B-87481, SEPTEMBER 2, 1949, 29 COMP. GEN. 107

B-87481: Sep 2, 1949

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THE COMMISSION COULD RECOMMEND RESTORATION OF AN EMPLOYEE RETROACTIVE TO THE DATE OF SEPARATION AND ISSUE SUPPLEMENTAL RECOMMENDATIONS TO THAT EFFECT AS LONG AS THE ORIGINAL RECOMMENDATION WAS MADE ON OR AFTER AUGUST 4. AN EMPLOYEE WHO ERRONEOUSLY WAS REMOVED FROM THE SERVICE PRIOR TO JUNE 10. - IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD HE WAS OUT OF THE SERVICE AND HE MAY NOT COUNT SUCH PERIOD OF NON-SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. APPEALS THE DOWNWARD REALLOCATION OF HIS POSITION AND IS SUCCESSFUL IN OBTAINING A REVOCATION OF THE ORIGINAL REALLOCATION ACTION IS ENTITLED TO ANY DIFFERENCE IN COMPENSATION RETROACTIVE TO THE DATE HIS SALARY WAS CHANGED TO ACCORD WITH THE INITIAL EFFECTIVE DATE OF THE DOWNWARD REALLOCATION.

B-87481, SEPTEMBER 2, 1949, 29 COMP. GEN. 107

RESTORATION OF DISCHARGED EMPLOYEES - VETERANS' PREFERENCE ACT OF 1944, AS AMENDED UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED BY THE ACT OF AUGUST 4, 1947, REQUIRING AN ADMINISTRATIVE OFFICE TO TAKE SUCH CORRECTIVE ACTION AS THE CIVIL SERVICE COMMISSION FINALLY RECOMMENDS WITH RESPECT TO APPEALS OF PREFERENCE ELIGIBLES FOR RESTORATION TO DUTY, THE COMMISSION COULD RECOMMEND RESTORATION OF AN EMPLOYEE RETROACTIVE TO THE DATE OF SEPARATION AND ISSUE SUPPLEMENTAL RECOMMENDATIONS TO THAT EFFECT AS LONG AS THE ORIGINAL RECOMMENDATION WAS MADE ON OR AFTER AUGUST 4, 1947, REGARDLESS OF WHETHER THE ORIGINAL ADMINISTRATIVE ACTION OCCURRED PRIOR OR SUBSEQUENT TO THAT DATE. GENERALLY, AN EMPLOYEE WHO ERRONEOUSLY WAS REMOVED FROM THE SERVICE PRIOR TO JUNE 10, 1948--- THE DATE OF THE STATUTE PROVIDING FOR THE PAYMENT OF BACK PAY TO EMPLOYEES RESTORED TO DUTY AFTER ERRONEOUS REMOVAL--- IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD HE WAS OUT OF THE SERVICE AND HE MAY NOT COUNT SUCH PERIOD OF NON-SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND THE REGULATIONS ISSUED PURSUANT THERETO. AN EMPLOYEE WHO, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, APPEALS THE DOWNWARD REALLOCATION OF HIS POSITION AND IS SUCCESSFUL IN OBTAINING A REVOCATION OF THE ORIGINAL REALLOCATION ACTION IS ENTITLED TO ANY DIFFERENCE IN COMPENSATION RETROACTIVE TO THE DATE HIS SALARY WAS CHANGED TO ACCORD WITH THE INITIAL EFFECTIVE DATE OF THE DOWNWARD REALLOCATION, PROVIDED THE EMPLOYEE HAS REMAINED IN THE SAME POSITION AND HAS CONTINUED TO PERFORM SUBSTANTIALLY THE SAME DUTIES AS THERETOFORE. WHILE AN EMPLOYEE RESTORED TO DUTY AFTER A PERIOD OF ERRONEOUS SEPARATION PURSUANT TO CORRECTIVE ACTION RETROACTIVELY RECOMMENDED BY THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, IS NOT REQUIRED TO REFUND THE LUMP SUM LEAVE PAYMENT PROPERLY MADE (COMPUTED UPON HIS ACCRUED ANNUAL LEAVE LESS THE AMOUNT OF ADVANCED SICK LEAVE), THE EMPLOYEE MAY, IN VIEW OF THE LEAVE RECREDIT PROVISIONS OF SECTION 30.411 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, ELECT TO REFUND THE GROSS AMOUNT OF THE LUMP SUM AND HAVE HIS LEAVE ACCOUNT RECREDITED WITH THE ANNUAL LEAVE CREDITABLE UPON SEPARATION AND REDEBITED WITH THE AMOUNT OF ADVANCED SICK LEAVE. AN EMPLOYEE WHO ERRONEOUSLY WAS SEPARATED FROM THE SERVICE AND, UPON APPEAL UNDER THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WAS RESTORED TO DUTY PURSUANT TO THE CORRECTIVE ACTION RETROACTIVELY RECOMMENDED BY THE CIVIL SERVICE COMMISSION IS NOT ENTITLED TO BE CREDITED WITH THE ANNUAL AND SICK LEAVE HE WOULD HAVE EARNED DURING THE PERIOD OF HIS ACTUAL SEPARATION.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, SEPTEMBER 2, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 27, 1949, SUBMITTING FOR DECISION CERTAIN QUESTIONS IN CONNECTION WITH A CLAIM FROM DON J. MATTARO, AN EMPLOYEE OF THE VETERANS ADMINISTRATION REGIONAL OFFICE, WASHINGTON, D.C., FOR BACK PAY BECAUSE OF HIS HAVING BEEN DEMOTED IN GRADE AND HIS HAVING BEEN SUBSEQUENTLY SEPARATED FROM THE SERVICE, BUT WHOSE RESTORATION WAS ORDERED RETROACTIVELY EFFECTIVE TO JUNE 15, 1947, BY THE UNITED STATES CIVIL SERVICE COMMISSION.

