B-129760, APR. 4, 1957

B-129760, APR. 4, 1957

TO MR. ALBERT F. RYAN, SR.:

WE HAVE CONSIDERED YOUR CLAIM FOR COMPENSATION UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B) (3), AMONG OTHER STATUTORY PROVISIONS, COVERING A PERIOD OF REMOVAL IN A REDUCTION IN FORCE FROM A POSITION AS A FIREFIGHTER (INSPECTOR), GS-9, $5,225 PER ANNUM, AT THE LONG BEACH, CALIFORNIA, NAVAL SHIPYARD, AS WELL AS YOUR CLAIM FOR PAYMENT FOR SICK LEAVE STANDING TO YOUR CREDIT AT THE TIME OF YOUR REMOVAL.

INASMUCH AS YOU HAVE ALSO FILED A PETITION IN THE COURT OF CLAIMS (NO. 472-56) ASSERTING SUBSTANTIALLY THE SAME CLAIMS AS THE ONES FILED HERE, AND SINCE, AS HEREINAFTER EXPLAINED, WE DO NOT FEEL JUSTIFIED IN ALLOWING YOUR CLAIM IN FULL, WE DEEM IT APPROPRIATE FIRST TO ADVISE YOU OF THE BASIS UPON WHICH WE ARE WILLING TO SETTLE YOUR CLAIM. IF YOU SHOULD INDICATE YOUR WILLINGNESS TO ACCEPT THE SETTLEMENT UPON SUCH BASIS, WE WOULD THEN PROCESS THE SETTLEMENT. OTHERWISE, YOU MAY PURSUE THE MATTER IN COURT.

THE RECORD DISCLOSES THAT IN ACCORDANCE WITH NOTICE DATED NOVEMBER 2, 1949, YOU WERE SEPARATED FROM THE SERVICE BECAUSE OF REDUCTION IN FORCE (LIQUIDATION OF ACTIVITIES) EFFECTIVE DECEMBER 11, 1949, RATHER THAN AUGUST 19, 1949, AS ASSERTED IN YOUR CLAIM. IT FURTHER APPEARS THAT PRIOR TO THE EFFECTIVE DATE OF YOUR SEPARATION YOU HAD BEEN REFERRED FOR CONSIDERATION FOR REASSIGNMENT TO TWO CPC-10 FIREFIGHTER POSITIONS IN THE LOCAL COMMUTING AREA, THE FIRST AT THE NAVAL HOSPITAL, LONG BEACH, CALIFORNIA, AND THE SECOND AT THE LOS ANGELES NAVAL BASE; BUT THAT YOU WERE REJECTED AS PHYSICALLY UNQUALIFIED AS THE RESULT OF A PHYSICAL EXAMINATION. YOU APPEALED THE SEPARATION TO THE TWELFTH UNITED STATES CIVIL SERVICE REGION AND IN DECISION DATED FEBRUARY 7, 1950, ADDRESSED TO THE COMMANDING OFFICER, UNITED STATES NAVAL HOSPITAL, LONG BEACH, CALIFORNIA (THE PLACE TO WHICH YOU FIRST WERE REFERRED FOR CONSIDERATION FOR REASSIGNMENT), THE REGIONAL DIRECTOR ADVISED THAT IT WAS CONTRARY TO THE COMMISSION'S POLICY TO REQUIRE PHYSICAL EXAMINATIONS IN CONNECTION WITH REDUCTION IN FORCE REASSIGNMENTS, AND HE RECOMMENDED THAT YOU BE TRANSFERRED TO THE CPC 10 FIREFIGHTER POSITION OR TO ANY OTHER COMPARABLE POSITION WHICH WOULD MEET THE REQUIREMENTS OF SECTION 20.9 OF THE RETENTION PREFERENCE REGULATIONS. THE ADMINISTRATIVE AGENCY DID NOT RESTORE YOU IN ACCORDANCE WITH THAT RECOMMENDATION BUT UNDER APPROPRIATE PROVISIONS OF THE REGULATIONS APPEALED THE MATTER TO THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION. BY DECISION TO THE COMMANDER, UNITED STATES NAVAL BASE, LOS ANGELES, DATED NOVEMBER 14, 1950, THE BOARD SUSTAINED THE BASIS FOR THE REGIONAL DIRECTOR'S RECOMMENDATION (THE MATTER OF THE PHYSICAL EXAMINATION). THE DECISION BROUGHT OUT THAT THE CPC-10 FIREFIGHTER POSITION AT THE LONG BEACH NAVAL HOSPITAL NO LONGER WAS AVAILABLE DUE TO THE LIQUIDATION OF THAT INSTALLATION, AND IT EXPRESSED THE UNDERSTANDING, WHICH LATER PROVED TO BE INCORRECT, THAT THERE STILL WAS AVAILABLE AT THE LOS ANGELES NAVAL BASE A CPC-10 FIREFIGHTER POSITION OCCUPIED BY AN EMPLOYEE IN A LOWER RETENTION SUBGROUP THAN YOURS TO WHICH YOU COULD BE REASSIGNED.

