B-81930, MARCH 2, 1949, 28 COMP. GEN. 489

B-81930: Mar 2, 1949

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SUCH BROAD CORRECTIVE ACTION IS NOT MANDATORY UPON THE COMMISSION. IF RESTORATION IS RECOMMENDED RETROACTIVELY TO THE DATE OF SEPARATION. THE SEPARATION IS RESCINDED AND NO NEW APPOINTMENT OR OATH OF OFFICE IS NECESSARY. IN WHICH THE RESTORATION OF PREFERENCE ELIGIBLE EMPLOYEES WAS RECOMMENDED BY THE CIVIL SERVICE COMMISSION MAY BE REOPENED BY THE COMMISSION FOR THE PURPOSE OF MAKING ADDITIONAL RECOMMENDATIONS AS TO THE DATES OF RESTORATION. SUCH SUPPLEMENTAL RECOMMENDATIONS ARE MANDATORY ONLY IN THOSE CASES IN WHICH THE ORIGINAL RECOMMENDATION WAS MADE ON OR AFTER AUGUST 4. REQUESTING A DECISION UPON CERTAIN QUESTIONS WHICH HAVE ARISEN UNDER THE PROVISIONS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944.

B-81930, MARCH 2, 1949, 28 COMP. GEN. 489

DISCHARGES AND SUSPENSIONS - RESTORATION, ETC. - VETERANS' PREFERENCE ACT OF 1944, AS AMENDED WHILE SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, REQUIRING AN ADMINISTRATIVE OFFICER TO TAKE SUCH CORRECTIVE ACTION AS THE CIVIL SERVICE COMMISSION FINALLY RECOMMENDS WITH RESPECT TO APPEALS OF PREFERENCE ELIGIBLES FOR RESTORATION TO DUTY, COMPREHENDS A COMPLETE REVISION OF THE ADMINISTRATIVE RECORDS, INCLUDING A RESCISSION OF THE ADVERSE ADMINISTRATIVE ACTION AND A RESTORATION TO THE ROLLS RETROACTIVELY AS OF THE EFFECTIVE DATE OF SUCH ADVERSE ACTION, SUCH BROAD CORRECTIVE ACTION IS NOT MANDATORY UPON THE COMMISSION, SO THAT A MERE RECOMMENDATION FOR RESTORATION DOES NOT NECESSARILY REQUIRE RETROACTIVELY EFFECTIVE ACTION. SHOULD THE CIVIL SERVICE COMMISSION IN LINE WITH ITS DISCRETIONARY AUTHORITY UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, RECOMMEND RESTORATION OF A PREFERENCE ELIGIBLE EMPLOYEE AT A DATE SUBSEQUENT TO THE DATE ADMINISTRATIVELY FIXED FOR SEPARATION, THEN THE SEPARATION WOULD BECOME AN ACCOMPLISHED FACT AND A NEW APPOINTMENT AND OATH OF OFFICE WOULD BE REQUIRED; BUT IF RESTORATION IS RECOMMENDED RETROACTIVELY TO THE DATE OF SEPARATION, THE SEPARATION IS RESCINDED AND NO NEW APPOINTMENT OR OATH OF OFFICE IS NECESSARY. THE "CORRECTIVE ACTION" REQUIRED OF ADMINISTRATIVE OFFICERS IN ACCORDANCE WITH RECOMMENDATIONS MADE BY THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WITH RESPECT TO APPEALS OF PREFERENCE ELIGIBLES FOR RESTORATION TO DUTY, MAY NOT INCLUDE AN AUTHORIZATION FOR THE PAYMENT OF "BACK PAY" UPON RESTORATION AND THE ADJUSTMENT OF LEAVE ACCOUNTS IN CONNECTION WITH PERIODS OF SEPARATION OR SUSPENSION. PREVIOUSLY SETTLED APPEALS UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, IN WHICH THE RESTORATION OF PREFERENCE ELIGIBLE EMPLOYEES WAS RECOMMENDED BY THE CIVIL SERVICE COMMISSION MAY BE REOPENED BY THE COMMISSION FOR THE PURPOSE OF MAKING ADDITIONAL RECOMMENDATIONS AS TO THE DATES OF RESTORATION; BUT SUCH SUPPLEMENTAL RECOMMENDATIONS ARE MANDATORY ONLY IN THOSE CASES IN WHICH THE ORIGINAL RECOMMENDATION WAS MADE ON OR AFTER AUGUST 4, 1947, THE DATE OF THE AMENDMENT TO THE SAID SECTION WHICH MADE THE RECOMMENDATIONS OF THE COMMISSION MANDATORY UPON ADMINISTRATIVE OFFICERS.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 2, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 26, 1948, REQUESTING A DECISION UPON CERTAIN QUESTIONS WHICH HAVE ARISEN UNDER THE PROVISIONS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 60 STAT. 723, RESPECTING THE RESTORATION OF DUTY OF A CIVILIAN EMPLOYEE UPON THE FINDING AND RECOMMENDATION OF THE CIVIL SERVICE COMMISSION IN AN APPEAL THERETO UNDER THE SAID VETERANS' PREFERENCE ACT.

