B-88897, NOVEMBER 2, 1949, 29 COMP. GEN. 209

B-88897: Nov 2, 1949

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OR FURLOUGH WITHOUT PAY IS NOT PROPER UNLESS THE RESTORATION RESULTS FROM A DETERMINATION ON THE MERITS RATHER THAN FROM A FINDING OF MERE PROCEDURAL DEFECTS. FAILURE TO REINITIATE ADVERSE ACTION AGAINST THE EMPLOYEE UPON CORRECTION OF THE PROCEDURAL DEFECT MAY BE REGARDED AS AN ADMINISTRATIVE DETERMINATION THAT THE ORIGINAL ACTION WAS UNJUSTIFIED AND UNWARRANTED. - MAY BE REGARDED AS REFLECTING THAT THE ORIGINAL ADVERSE ACTION WAS "UNJUSTIFIED OR UNWARRANTED" WITHIN THE MEANING OF THE ACT OF JUNE 10. ARE REQUIRED IN THE APPLICATION OF THE PROVISIONS OF THE ACT OF JUNE 10. THE FIRST THREE QUESTIONS ARE CONCERNED WITH EMPLOYEES WITH VETERANS' PREFERENCE WHO WERE REDUCED IN GRADE AND COMPENSATION AND WHO SUBSEQUENTLY WERE PROMOTED BACK TO THEIR FORMER POSITIONS UPON APPEALS TO AND RECOMMENDATIONS BY THE CIVIL SERVICE COMMISSION.

B-88897, NOVEMBER 2, 1949, 29 COMP. GEN. 209

DISCHARGES AND SUSPENSIONS - APPEALS BASED ON PROCEDURAL DEFECTS - RESTORATION TO DUTY UNDER THE BACK-PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, AN AWARD OF RETROACTIVE COMPENSATION TO AN EMPLOYEE RESTORED TO DUTY AFTER A PERIOD OF "UNJUSTIFIED OR UNWARRANTED" REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY IS NOT PROPER UNLESS THE RESTORATION RESULTS FROM A DETERMINATION ON THE MERITS RATHER THAN FROM A FINDING OF MERE PROCEDURAL DEFECTS, SUCH AS IMPROPER OR INCOMPLETE NOTICE, ETC.; HOWEVER, FAILURE TO REINITIATE ADVERSE ACTION AGAINST THE EMPLOYEE UPON CORRECTION OF THE PROCEDURAL DEFECT MAY BE REGARDED AS AN ADMINISTRATIVE DETERMINATION THAT THE ORIGINAL ACTION WAS UNJUSTIFIED AND UNWARRANTED. THE RESTORATION TO DUTY AFTER SEPARATION OR SUSPENSION WITHOUT PAY OF AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE--- BOTH THE SEPARATION AND THE RESTORATION RESULTING FROM INSTRUCTIONS ISSUED BY AN INSTRUMENTALITY OTHER THAN THE EMPLOYING AGENCY, SUCH AS A LOYALTY BOARD, ETC.--- MAY BE REGARDED AS REFLECTING THAT THE ORIGINAL ADVERSE ACTION WAS "UNJUSTIFIED OR UNWARRANTED" WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948, SO AS TO ENTITLE SUCH EMPLOYEE TO THE RETROACTIVE PAY ADJUSTMENT PROVIDED FOR THEREIN.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, NOVEMBER 2, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 24, 1949, SUBMITTING FOR DECISION SEVERAL QUESTIONS AS TO WHAT SALARY ADJUSTMENTS, IF ANY, ARE REQUIRED IN THE APPLICATION OF THE PROVISIONS OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, AND OF THE ACT OF AUGUST 4, 1947, 61 STAT. 723, TO CERTAIN SPECIFIC SITUATIONS HEREINAFTER SET FORTH.

