B-99891, MAY 29, 1951, 30 COMP. GEN. 484

B-99891, MAY 29, 1951, 30 COMP. GEN. 484

OFFICERS AND EMPLOYEES - APPOINTMENTS SUBJECT TO LOYALTY INVESTIGATIONS ACT OF JUNE 10, 1948 AN EMPLOYEE WHO RECEIVES A REINSTATEMENT APPOINTMENT IN THE FEDERAL SERVICE SUBJECT TO A LOYALTY INVESTIGATION PURSUANT TO CIVIL SERVICE COMMISSION REGULATIONS AND EXECUTIVE ORDER 9835, AND WHO IS LATER RATED INELIGIBLE FOR SUCH EMPLOYMENT AND SUSPENDED UPON THE GROUND OF DISLOYALTY, IS NOT "IN THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SO AS TO BE ENTITLED, UPON RESTORATION AFTER APPEAL, TO COMPENSATION FOR THE PERIOD OF HIS SUSPENSION FROM THE SERVICE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, MAY 29, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1950, REQUESTING A DECISION AS TO THE ENTITLEMENT OF AN EMPLOYEE OF THE PUBLIC HOUSING ADMINISTRATION TO COMPENSATION UNDER THE ACT OF JUNE 10, 1948, AMENDING THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, FOR A PERIOD OF SUSPENSION FROM SERVICE. YOU WERE ADVISED IN OFFICE LETTER OF JANUARY 17, 1951, THAT ACTION UPON YOUR REQUEST WAS BEING HELD IN ABEYANCE PENDING THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF BAILEY V. RICHARDSON, 182 F.2D 46. THAT DECISION WAS RENDERED APRIL 30, 1951, AFFIRMING THE RULING OF THE LOWER COURT, 341 U.S. 918.

THE REPORTED FACTS IN RESPECT OF YOUR REQUEST ARE THAT ON MARCH 10, 1950, THE PUBLIC HOUSING ADMINISTRATION REINSTATED A FORMER "CLASSIFIED CIVIL SERVICE" NON-VETERAN EMPLOYEE IN ONE OF THE FIELD OFFICES, SUBJECT TO INVESTIGATION IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS. ON JULY 5, 1950, A NOTIFICATION WAS RECEIVED FROM THE CIVIL SERVICE COMMISSION REGIONAL LOYALTY BOARD ADVISING THAT THE EMPLOYEE WAS RATED NEGLIGIBLE FOR FEDERAL EMPLOYMENT UPON THE GROUND OF DISLOYALTY AND INSTRUCTING THE AGENCY TO SUSPEND HIM FROM DUTY IMMEDIATELY. PURSUANT TO THAT INSTRUCTION, THE EMPLOYEE WAS NOTIFIED OF HIS SUSPENSION TO BECOME EFFECTIVE AT THE CLOSE OF BUSINESS JULY 6, 1950. THE EMPLOYEE APPEALED THAT ACTION, AND UNDER DATE OF OCTOBER 2, 1950, THE LOYALTY REVIEW BOARD OF THE CIVIL SERVICE COMMISSION RENDERED A DECISION REVERSING THE ACTION OF THE REGIONAL LOYALTY BOARD AND REQUESTED THE RESTORATION OF THE EMPLOYEE TO HIS POSITION. IN CONFORMANCE THEREWITH, THE EMPLOYEE WAS RESTORED TO DUTY ON OCTOBER 5, 1950, WITH ADVICE THAT HE WOULD RECEIVE COMPENSATION DURING THE PERIOD OF HIS SUSPENSION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 10, 1948, SUPRA.

THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, ALTHOUGH AUTHORIZING PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS OF UNJUSTIFIED SUSPENSION OR REMOVAL FROM THE SERVICE IS LIMITED TO (1) ANY PERSON IN THE CLASSIFIED CIVIL SERVICE REMOVED OR SUSPENDED FROM THE SERVICE WITHOUT PAY, (2) ANY PERSON DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944; 58 STAT. 390, AS AMENDED, AND (3) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE. LIMITATIONS 2 AND 3 CLEARLY ARE NOT APPLICABLE TO THE EMPLOYEE HERE UNDER CONSIDERATION BECAUSE HE IS NOT A VETERAN, AND HIS SUSPENSION DID NOT OCCUR AS A RESULT OF A REDUCTION IN FORCE. HENCE, FOR COMPENSATION PURPOSES UNDER THAT ACT THE EMPLOYEE IS REQUIRED TO HAVE BEEN IN THE "CLASSIFIED CIVIL SERVICE" AT THE TIME OF HIS SUSPENSION FROM DUTY.

