, 1945.

ON THE BASIS OF THE FACTS ABOVE STATED, THE FOLLOWING QUESTIONS ARE PRESENTED:

1. MAY THE CIVILIAN PRODUCTION ADMINISTRATION RESTORE MR. EDGE TO ACTIVE DUTY AND PAY HIS SALARY FOR THE PERFORMANCE OF SUCH DUTY WITHOUT REQUIRING THAT HE TAKE AN OATH OF OFFICE?

2. IF YOUR ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, IS MR. EDGE ENTITLED TO PAYMENT OF SALARY, WITHOUT CHARGE TO ANNUAL OR SICK LEAVE CREDITS, FOR ANY DAY SUBSEQUENT TO SEPTEMBER 30, 1945, AND BEFORE THE DAY ON WHICH HE ACTUALLY BEGINS TO PERFORM ACTIVE DUTY FOR THE CIVILIAN PRODUCTION ADMINISTRATION UPON HIS RESTORATION TO DUTY?

SECTIONS 12, 13, 14, AND 15 OF THE ACT OF JUNE 27, 1944, 58 STAT. 390 AND 391, PROVIDE---

SEC. 12. IN ANY REDUCTION IN PERSONNEL IN ANY CIVILIAN SERVICE OF ANY FEDERAL AGENCY, COMPETING EMPLOYEES SHALL BE RELEASED IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS WHICH SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS: PROVIDED, THAT THE LENGTH OF TIME SPENT IN ACTIVE SERVICE IN THE ARMED FORCES OF THE UNITED STATES OF EACH SUCH EMPLOYEE SHALL BE CREDITED IN COMPUTING LENGTH OF TOTAL SERVICE: PROVIDED FURTHER, THAT PREFERENCE EMPLOYEES WHOSE EFFICIENCY RATINGS ARE "GOOD" OR BETTER SHALL BE RETAINED IN PREFERENCE TO ALL OTHER COMPETING EMPLOYEES AND THAT PREFERENCE EMPLOYEES WHOSE EFFICIENCY RATINGS ARE BELOW "GOOD" SHALL BE RETAINED IN PREFERENCE TO COMPETING NONPREFERENCE EMPLOYEES WHO HAVE EQUAL OR LOWER EFFICIENCY RATINGS: AND PROVIDED FURTHER, THAT WHEN ANY OR ALL OF THE FUNCTIONS OF ANY AGENCY ARE TRANSFERRED TO, OR WHEN ANY AGENCY IS REPLACED BY, SOME OTHER AGENCY, OR AGENCIES, ALL PREFERENCE EMPLOYEES IN THE FUNCTION OR FUNCTIONS TRANSFERRED OR IN THE AGENCY WHICH IS REPLACED BY SOME OTHER AGENCY SHALL FIRST BE TRANSFERRED TO THE REPLACING AGENCY, OR AGENCIES, FOR EMPLOYMENT IN POSITIONS FOR WHICH THEY ARE QUALIFIED, BEFORE SUCH AGENCY, OR AGENCIES, SHALL APPOINT ADDITIONAL EMPLOYEES FROM ANY OTHER SOURCE FOR SUCH POSITIONS.

SEC. 13. ANY PREFERENCE ELIGIBLE WHO HAS RESIGNED OR WHO HAS BEEN DISMISSED OR FURLOUGHED MAY, AT THE REQUEST OF ANY APPOINTING OFFICER, BE CERTIFIED FOR, AND APPOINTED TO, ANY POSITION FOR WHICH HE MAY BE ELIGIBLE IN THE CIVIL SERVICE, FEDERAL, OR DISTRICT OF COLUMBIA OR IN ANY ESTABLISHMENT, AGENCY, BUREAU, ADMINISTRATION, PROJECT OR DEPARTMENT, TEMPORARY OR PERMANENT.