THE AMENDATORY ACT OF AUGUST 4, 1947, PUBLIC LAW 325, PROVIDES AS FOLLOWS:

THAT THE FIRST PROVISO OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 (58 STAT. 387) IS HEREBY AMENDED TO READ AS FOLLOWS: "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 THE SAME TO THE APPELLANT OR TO HIS DESIGNATED REPRESENTATIVE, AND IT SHALL BE MANDATORY FOR SUCH ADMINISTRATIVE OFFICER TO TAKE SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS.' ( ITALICS SUPPLIED.)

THE QUESTIONS PRESENTED IN YOUR LETTER ARE STATED AS FOLLOWS:

(1) MAY A RESTORATION RESULTING FROM A FINDING AND RECOMMENDATION OF THE COMMISSION IN AN APPEAL UNDER THE VETERANS' PREFERENCE ACT OF 1944 BE MADE RETROACTIVELY EFFECTIVE AS OF THE DATE OF THE ADVERSE ADMINISTRATIVE ACTION?

IF YOUR ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE:

(2) IS A RECOMMENDATION OF THE COMMISSION FOR RESTORATION IN AN APPEAL UNDER THE VETERANS' PREFERENCE ACT AUTOMATICALLY EFFECTIVE AS OF THE DATE OF THE ADVERSE ADMINISTRATIVE ACTION OR IS A RECOMMENDATION OF THE COMMISSION FOR RETROACTIVE RESTORATION REQUIRED IN ORDER THAT THE RESTORATION MAY BE MADE RETROACTIVE?

(3) IS THE RESTORATION IN AN APPEAL UNDER THE VETERANS' PREFERENCE ACT A RESCISSION OF THE ADVERSE ADMINISTRATIVE ACTION SO THAT IT DOES NOT REQUIRE A NEW APPOINTMENT OR OATH OF OFFICE?

(4) IN RECOMMENDING CORRECTIVE ACTION ON APPEAL UNDER THE VETERANS' PREFERENCE ACT MAY THE COMMISSION MAKE FINDING AND RECOMMENDATION WITH RESPECT TO THE "BACK PAY" TO BE PAID THE APPELLANT UPON RESTORATION?

(5) WHERE AN EMPLOYEE WAS SUSPENDED WITHOUT PAY OR REQUIRED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY IN ANTICIPATION OF HIS DISMISSAL AND THE COMMISSION FINDS ON APPEAL THAT THE DISMISSAL WAS UNWARRANTED, AND RECOMMENDS HIS RESTORATION, MAY THE COMMISSION ALSO RECOMMEND THAT HE BE PAID FOR THE PERIOD OF SUSPENSION OR LEAVE WITHOUT PAY AND THAT HIS ANNUAL LEAVE BE RESTORED TO HIM?