UNDER EXECUTIVE ORDER 9835, DATED MARCH 21, 1947, ESTABLISHING A LOYALTY PROGRAM FOR THE EXECUTIVE BRANCH OF THE GOVERNMENT, THERE IS REQUIRED A LOYALTY INVESTIGATION OF EVERY PERSON ENTERING THE CIVILIAN EMPLOYMENT OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. WHILE THE EXECUTIVE ORDER PROVIDES THAT THE LOYALTY INVESTIGATION MAY BE CONDUCTED AFTER A PERSON ENTERS UPON ACTUAL EMPLOYMENT, NEVERTHELESS, THE APPOINTMENT OF SUCH PERSON IS CONDITIONED UPON A FAVORABLE RECOMMENDATION WITH RESPECT TO HIS LOYALTY. ALSO, IT IS FURTHER PROVIDED THAT IF THE LOYALTY INVESTIGATION IS NOT COMPLETED THAT HIS EMPLOYMENT IS SUBJECT TO A LOYALTY INVESTIGATION EXPIRES UNLESS THE CIVIL SERVICE COMMISSION HAS MADE AN INITIAL ADJUDICATION OF DISLOYALTY AND THE CASE CONTINUES TO BE ACTIVE BY REASON OF APPEAL, IN WHICH EVENT THE INVESTIGATION IS REQUIRED TO BE COMPLETED.

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION IN RESPECT OF INVESTIGATIONS--- INCLUDING LOYALTY INVESTIGATION--- REQUIRED OF EMPLOYEES UNDER VARIOUS TYPES OF PERSONNEL ACTIONS (SECTION 2.112), IN EFFECT DURING THE TIME OF THE EMPLOYEE'S SUSPENSION FROM THE SERVICE, ARE, IN PERTINENT PART, AS FOLLOWS:

APPOINTMENTS SUBJECT TO INVESTIGATION. (A) THE FOLLOWING TYPES OF APPOINTMENTS SHALL BE MADE SUBJECT TO INVESTIGATION:

(1) ORIGINAL PROBATIONAL.

(2) REAPPOINTMENTS.

(3) REINSTATEMENTS.

(4) TEMPORARY APPOINTMENTS.

(5) INTERAGENCY TRANSFERS.

(6) CONVERSIONS FROM EXCEPTED, WAR SERVICE INDEFINITE OR TEMPORARY INDEFINITE APPOINTMENTS TO COMPETITIVE APPOINTMENTS.

(B) INVESTIGATION TO ESTABLISH THE INDIVIDUAL'S QUALIFICATIONS MAY BE MADE AT ANY TIME WITHIN EIGHTEEN MONTHS OF THE PERSONNEL ACTION AND REMOVAL MAY BE ORDERED BY THE COMMISSION IF SUCH INVESTIGATION DISCLOSES THAT THE INDIVIDUAL IS DISQUALIFIED FOR FEDERAL EMPLOYMENT.

IN THE CASE OF BAILEY V. RICHARDSON, 182 F.2D 46, AFFIRMED BY THE SUPREME COURT OF THE UNITED STATES ON APRIL 30, 1951, AS PREVIOUSLY INDICATED, IT WAS HELD, AMONG OTHER THINGS, THAT THE EMPLOYEE THERE INVOLVED WHO HAD BEEN REINSTATED IN THE FEDERAL SERVICE SUBJECT TO INVESTIGATION UNDER THE REGULATION OF THE CIVIL SERVICE COMMISSION AND EXECUTIVE ORDER 9835, WAS NOT IN THE CLASSIFIED CIVIL SERVICE WITHIN THE MEANING OF THE LLOYD- LAFOLLETTE ACT (ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948).

SINCE THE EMPLOYEE IN THE INSTANT CASE WAS REINSTATED SUBJECT TO INVESTIGATION AS REQUIRED BY THE CIVIL SERVICE COMMISSION REGULATIONS, AND AS THE INVESTIGATION IN HIS CASE WAS MADE WITHIN THE SPECIFIED 18 MONTHS, IT FOLLOWS, IN LINE WITH THE HOLDING IN THE BAILEY CASE, THAT AT THE TIME OF HIS SUSPENSION FROM THE SERVICE, HE WAS NOT IN THE "CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SUPRA, CONSEQUENTLY, HE IS NOT ENTITLED TO COMPENSATION DURING THE PERIOD OF HIS SUSPENSION FROM THE SERVICE.