SEC. 14. NO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE, WHO HAS COMPLETED A PROBATIONARY OR TRIAL PERIOD EMPLOYED IN THE CIVIL SERVICE, OR IN ANY ESTABLISHMENT, AGENCY, BUREAU, ADMINISTRATION, PROJECT, OR DEPARTMENT, HEREINBEFORE REFERRED TO SHALL BE DISCHARGED, SUSPENDED FOR MORE THAN THIRTY DAYS, FURLOUGHED WITHOUT PAY, REDUCED IN RANK OR COMPENSATION, OR DEBARRED FOR FUTURE APPOINTMENT EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE PERSON WHOSE DISCHARGE, SUSPENSION FOR MORE THAN THIRTY DAYS, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR COMPENSATION IS SOUGHT SHALL HAVE AT LEAST THIRTY DAYS' ADVANCE WRITTEN NOTICE (EXCEPT WHERE THERE IS A REASONABLE CAUSE TO BELIEVE THE EMPLOYEE TO BE GUILTY OF A CRIME FOR WHICH A SENTENCE OF IMPRISONMENT CAN BE IMPOSED), STATING ANY AND ALL REASONS, SPECIFICALLY AND IN DETAIL, FOR ANY SUCH PROPOSED ACTION; SUCH PREFERENCE ELIGIBLE SHALL BE ALLOWED A REASONABLE TIME FOR ANSWERING THE SAME PERSONALLY AND IN WRITING, AND FOR FURNISHING AFFIDAVITS IN SUPPORT OF SUCH ANSWER, AND SHALL HAVE THE RIGHT TO APPEAL TO THE CIVIL SERVICE COMMISSION FROM AN ADVERSE DECISION: PROVIDED, THAT SUCH PREFERENCE ELIGIBLE SHALL HAVE THE RIGHT TO MAKE A PERSONAL APPEARANCE, OR AN APPEARANCE THROUGH A DESIGNATED REPRESENTATIVE, IN ACCORDANCE WITH SUCH REASONABLE RULES AND REGULATIONS AS MAY BE ISSUED BY THE CIVIL SERVICE COMMISSION; AFTER INVESTIGATION AND CONSIDERATION OF THE EVIDENCE SUBMITTED, THE CIVIL SERVICE COMMISSION SHALL SUBMIT ITS FINDINGS AND RECOMMENDATIONS TO THE PROPER ADMINISTRATIVE OFFICER AND SHALL SEND COPIES OF SAME TO THE APPELLANT OR TO HIS DESIGNATED REPRESENTATIVE: PROVIDED FURTHER, THAT THE CIVIL SERVICE COMMISSION MAY DECLARE ANY SUCH PREFERENCE ELIGIBLE WHO MAY HAVE BEEN DISMISSED OR FURLOUGHED WITHOUT PAY TO BE ELIGIBLE FOR THE PROVISIONS OF SECTION 15 HEREOF.

SEC. 15. ANY PREFERENCE ELIGIBLE, WHO HAS BEEN FURLOUGHED, OR SEPARATED WITHOUT DELINQUENCY OR MISCONDUCT, UPON REQUEST, SHALL HAVE HIS NAME PLACED ON ALL APPROPRIATE CIVIL-SERVICE REGISTERS AND/OR ON ALL EMPLOYMENT LISTS, FOR EVERY POSITION FOR WHICH HIS QUALIFICATIONS HAVE BEEN ESTABLISHED, AS MAINTAINED BY THE CIVIL SERVICE COMMISSION, OR AS SHALL BE MAINTAINED BY ANY AGENCY OR PROJECT OF THE FEDERAL GOVERNMENT, OR OF THE DISTRICT OF COLUMBIA, IN THE ORDER AS PROVIDED IN SECTION 7 HEREOF, AND SHALL THEN BE ELIGIBLE FOR RECERTIFICATION AND REAPPOINTMENT IN THE ORDER AND ACCORDING TO THE PROCEDURE AS PROVIDED FOR IN SECTIONS 7 AND 8 HEREOF. NO APPOINTMENT SHALL BE MADE FROM AN EXAMINATION REGISTER OF ELIGIBLES, EXCEPT OF TEN-POINT PREFERENCE ELIGIBLES, WHEN THERE ARE THREE OR MORE NAMES OF PREFERENCE ELIGIBLES ON ANY APPROPRIATE REEMPLOYMENT LIST FOR THE POSITION TO BE FILLED.

IT WILL BE NOTED THAT WHILE THE FOREGOING STATUTE DEFINES THE PREFERENCE RIGHTS OF VETERANS, IT PRESCRIBES NO REMEDIES WHERE SUCH PREFERENCE RIGHTS ARE NOT OBSERVED OTHER THAN AS INDICATED IN SECTIONS 13 AND 15 OF THE STATUTE. IN 3 COMP. GEN. 333, IT WAS HELD BY THIS OFFICE QUOTING FROM THE SYLLABUS---

THE DISCHARGE OF AN EX-SOLDIER FROM A PER DIEM POSITION UNDER A CIVIL- SERVICE APPOINTMENT, CONTRARY TO THE PREFERENCE RIGHTS ACCORDED EX- SOLDIERS BY THE ACTS OF AUGUST 15, 1876, 19 STAT., 169, AND AUGUST 23, 1912, 37 STAT., 413, DOES NOT GIVE HIM ANY RIGHT TO PER DIEM COMPENSATION FOR ANY PERIOD AFTER DISCHARGE WHEN HE RENDERED NO SERVICE TO THE GOVERNMENT.