THE FIRST THREE QUESTIONS ARE CONCERNED WITH EMPLOYEES WITH VETERANS' PREFERENCE WHO WERE REDUCED IN GRADE AND COMPENSATION AND WHO SUBSEQUENTLY WERE PROMOTED BACK TO THEIR FORMER POSITIONS UPON APPEALS TO AND RECOMMENDATIONS BY THE CIVIL SERVICE COMMISSION. THE QUESTIONS ARE AS FOLLOWS:

(1) IN THOSE INSTANCES WHERE DECISIONS OF THE CIVIL SERVICE COMMISSION REQUIRE THAT AN EMPLOYEE'S POSITION BE RETROACTIVELY ESTABLISHED AT A GRADE OTHER THAN THAT IN WHICH HE HAS ACTUALLY BEEN SERVING, MUST HIS SALARY PAYMENTS BE RETROACTIVELY ADJUSTED TO CONFORM TO ONE OF THE STEP RATES IN SAID NEW GRADE?

(2) IN THOSE INSTANCES WHERE AN EMPLOYEE HAS ACTUALLY BEEN PAID ONE OF THE STEP RATES OF THE RETROACTIVELY ESTABLISHED POSITION, MAY THOSE PAYMENTS BE RETROACTIVELY ADJUSTED TO CONFORM TO THE SALARY RATE EARNED PRIOR TO HIS REDUCTION IN RANK AND COMPENSATION?

(3) IN THE EVENT QUESTIONS (1) AND (2) ABOVE ARE ANSWERED IN THE AFFIRMATIVE, AND CONSIDERING THE FACT THAT CORRECTIVE ACTION WAS NOT TAKEN DURING THE FISCAL YEAR WHEN THE SERVICES WERE PERFORMED SHOULD THE RETROACTIVE PAYMENTS BE PROCESSED AS CLAIMS TO YOUR OFFICE OR SHOULD PAYMENT BE MADE BY THE DEPARTMENT IN THE ASSUMPTION THAT FUNDS WERE ACTUALLY OBLIGATED AT THE TIME SERVICES WERE RENDERED?

THE ACT OF AUGUST 4, 1947, 61 STAT. 723, 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.)

OFFICE DECISION OF MARCH 2, 1949, 28 COMP. GEN. 489, HELD, IN EFFECT, THAT THE "CORRECTIVE ACTION" AUTHORIZED BY THE ABOVE 1947 STATUTE DID NOT INCLUDE AUTHORITY FOR THE PAYMENT OF "BACK ," AND THAT THE ONLY AUTHORITY FOR SUCH PAYMENT WAS THAT CONTAINED IN THE ACT OF JUNE 10, 1948. CASES INVOLVING REDUCTIONS IN RANK OR COMPENSATION ARE NOT COVERED BY THE ACT OF JUNE 10, 1948. (28 COMP. GEN. 200.)

ACCORDINGLY, QUESTIONS (1) AND (2) ARE ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY ANSWER TO QUESTION (3).

YOUR FOURTH QUESTION IS AS FOLLOWS:

(4) DO THE WORDS "UNJUSTIFIED OR UNWARRANTED," AS USED IN PUBLIC LAW 623, CONTEMPLATE PROCEDURAL DEFECTS IN PROCESSING AN ADVERSE ACTION, OR DO THEY RELATE SOLELY TO THE MERITS OF THE CASE?

THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 355, PROVIDES, INTER ALIA, FOR THE PAYMENT OF BACK SALARY TO EMPLOYEES UPON RESTORATION TO DUTY FOR PERIODS OF "UNJUSTIFIED OR UNWARRANTED" REMOVALS, SUSPENSIONS, OR FURLOUGHS WITHOUT PAY FROM THE FEDERAL SERVICE. IT IS STATED IN YOUR LETTER THAT, IN THE LIGHT OF THE LANGUAGE "UNJUSTIFIED OR UNWARRANTED" APPEARING IN THAT STATUTE, IT IS THE DEPARTMENT'S VIEW THAT AN APPEAL FROM A REMOVAL OR OTHER ADVERSE ACTION MUST BE DETERMINED UPON THE MERITS OF THE CASE IN ORDER TO WARRANT AN AWARD OF BACK PAY, AND THAT APPEALS BASED SOLELY UPON PROCEDURAL DEFECTS (E.G., FAILURE TO GIVE THE FULL PERIOD OF ADVANCE NOTICE OR TO STATE IN THE NOTICE THAT A RIGHT OF APPEAL EXISTED) HAVE NOT BEEN REGARDED AS ADJUDICATING THE MERITS OF THE CASE UNLESS THERE BE A FAILURE ON THE PART OF THE ADMINISTRATIVE OFFICE TO PROSECUTE THE ADVERSE ACTION AFTER CORRECTION OF THE PROCEDURAL INFRACTION, SUCH FAILURE BEING CONSTRUED AS AN ADMISSION THAT THE ACTION HAD BEEN RECONSIDERED UPON THE MERITS AND HELD TO BE UNJUSTIFIED.

