B-87252, JULY 15, 1949, 29 COMP. GEN. 24

B-87252, JULY 15, 1949, 29 COMP. GEN. 24

COMPENSATION - DISCHARGES, SUSPENSIONS, ETC. - DEPARTMENT OF MEDICINE AND SURGERY EMPLOYEES IN THE ABSENCE OF ANY PROVISION IN THE ACT OF JANUARY 3, 1946, ESTABLISHING A DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS ADMINISTRATION, THAT MAY BE CONSTRUED AS SPECIFICALLY AUTHORIZING THE PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS DURING WHICH THEY ARE IN A NON-DUTY STATUS, THERE IS NO AUTHORITY TO PROVIDE BY REGULATION--- CONTAINING LANGUAGE SIMILAR TO THE "BACK PAY" PROVISIONS OF THE ACT OF JUNE 10, 1948--- FOR THE PAYMENT OF COMPENSATION TO EMPLOYEES APPOINTED UNDER SECTION 4 (A) OF THE 1946 ACT FOR PERIODS OF REMOVAL OR SUSPENSION FROM DUTY WITHOUT PAY UPON THEIR RESTORATION TO DUTY AFTER FINDINGS THAT SUCH REMOVALS WERE UNJUSTIFIED OR UNAUTHORIZED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, JULY 15, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1949, PRESENTING FOR DECISION A QUESTION AS TO WHETHER THE VETERANS ADMINISTRATION MAY AUTHORIZE BY REGULATION THE PAYMENT OF COMPENSATION TO MEDICAL, DENTAL, OR NURSING PERSONNEL APPOINTED UNDER THE PROVISIONS OF SECTION 4 (A) OF THE ACT OF JANUARY 3, 1946, 59 STAT. 675, FOR PERIODS OF REMOVAL OR SUSPENSION FROM DUTY WITHOUT PAY, UPON THEIR RESTORATION TO DUTY AFTER FINDINGS THAT SUCH REMOVALS OR SUSPENSIONS WERE UNJUSTIFIED OR UNAUTHORIZED.

THE PROPOSED REGULATION, WHICH IS QUOTED IN YOUR LETTER, FOLLOWS SUBSTANTIALLY THE PROVISIONS OF SECTION 6 (B) (1) OF PUBLIC LAW 623, APPROVED JUNE 10, 1948, 62 STAT. 355.

THE WELL-SETTLED RULE OF ACCOUNTING OFFICERS OF THE GOVERNMENT WITH RESPECT TO THE PAYMENT OF COMPENSATION AS PROPOSED IN THE TENTATIVE REGULATION IS THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, SUCH COMPENSATION MAY NOT BE PAID. THE RULE IS BASED UPON THE VIEW THAT THE RIGHT OF AN EMPLOYEE TO PAY DEPENDS UPON HIS BEING IN A DUTY STATUS, THAT IS, IN ACTUAL PERFORMANCE OF SERVICE OR ON AUTHORIZED LEAVE OF ABSENCE WITH PAY, SUSPENSION OR REMOVAL FROM DUTY, OF COURSE, PLACING HIM IN A NON -DUTY STATUS. WHILE THE VALIDITY OF THE RULE HAS BEEN RECOGNIZED BY THE CONGRESS (SEE LEGISLATIVE HISTORY OF PUBLIC LAW 623, SUPRA), THAT BODY HAS ENACTED REMEDIAL LEGISLATION WITH RESPECT TO CERTAIN CLASSES OF EMPLOYEES WHERE THE APPLICATION OF THE RULE HAS WORKED INEQUITIES.

THE ANSWER TO THE QUESTION RAISED BY YOUR LETTER WOULD DEPEND, THEREFORE, UPON WHETHER THE LANGUAGE OF THE ACT OF JANUARY 3, 1946, SUPRA, EXPRESSLY OR BY REASONABLE IMPLICATION SPECIFICALLY AUTHORIZES PAYMENT OF COMPENSATION AS PROPOSED. THE POWERS GRANTED TO THE ADMINISTRATOR AND THE CHIEF MEDICAL DIRECTOR BY THE SAID ACT UNQUESTIONABLY ARE VERY BROAD. HOWEVER, A CAREFUL READING OF THE STATUTE FAILS TO DISCLOSE ANY LANGUAGE THAT MAY BE CONSTRUED AS SPECIFICALLY AUTHORIZING PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS DURING WHICH THEY ARE IN A NON-DUTY STATUS.

WHILE, AS SUGGESTED BY YOUR LETTER, THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE PROPOSED REGULATION APPEARS TO BE IN ACCORD WITH RECENT DEVELOPMENTS IN ADMINISTRATIVE AND LEGISLATIVE THINKING, I AM CONSTRAINED, IN VIEW OF THE LONG-STANDING RULE AND THE ABSENCE OF LANGUAGE IN THE LAW SUSCEPTIBLE OF A CONSTRUCTION FAVORABLE TO YOUR REQUEST, TO HOLD THAT THE PAYMENT OF COMPENSATION AS PROPOSED IS UNAUTHORIZED.