(6) IF YOUR REPLY TO THESE QUESTIONS IS ALSO IN THE AFFIRMATIVE, WOULD THE COMMISSION BE REQUIRED OR AUTHORIZED TO REOPEN PREVIOUS APPEALS UNDER THE VETERANS' PREFERENCE ACT, IN WHICH IT HAD RECOMMENDATIONS WITH RESPECT TO DATE OF RESTORATION AND PARTICULARLY WITH RESPECT TO BACK AY?

THE ITALICIZED PORTION OF THE ABOVE-QUOTED STATUTE SPECIFICALLY PROVIDES THAT IT SHALL BE MANDATORY UPON THE ADMINISTRATIVE OFFICER TO TAKE "SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS.' HENCE, IT IS CLEAR THAT THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO DETERMINE THE NATURE AND EXTENT OF THE CORRECTIVE ACTION TO BE TAKEN. HOWEVER, WHILE IT WOULD APPEAR THAT PROPER ,CORRECTIVE ACTION" IN CASES ARISING UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT WOULD COMPREHEND A COMPLETE REVISION OF THE ADMINISTRATIVE RECORDS--- INCLUDING A RESCISSION OF THE ADVERSE ADMINISTRATIVE ACTION AND A RESTORATION TO THE ROLLS OF THE EMPLOYEE RETROACTIVELY AS OF THE EFFECTIVE DATE OF SUCH ADVERSE ACTION--- SUCH BROAD "CORRECTIVE ACTION" IS NOT MANDATORY UPON THE COMMISSION. THAT IS TO SAY, WHILE IT MAY RECOMMEND THAT RESTORATION BE RETROACTIVELY EFFECTIVE TO THE DATE OF ADVERSE ADMINISTRATIVE ACTION. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

WITH RESPECT TO QUESTION 3, IT MAY BE STATED THAT SHOULD THE COMMISSION, IN LINE WITH ITS DISCRETIONARY AUTHORITY DISCUSSED ABOVE, RECOMMEND RESTORATION AT A DATE SUBSEQUENT TO THE DATE ADMINISTRATIVELY FIXED FOR SEPARATION, THEN THE SEPARATION WOULD BECOME AN ACCOMPLISHED FACT AND A NEW APPOINTMENT AND OATH OF OFFICE WOULD BE REQUIRED. OTHERWISE, IF RESTORATION IS RECOMMENDED RETROACTIVELY TO THE DATE OF SEPARATION, THE SEPARATION IS RESCINDED AND NO NEW APPOINTMENT OR OATH OF OFFICE IS NECESSARY.

RESPECTING QUESTIONS 4 AND 5 WHICH RELATE TO MATTERS OF RECOMMENDING THE PAYMENT OF COMPENSATION AND THE ADJUSTMENT OF LEAVE ACCOUNTS IN CONNECTION WITH PERIODS OF SEPARATION OR SUSPENSION, IT MAY BE SAID THAT, STANDING ALONE, THE BROAD AUTHORITY CONFERRED UPON THE COMMISSION BY THE AMENDATORY PROVISIONS OF THE ACT OF AUGUST 4, 1947, SUPRA, TO RECOMMEND "CORRECTIVE ACTION" MIGHT BE CONSTRUED AS INCLUDING AUTHORITY TO RECOMMEND THAT "BACK PAY" BE PAID TO THE APPELLANT UPON RESTORATION. HOWEVER, EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID 1947 STATUTE THROWS CONSIDERABLE DOUBT UPON SUCH CONSTRUCTION. IN REPORT NO. 568, SENATE COMMITTEE ON CIVIL SERVICE ON H.R. 966, FOR WHICH THERE WAS SUBSTITUTED IDENTICAL BILL S. 1494--- SUBSEQUENTLY ENACTED AS THE SAID 1947 STATUTE--- AFTER SETTING FORTH THE PURPOSE OF THE BILL AS BEING TO FIX RESPONSIBILITY FOR THE ENFORCEMENT OF THE VETERANS' PREFERENCE ACT OF JUNE 27, 1944, 58 STAT. 387, IN VIEW OF THE DEMONSTRATED LACK OF OBSERVATION OF THE SPIRIT AND LETTER OF THAT LAW BY ADMINISTRATIVE OFFICIALS WHICH RESULTED IN DENIAL OF THE VETERAN'S EQUITY FOR REINSTATEMENT TO THE DEFINITE DETRIMENT OF HIS EARNING CAPACITY, IT IS STATED:

THERE IS OTHER LEGISLATION (S. 1486) WHICH HAS BEEN RECOMMENDED BY THIS COMMITTEE, TO PROVIDE REIMBURSEMENT FOR PERIODS OF SEPARATION FROM THE SERVICE IN THE CASES OF PERSONS IMPROPERLY REMOVED FROM SUCH SERVICE. THUS WILL THE ISSUE OF ABUSE OF IRREGULAR SEPARATION WITHOUT BENEFIT OF SALARY WHICH WOULD HAVE BEEN PAID AND THE FURTHER ABUSE OF UNRESTRAINED MISOBSERVANCE OF THE VETERANS' PREFERENCE ACT IN MANY CASES HAVE BEEN MET.

THUS, THERE IS A REASONABLE BASIS FOR THE VIEW THAT AN AUTHORIZATION FOR THE PAYMENT OF "BACK PAY" WAS NOT ONE OF THE ELEMENTS INTENDED BY THE CONGRESS TO BE EMBRACED WITHIN THE SCOPE OF THE PHRASE,"CORRECTIVE ACTION," AS THAT PHRASE IS USED IN THE SAID ACT OF AUGUST 4, 1947.

THE BILL S. 1486 MENTIONED IN THE ABOVE-QUOTED COMMITTEE'S REPORT SUBSEQUENTLY WAS ENACTED INTO LAW AS PUBLIC LAW 623, APPROVED JUNE 10, 1948, 62 STAT. 354. IN DECISION OF THIS OFFICE DATED SEPTEMBER 28, 1948, 28 COMP. GEN. 200, TO YOU, IT WAS HELD THAT THE SAID ACT OF JUNE 10, 1948, AUTHORIZING PAYMENT OF COMPENSATION FOR PERIODS OF SUSPENSIONS AS WELL AS FOR SEPARATIONS, HAS NO RETROACTIVE EFFECT AND IS FOR APPLICATION ONLY TO THOSE CASES IN WHICH THE ADVERSE ADMINISTRATIVE ACTION WAS TAKEN AFTER THE DATE OF ENACTMENT OF THAT ACT. SINCE IT IS UNDERSTOOD THAT YOUR QUESTIONS HAVE REFERENCE TO CASES IN WHICH ADVERSE ADMINISTRATIVE ACTION WAS TAKEN PRIOR TO JUNE 10, 1948, QUESTIONS 4 AND 5 ARE ANSWERED IN THE NEGATIVE.

SO FAR AS CONCERNS THE RIGHT OF THE CIVIL SERVICE COMMISSION TO REOPEN PREVIOUSLY SETTLED APPEALS UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT, IT APPEARS THAT THE SAID ACT OF AUGUST 4, 1947, WAS INTENDED AS AUTHORIZING SUPPLEMENTAL RECOMMENDATIONS WHERE FOUND BY THE COMMISSION TO BE REQUIRED, IN VIEW OF THE LANGUAGE THEREIN THAT IT SHALL BE MANDATORY FOR THE ADMINISTRATIVE OFFICER TO TAKE SUCH CORRECTIVE ACTION "AS THE COMMISSION FINALLY RECOMMENDS.' OF COURSE, THE AUTHORITY TO MAKE SUCH MANDATORY SUPPLEMENTAL RECOMMENDATIONS COVERS ONLY THOSE CASES IN WHICH THE ORIGINAL RECOMMENDATION WAS MADE ON OR AFTER AUGUST 4, 1947, AND, IN LINE WITH THE FOREGOING STATEMENTS MADE IN ANSWER TO QUESTIONS 4 AND 5, DOES NOT INCLUDE AUTHORIZATION FOR "BACK PAY.'