B-97942, SEP. 10, 1959

B-97942: Sep 10, 1959

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THAT WE REVIEW OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FROM THE TIME YOU WERE REMOVED FROM YOUR POSITION WITH THE CORPS OF ENGINEERS. WHILE YOU WERE SERVING IN A POSITION EXEMPTED FROM THE COMPETITIVE SERVICE. YOU WERE REMOVED ON SPECIFIC CHARGES. ALTHOUGH YOU HAD NO STATUTORY PROTECTION AGAINST BEING REMOVED SUMMARILY AND WITHOUT FORMAL REASONS BECAUSE YOU DID NOT HAVE VETERAN'S PREFERENCE AND YOUR EMPLOYMENT WAS NOT PROTECTED BY THE ACT OF AUGUST 24. YOU WERE GIVEN AN OPPORTUNITY TO DEMONSTRATE THAT THE CHARGES AGAINST YOU WERE NOT CORRECT. AS A RESULT OF THIS REVIEW YOU WERE OFFERED REINSTATEMENT BUT YOU WERE UNABLE TO REPORT FOR DUTY. YOUR CLAIM FOR BACK PAY FOR THE PERIOD OF REMOVAL WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF NOVEMBER 5.

B-97942, SEP. 10, 1959

TO MR. JOHN A. LONDON:

ON JULY 27, 1959, MR. JEROME FARRIS OF THE LAW FIRM, WEYER, RODERICK, SCHROETER AND STERNE, REQUESTED, ON YOUR BEHALF, THAT WE REVIEW OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FROM THE TIME YOU WERE REMOVED FROM YOUR POSITION WITH THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, TO THE TIME THE AGENCY OFFERED TO REINSTATE YOU.

THE RECORD SHOWS THAT ON OCTOBER 3, 1957, WHILE YOU WERE SERVING IN A POSITION EXEMPTED FROM THE COMPETITIVE SERVICE, YOU WERE REMOVED ON SPECIFIC CHARGES. ALTHOUGH YOU HAD NO STATUTORY PROTECTION AGAINST BEING REMOVED SUMMARILY AND WITHOUT FORMAL REASONS BECAUSE YOU DID NOT HAVE VETERAN'S PREFERENCE AND YOUR EMPLOYMENT WAS NOT PROTECTED BY THE ACT OF AUGUST 24, 1912, 37 STAT. 555, AS AMENDED JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, YOU WERE GIVEN AN OPPORTUNITY TO DEMONSTRATE THAT THE CHARGES AGAINST YOU WERE NOT CORRECT. AS A RESULT OF THIS REVIEW YOU WERE OFFERED REINSTATEMENT BUT YOU WERE UNABLE TO REPORT FOR DUTY.

YOUR CLAIM FOR BACK PAY FOR THE PERIOD OF REMOVAL WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF NOVEMBER 5, 1958, ON THE GROUND THAT, AS AN EXCEPTED EMPLOYEE, AND A NONVETERAN, THE BACK PAY PROVISIONS OF THE 1912 ACT CANNOT BE EXTENDED TO YOU.

MR. FARRIS NOW CONTENDS THAT THE CASE OF VITARELLI V. SEATON, 359 U.S. 535, IS CONTROLLING IN THIS SITUATION AND THAT IT ENTITLED YOU TO BACK PAY FOR THE PERIOD OF YOUR REMOVAL. THAT DECISION WAS DIRECTED TO THE MATTER OF THE PLAINTIFF'S REINSTATEMENT BY THE DEPARTMENT OF THE INTERIOR BECAUSE OF A PROCEDURAL VIOLATION RATHER THAN ANY QUESTION OF BACK PAY. FURTHERMORE, SINCE THE EMPLOYEE IN THAT CASE PURPORTEDLY WAS REMOVED FOR REASONS OF NATIONAL SECURITY UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, HIS RIGHT TO BACK PAY--- NOW PENDING--- AFTER RESTORATION WOULD APPEAR TO BE FOR DETERMINATION UNDER THAT ACT, AND THAT ACT PROVIDES FOR PAYMENT OF BACK PAY TO REINSTATE EMPLOYEES WITHOUT REGARD TO THEIR CLASSIFIED OR COMPETITIVE STATUS. B 129169, JULY 22, 1959, 39 COMP. GEN. - . SINCE NO PROCEDURAL VIOLATION IS SHOWN IN YOUR CASE AND SINCE YOUR REMOVAL WAS NOT UNDER THE 1950 ACT THE VITARELLI CASE IS OF NO PROBATIVE VALUE IN DETERMINING YOUR ENTITLEMENT TO BACK PAY.

AN EXCEPTED EMPLOYEE IS, AS YOU ARE AWARE, WITHOUT COMPETITIVE STATUS AND IS NOT ENTITLED TO THE BENEFITS OF THE 1912 ACT. THE FACT THAT AN EMPLOYEE WITHOUT SUCH STATUS IS RESTORED TO HIS POSITION AS A RESULT OF PROCEEDINGS SIMILAR TO THOSE PRESCRIBED FOR EMPLOYEES TO WHOM THE ACT APPLIES CANNOT GIVE HIM THE RIGHT TO BACK PAY UNDER THE ACT. CHOLLAR V. UNITED STATES, 130 C.CLS. 338; JORDAN V. UNITED STATES, 123 C.CLS. 577; BROWN V. UNITED STATES, 122 C.CLS. 361; 34 COMP. GEN. 296. SEE ALSO RICHARDSON V. BAILEY, 182 F.2D 46 AFFIRMED 341 U.S. 918.

SINCE YOU HAVE PRESENTED NOTHING WHICH WOULD SERVE AS A BASIS FOR ALTERING OUR PREVIOUS SETTLEMENT, THE SETTLEMENT OF OUR OFFICE WHICH DISALLOWED YOUR CLAIM MUST BE SUSTAINED.