THE RECOMMENDATION IN THE DECISION WAS THAT YOU BE RESTORED TO DUTY AND THAT APPROPRIATE CORRECTIVE ACTION BE TAKEN TO EFFECT YOUR REASSIGNMENT WITHIN THE DEPARTMENT OF THE NAVY IN THE LOCAL COMMUTING AREA IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 20.9 OF THE RETENTION PREFERENCE REGULATIONS. THE RECOMMENDATION DID NOT SPECIFICALLY REQUIRE RETROACTIVE ACTION REGARDING EITHER THE RESTORATION OR THE REASSIGNMENT; AND WE MAY POINT OUT THAT SECTION 20.9 OF THE RETENTION PREFERENCE REGULATIONS DID NOT PRECLUDE REDUCTION IN GRADE IF NO EMPLOYEE IN A LOWER SUBGROUP WAS RETAINED IN A HIGHER GRADE.

THE SITUATION PREVAILING WHEN THE RECOMMENDATION OF THE BOARD OF APPEALS AND REVIEW WAS RECEIVED AT THE LOS ANGELES NAVAL BASE WAS THAT BECAUSE OF LIQUIDATION THE CPC-10 POSITION AT THE LONG BEACH NAVAL HOSPITAL NO LONGER WAS AVAILABLE AND THE SIMILAR POSITION AT THE LOS ANGELES NAVAL BASE WAS OCCUPIED BY AN EMPLOYEE IN THE SAME RETENTION SUBGROUP (A-1) AS YOU WERE, AND, THEREFORE, COMPLIANCE WITH THE STRICT LETTER OF THE RECOMMENDATION WAS IMPOSSIBLE. THE MATTER WAS REFERRED TO THE DISTRICT CIVILIAN PERSONNEL DIRECTOR, ELEVENTH NAVAL DISTRICT AT SAN DIEGO, CALIFORNIA, AND BY LETTER DATED DECEMBER 11, 1950, THAT OFFICIAL ADVISED YOU THAT THERE WAS A FIREFIGHTER POSITION, CPC-8, OCCUPIED BY AN EMPLOYEE IN A-2 SUBGROUP AT THE UNITED STATES MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, AND YOU WERE ASKED TO CONTACT THE INDUSTRIAL RELATIONS OFFICER AT EL TORO IF YOU WERE INTERESTED. IN A LETTER DATED DECEMBER 13, 1950, TO THE CHAIRMAN, BOARD OF APPEAL AND REVIEW, CIVIL SERVICE COMMISSION, YOU INDICATED YOUR UNWILLINGNESS TO ACCEPT THE CPC-8 POSITION AND YOU APPEALED THE ADMINISTRATIVE FAILURE TO COMPLY LITERALLY WITH THE BOARD'S PRIOR RECOMMENDATION OF NOVEMBER 14, 1950. THAT LETTER EVIDENTLY WAS FORWARDED TO THE TWELFTH UNITED STATES CIVIL SERVICE REGION FOR APPROPRIATE ACTION, FOR UNDER DATE OF JANUARY 18, 1951, THE REGIONAL DIRECTOR ADVISED YOU IN EFFECT THAT UNDER THE RECOMMENDATION OF NOVEMBER 14, 1950, REGARDING REASSIGNMENT IN ACCORDANCE WITH SECTION 20.9 OF THE RETENTION PREFERENCE REGULATIONS YOU HAD NO RIGHT TO "BUMP" ANOTHER EMPLOYEE IN SUBGROUP A-1; THAT YOU HAD DECLINED THE OFFER OF THE CPC-8 POSITION; AND THAT MORE FAVORABLE ACTION COULD NOT BE TAKEN IN THE MATTER. THE LETTER ALSO ADVISED YOU OF THE ANTICIPATED REACTIVATION OF THE LONG BEACH NAVAL SHIPYARD AND OF THE ASSURANCE WHICH HAD BEEN GIVEN THAT YOU WOULD BE CONSIDERED FOR EMPLOYMENT IF AND WHEN A FIRE PROTECTION CREW WAS ESTABLISHED AT THE REACTIVATED STATION.

UPON REACTIVATION OF THE LONG BEACH NAVAL SHIPYARD, YOU WERE REEMPLOYED AS A FIREFIGHTER (INSPECTOR) GS-9, $5,225 PER ANNUM, EFFECTIVE FEBRUARY 19, 1951. HOWEVER, THIS ACTION DID NOT PURPORT TO BE AND MAY NOT BE REGARDED AS A REASSIGNMENT OR RESTORATION PURSUANT TO THE RECOMMENDATION OF NOVEMBER 14, 1950, HEREINBEFORE DISCUSSED.