IT IS REPORTED THAT, ON JUNE 15, 1947, THE SUBJECT EMPLOYEE WAS DEMOTED FROM GRADE CAF-11, $4,902 PER ANNUM, TO GRADE CAF-9, $4,902 PER ANNUM, AS THE RESULT OF A DOWNWARD ALLOCATION OF HIS POSITION, AND THAT, ON OCTOBER 8, 1947, HE WAS SEPARATED FROM THE GRADE CAF-9 POSITION AS THE RESULT OF CHARGES PREFERRED AGAINST HIM. THE EMPLOYEE APPEALED BOTH THE DOWNWARD REALLOCATION AND THE SEPARATION ACTION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, AS AMENDED, AND APPARENTLY THE APPEAL FIRST WAS HEARD BY THE FOURTH CIVIL SERVICE REGION WHICH HELD THAT BOTH ACTIONS WERE IMPROPER. IT IS NOT DISCLOSED WHO APPEALED THE CASE TO THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION, BUT IT IS ASSUMED THAT SUCH ACTION WAS TAKEN BY YOUR OFFICE. IN ANY EVENT, THAT BOARD, UNDER DATE OF JANUARY 7, 1949, AFFIRMED THE DECISION OF THE FOURTH CIVIL SERVICE REGION AND RECOMMENDED THAT MR. MATTARO BE RESTORED TO HIS OLD POSITION IN GRADE CAF-11. IN ACCORDANCE WITH THAT RECOMMENDATION, THE RESTORATION OF THE EMPLOYEE WAS EFFECTED ON FEBRUARY 7, 1949, TO GRADE CAF -11 AT A SALARY RATE OF $5,482.80 PER ANNUM, THE SECOND STEP IN THAT GRADE. SUBSEQUENTLY, ON THE BASIS OF GENERAL ACCOUNTING OFFICE DECISION OF MARCH 2, 1949, B-81930, 28 COMP. GEN. 489, THE EMPLOYEE REQUESTED THE CIVIL SERVICE COMMISSION TO REOPEN HIS CASE AND SAID AGENCY THEN RECOMMENDED THAT THE EMPLOYEE'S RESTORATION BE MADE RETROACTIVE TO JUNE 15, 1947, THE DATE HIS POSITION WAS REALLOCATED FROM GRADE CAF-11 TO GRADE CAF-9.

ON THE BASIS OF THE FOREGOING STATE OF FACTS YOU PRESENT FOUR QUESTIONS WHICH WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION NO. 1.

WAS THE CIVIL SERVICE COMMISSION LEGALLY AUTHORIZED TO ORDER THAT THE EMPLOYEE BE RESTORED TO DUTY IN THE GRADE CAF-11 POSITION EFFECTIVE AS OF JUNE 15, 1947, A DATE PRIOR TO AUGUST 4, 1947, THE DATE ON WHICH ITS ORDERS WERE MADE MANDATORY?