YOUR DEPARTMENT'S POSITION IN THAT RESPECT IS IN ACCORD WITH THE VIEW OF THIS OFFICE. IN OTHER WORDS, WHERE AN EMPLOYEE IS RESTORED TO DUTY AFTER A REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY SOLELY BECAUSE OF THE FAILURE OF THE ADMINISTRATIVE OFFICE TO FOLLOW THE PROCEDURAL STEPS PRESCRIBED BY STATUTE OR REGULATION, AND IMMEDIATELY THEREAFTER THE PROCEDURAL DEFECT IS CORRECTED AND THE ADVERSE ACTION AGAINST THE EMPLOYEE AGAIN INITIATED WITH THE RESULT THAT IT BECOMES FINAL AND BINDING UPON THE EMPLOYEE, IT IS NOT CONSIDERED THAT THERE HAS BEEN A RESTORATION TO DUTY UPON THE GROUNDS THAT THE REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY WAS UNJUSTIFIED OR UNWARRANTED WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948. THE SECOND ACTION RESULTING IN A PROPER REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY OF AN EMPLOYEE MUST BE REGARDED AS INDICATING THAT SUCH ACTION WAS JUSTIFIED AND WARRANTED IN THE FIRST INSTANCE. ON THE OTHER HAND, IF NO FURTHER ACTION BE TAKEN AGAINST AN EMPLOYEE AFTER HE IS RESTORED TO DUTY BECAUSE OF A PROCEDURAL DEFECT IN PROCESSING HIS DISCHARGE, SUSPENSION, OR FURLOUGH, IT MUST BE ASSUMED THAT THERE HAS BEEN ADMINISTRATIVE DETERMINATION THAT THE ADVERSE PERSONNEL ACTION WAS UNJUSTIFIED OR UNWARRANTED.

YOUR FIFTH QUESTION IS AS FOLLOWS:

(5) DOES THE ACT OF 10 JUNE 1948 AUTHORIZE RETROACTIVE COMPENSATION IN THE CASE OF AN EMPLOYEE WHO IS RESTORED TO DUTY AFTER HE HAS BEEN SEPARATED FOR DISQUALIFICATION; INSTRUCTIONS FOR BOTH ACTIONS EMANATING FROM AN OUTSIDE AGENCY?

THIS QUESTION IS STATED TO HAVE ARISEN IN CONNECTION WITH THE AUDIT OF EMPLOYEES' BACKGROUND UNDER THE LOYALTY PROGRAM WHERE LOYALTY BOARDS HAVE ORDERED SEPARATIONS BUT SUCH EMPLOYEES ARE RESTORED TO DUTY UPON FURTHER INVESTIGATION OR BECAUSE OF APPEALS. UNDER THE STATED CIRCUMSTANCES, THE RESTORATION TO DUTY OF AN EMPLOYEE--- IF HE OTHERWISE QUALIFIES AS A "PERSON IN THE CLASSIFIED CIVIL SERVICE"--- REFLECTS THAT HIS REMOVAL OR SUSPENSION FROM THE SERVICE WAS UNJUSTIFIED OR UNWARRANTED WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948. ACCORDINGLY, QUESTION (5) IS ANSWERED IN THE AFFIRMATIVE.