ALSO, SEE 7 COMP. GEN. 563. IN A SUBSEQUENT DECISION, 10 COMP. GEN. 478, IT WAS STATED, AT PAGE 479:

ASIDE FROM THE QUESTION WHETHER FULL COMPENSATION WAS MADE BY THE ADMINISTRATIVE OFFICE WITH THE TERMS OF THE ACT OF AUGUST 24, 1912, IT MUST BE CONCLUDED THAT THE DISMISSAL OF CLAIMANT BY ORDER OF THE SECRETARY OF THE TREASURY, THE APPOINTING POWER, COMPLETELY SEPARATED THE CLAIMANT FROM THE SERVICE. EVEN THOUGH THE DISMISSAL MAY NOT HAVE BEEN JUSTIFIED ON THE EVIDENCE DEDUCED, AND A FULL COMPLIANCE MAY NOT HAVE BEEN MADE WITH THE TERMS OF THE ACT OF AUGUST 24, 1912, CLAIM FOR COMPENSATION MAY NOT BE ALLOWED BY THIS OFFICE COVERING ANY PERIOD SUBSEQUENT TO DATE OF DISMISSAL, DURING WHICH NO SERVICE HAS BEEN RENDERED AND CLAIMANT WAS NOT IN A STATUS OF LEAVE OF ABSENCE WITH PAY. O-NEIL V. UNITED STATES, 56 CT. CLS. 89; WILMETH V. UNITED STATES, 64 CT. CLS. 368. THE CASE OF THE UNITED STATES V. WICKERSHAM, 201 U.S. 390, TO WHICH CLAIMANT REFERS IN SUPPORT OF HIS CLAIM, IS TO BE DISTINGUISHED BECAUSE THE FACTS THERE DISCLOSED THAT THE SUSPENSION OF THE EMPLOYEE FROM THE SERVICE WAS BY A SUBORDINATE OFFICER, WHICH ACTION WAS FINALLY DISAPPROVED BY THE APPOINTING POWER. THIS CASE WAS URGED BEFORE THE COURT OF CLAIMS BY THE PLAINTIFF IN THE CASE OF O NEIL V. UNITED STATES, SUPRA, BUT THE COURT PROPERLY HELD (QUOTING FROM THE SYLLABUS):

"WHERE THE HEAD OF AN EXECUTIVE DEPARTMENT REMOVES FROM OFFICE AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE WITHOUT STATING IN WRITING THE CAUSE OF REMOVAL AND FILING THE SAME AS DIRECTED BY LAW AND THE RULES OF THE CIVIL SERVICE COMMISSION, THE REMOVAL IS NEVERTHELESS VALID.

"WHERE AN EMPLOYEE HAS BEEN ILLEGALLY REMOVED FROM OFFICE THE COURT HAS NO JURISDICTION OF A CLAIM FOR SALARY UNLESS HIS RIGHT TO THE OFFICE HAS BEEN ESTABLISHED BY A COURT OF COMPETENT JURISDICTION.'

AS MR. EDGE WAS SEPARATED FROM THE SERVICE BY A QUALIFIED OFFICER OF THE WAR PRODUCTION BOARD, THE FACT THAT IT WAS DETERMINED SUBSEQUENTLY BY THE UNITED STATES CIVIL SERVICE COMMISSION THAT THE SEPARATION WAS NOT IN ACCORDANCE WITH THE VETERANS' PREFERENCE RIGHT STATUTE DID NOT VOID THE SEPARATION, AND THE EMPLOYEE COULD BE RESTORED TO HIS FORMER POSITION WITH THE CIVILIAN PRODUCTION ADMINISTRATION, SUCCESSOR TO THE WAR PRODUCTION BOARD, ONLY BY A FORMAL APPOINTMENT AND COMPLIANCE WITH ALL STATUTORY REQUIREMENTS INCIDENT TO SUCH APPOINTMENT.

SECTION 1757, REVISED STATUTES, REQUIRES AN OATH OF OFFICE TO BE EXECUTED BY "ANY PERSON ELECTED OR APPOINTED TO ANY OFFICE OF HONOR OR PROFIT.' COMP. GEN. 279. AN EMPLOYEE WHOSE SERVICES ARE TERMINATED BY A QUALIFIED OFFICIAL AND WHO REFUSES TO TAKE THE OATH NECESSARY TO APPOINTMENT TO ANOTHER POSITION, OR REAPPOINTMENT TO HIS FORMER POSITION, IS NOT ENTITLED TO COMPENSATION FOR ANY PERIOD OF TIME WHEN NO SERVICES ARE RENDERED OR PRIOR TO TAKING SUCH OATH. 14 COMP. GEN. 927.