IN THE DECISION OF MARCH 2, 1949, 28 COMP. GEN. 489, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT, SINCE THE ACT OF AUGUST 4, 1947, 61 STAT. 723, PROVIDES THAT, IN CONNECTION WITH APPEALS TO THE CIVIL SERVICE COMMISSION UNDER THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, IT SHALL BE MANDATORY UPON AN ADMINISTRATIVE OFFICE TO TAKE "SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS" THE CIVIL SERVICE COMMISSION COULD RECOMMEND RESTORATION OF AN EMPLOYEE RETROACTIVE TO THE DATE OF HIS SEPARATION AND COULD ISSUE SUPPLEMENTAL RECOMMENDATIONS TO THAT EFFECT AS LONG AS THE ORIGINAL RECOMMENDATION OF THE COMMISSION WAS MADE ON OR AFTER THE DATE OF ENACTMENT OF THE ACT OF AUGUST 4, 1947, SUPRA. THE HOLDING IN THAT DECISION IS APPLICABLE TO ANY FINAL RECOMMENDATION OF THE CIVIL SERVICE COMMISSION ON AND AFTER AUGUST 4, 1947, REGARDLESS OF WHETHER THE ORIGINAL ADMINISTRATIVE ACTION WITH RESPECT TO AN EMPLOYEE OCCURRED PRIOR OR SUBSEQUENT TO THAT DATE. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION NO. 2.

IF THE PRECEDING QUESTION IS ANSWERED IN THE AFFIRMATIVE, MAY THE EMPLOYEE BE REGARDED AS HAVING RENDERED CONTINUOUS SERVICE IN GRADE CAF-11 FROM JUNE 15, 1947 TO FEBRUARY 7, 1949, FOR ALL PURPOSES?

IN GENERAL, THIS QUESTION IS FOR ANSWERING IN THE NEGATIVE. UNDER THE DECISIONS OF THIS OFFICE, THE EMPLOYEE IS NOT ENTITLED TO BACK SALARY FOR THE PERIOD HE WAS OUT OF THE SERVICE, HIS REMOVAL HAVING OCCURRED PRIOR TO THE DATE OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354; ALSO, THE COUNTING OF SUCH A PERIOD OF NON-SERVICE TOWARDS WITHIN-GRADE SALARY ADVANCEMENTS WOULD NOT APPEAR TO BE WITHIN THE CONTEMPLATION OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, ISSUED PURSUANT THERETO. SEE CHAPTER Z1-313 OF THE FEDERAL PERSONNEL MANUAL. HOWEVER, THERE IS ONE PHASE OF THIS QUESTION WHICH PRESENTS A DIFFERENT SITUATION, NAMELY, WHETHER THE EMPLOYEE HERE INVOLVED IS ENTITLED TO RECOVER ANY LOSS OF SALARY FROM THE DATE OF THE DOWNWARD REALLOCATION OF HIS POSITION ON JUNE 15, 1947, TO THE DATE HE WAS REMOVED FROM THE SERVICE ON OCTOBER 8, 1947, UPON THE GROUND THAT SUCH REALLOCATION ACTION WAS NULLIFIED BY THE CIVIL SERVICE COMMISSION UPON APPEAL.

IT APPEARS THAT THE CIVIL SERVICE COMMISSION REGARDS AN ALLOCATION OR REALLOCATION DOWNWARD OF A POSITION OCCUPIED BY A VETERAN AS A REDUCTION IN RANK OR COMPENSATION WITHIN THE MEANING OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, AND, IN ENTERTAINING APPEALS THEREUNDER, SAID COMMISSION PASSES UPON THE CORRECTNESS OF THE REALLOCATION ACTION. THE INSTANT CASE APPEARS TO BE AN EXAMPLE OF THAT TYPE. HENCE, WHERE AN EMPLOYEE APPEALS THE REALLOCATION OF HIS POSITION UNDER THE RIGHT OF APPEAL GIVEN BY SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, SUPRA, AND IS SUCCESSFUL IN OBTAINING A REVOCATION OF THE ORIGINAL REALLOCATION ACTION, THE ORIGINAL REALLOCATION ACTION IS RENDERED VOID AND THE EMPLOYEE IS ENTITLED TO ANY DIFFERENCE IN COMPENSATION RETROACTIVELY TO THE DATE HIS SALARY WAS CHANGED TO ACCORD WITH THE INITIAL EFFECTIVE DATE OF THE DOWNWARD REALLOCATION, ASSUMING, OF COURSE, THAT HE HAS REMAINED IN THE SAME POSITION AND CONTINUED TO PERFORM SUBSTANTIALLY THE SAME DUTIES AS THERETOFORE.

APPLYING THE FOREGOING PRINCIPLES TO THE CASE OF THE EMPLOYEE HERE INVOLVED IT FOLLOWS THAT SINCE THE REALLOCATION DOWNWARD OF HIS POSITION ON JUNE 15, 1947, WAS NULLIFIED BY THE CIVIL SERVICE COMMISSION AS THE RESULT OF AN APPEAL TO THAT AGENCY, THE EMPLOYEE IS ENTITLED TO RECOUP ANY LOSS OF COMPENSATION RESULTING THEREFROM, FROM THE EFFECTIVE DATE OF SUCH ACTION ON JUNE 15, 1947, TO THE DATE OF HIS REMOVAL FROM THE SERVICE ON OCTOBER 8, 1947. WHILE NO CHANGE WAS REQUIRED IN THE EMPLOYEE'S SALARY RATE AT THE TIME OF THE DOWNWARD REALLOCATION OF HIS POSITION, IT IS STATED IN YOUR LETTER THAT, HAD SUCH ACTION NOT BEEN TAKEN, HE WOULD HAVE BEEN ENTITLED TO A WITHIN GRADE SALARY ADVANCEMENT IN GRADE CAF-11 ON AUGUST 24, 1947. HENCE, THE EMPLOYEE IS ENTITLED TO THE DIFFERENCE BETWEEN THE SALARIES OF $4,902 AND $5,152.80 PER ANNUM FROM AUGUST 24 TO OCTOBER 8, 1947.

QUESTION NO. 3.

IF THE EMPLOYEE IS RESTORED TO DUTY AS OF JUNE 15, 1947, MUST HE BE REQUIRED TO REFUND THE LUMP-SUM PAYMENT MADE TO HIM FOR THE ACCRUED ANNUAL LEAVE AND BE RECREDITED WITH 335 HOURS OF ANNUAL LEAVE, OR MUST HE BE RECREDITED WITH 479 HOURS OF ANNUAL LEAVE AND REDEBITED WITH THE 144 HOURS OF UNEARNED SICK LEAVE WHICH HAD BEEN ADVANCED TO HIM?

SECTION 30.411 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDES AS FOLLOWS:

ANY PERMANENT EMPLOYEE WHO IS OR HAS BEEN RESTORED TO A POSITION AS A RESULT OF APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, OR AS A RESULT OF FORMAL APPEAL UNDER ANY OTHER AUTHORITY OR PROCEDURE, SHALL BE ENTITLED TO ANY ANNUAL OR SICK LEAVE WHICH REMAINED TO HIS CREDIT UPON SEPARATION.

UNDER THE CIRCUMSTANCES HERE INVOLVED, THERE IS NO REQUIREMENT OF LAW THAT THE LUMP-SUM PAYMENT WHICH WAS PROPER WHEN MADE MUST BE REFUNDED. HOWEVER, IN VIEW OF THE PROVISIONS OF THE QUOTED REGULATION AND OF THE CORRECTIVE ACTION RETROACTIVELY RECOMMENDED IN THE MATTER BY THE CIVIL SERVICE COMMISSION, IT APPEARS THAT THE EMPLOYEE PROPERLY MAY ELECT TO REFUND THE GROSS AMOUNT OF THE LUMP-SUM LEAVE PAYMENT, AND UPON SUCH REFUND HE IS ENTITLED TO HAVE HIS LEAVE ACCOUNT RECREDITED WITH 479 HOURS OF ANNUAL LEAVE AND REDEBITED WITH THE 144 HOURS OF SICK LEAVE REPORTED TO HAVE BEEN DEDUCTED FROM HIS ANNUAL LEAVE AT THE TIME OF HIS SEPARATION FROM THE SERVICE.

QUESTION NO. 4.

IS THE EMPLOYEE ENTITLED TO THE SICK AND ANNUAL LEAVE WHICH HE WOULD HAVE EARNED DURING THE PERIOD OF HIS ACTUAL SEPARATION FROM THE SERVICE?

THIS QUESTION IS ANSWERED IN THE NEGATIVE. THE LEAVE REGULATIONS CONTAIN NO AUTHORIZATION FOR CREDITING OF LEAVE UNDER SUCH CIRCUMSTANCES AND THIS OFFICE IS NOT AWARE OF ANY STATUTORY AUTHORITY TO THAT EFFECT. IT IS FOR NOTING THAT EVEN THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, SUPRA, SPECIFICALLY EXCLUDES THE ACCUMULATION OF LEAVE BY AN EMPLOYEE DURING PERIODS OF SUSPENSION OR SEPARATION FROM THE SERVICE.