YOUR RIGHT TO COMPENSATION FOR THE PERIOD OF SEPARATION DEPENDS PRIMARILY UPON THE PROVISIONS OF SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, SUPRA. SECTION 6 (B) (3) PROVIDES THAT ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD. ALSO PERTINENT TO THE MATTER IS SECTION 19 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 62 STAT. 575, 5 U.S.C. 868, WHICH REQUIRES MANDATORY COMPLIANCE WITH ANY RECOMMENDATION OF THE CIVIL SERVICE COMMISSION ON THE BASIS OF AN APPEAL OF A PREFERENCE ELIGIBLE, EMPLOYEE OR FORMER EMPLOYEE. BY NECESSARY IMPLICATION, SAID SECTION 19 APPLIES TO MATTERS ARISING UNDER THE REDUCTION-IN-FORCE PROVISIONS OF SECTION 12 OF THE ACT, 58 STAT. 390, 5 U.S.C. 861.

WE CONSIDER THE COMMISSION'S RECOMMENDATION OF NOVEMBER 14, 1950, AS REQUIRING TWO THINGS: FIRST, THAT YOU BE GIVEN A "PAPER" RESTORATION TO DUTY IN YOUR FORMER POSITION AS FIREFIGHTER, INSPECTOR, GS-9, AND, SECOND, THAT CORRECTIVE ACTION BE TAKEN TO EFFECT YOUR REASSIGNMENT WITHIN THE DEPARTMENT OF THE NAVY IN THE LOCAL COMMUTING AREA IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 20.9 OF THE RETENTION PREFERENCE REGULATIONS. WHILE THE DEPARTMENT DID NOT MAKE THE ,PAPER" RESTORATION, IT DID MAKE AN EFFORT TO COMPLY WITH THE REASSIGNMENT REQUIREMENT BY OFFERING YOU THE CPC -8 POSITION AT EL TORO. THE CIVIL SERVICE COMMISSION THROUGH ITS TWELFTH REGION OFFICE (LETTER OF JANUARY 18, 1951, TO YOU, MENTIONED ABOVE), HAS RECOGNIZED THAT THE CPC-8 OFFER WAS A COMPLIANCE WITH THE REASSIGNMENT RECOMMENDATION IN VIEW OF THE PERSONNEL CHANGES WHICH HAD OCCURRED WHILE THE APPEAL IN YOUR CASE WAS PENDING AND WHICH WERE UNKNOWN TO THE COMMISSION AT THE TIME OF ITS DECISION OF NOVEMBER 14, 1950.

ACCORDINGLY, IT IS OUR VIEW THAT YOU ARE ENTITLED TO "BACK PAY" UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, FOR THE PERIOD FROM DECEMBER 12, 1949--- THE DATE FOLLOWING YOUR SEPARATION BECAUSE OF REDUCTION IN FORCE--- THROUGH DECEMBER 13, 1950- - THE DATE YOU INDICATED IN A LETTER TO THE CHAIRMAN OF THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, YOUR REFUSAL OF THE OFFER OF THE CPC-8 POSITION. THAT IS TO SAY, IN THE LIGHT OF THE COMMISSION'S RECOMMENDATION OF NOVEMBER 14, 1950, AS AMENDED, BY THE LETTER OF JANUARY 18, 1951, WE REGARD YOUR REMOVAL IN A REDUCTION IN FORCE AS HAVING BEEN "UNJUSTIFIED OR UNWARRANTED" UNTIL YOU REFUSED A PROPER OFFER OF REASSIGNMENT. WE DO NOT REGARD THE PERIOD OF SEPARATION FROM SERVICE THEREAFTER AS "UNJUSTIFIED OR UNWARRANTED.'

THE COURT DECISIONS AND OUR DECISION PUBLISHED IN 34 COMP. GEN. 561,CITED IN YOUR CLAIM LETTER OF APRIL 25, 1956, DO NOT, IN OUR OPINION, REQUIRE ACTION ON YOUR CLAIM DIFFERENT FROM THAT HEREIN PROPOSED.

SETTLEMENT OF YOUR CLAIM UPON THE BASIS INDICATED WOULD RESULT IN THE ALLOWANCE OF THE GROSS AMOUNT OF APPROXIMATELY $5,285. SUCH GROSS AMOUNT WILL BE SUBJECT TO DEDUCTIONS FOR RETIREMENT AND INCOME TAX WITHHOLDING. THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE OF 5 DAYS AND 2 HOURS WHICH WAS MADE UPON YOUR SEPARATION ON DECEMBER 11, 1949, MAY BE SUBJECT TO A TECHNICAL ADJUSTMENT TO SHOW IT AS COVERING A PERIOD COMMENCING DECEMBER 14, 1950; HOWEVER, SUCH ADJUSTMENT PROBABLY WILL NOT RESULT IN AN APPRECIABLE CHANGE IN THE NET AMOUNT OTHERWISE PAYABLE.

YOUR CLAIM FOR PAYMENT FOR SICK LEAVE MUST BE DISALLOWED BECAUSE THERE IS NO PROVISION OF LAW AUTHORIZING PAYMENT FOR AN EMPLOYEE'S SICK LEAVE AFTER HIS SEPARATION FROM SERVICE. THE MATTER OF WHETHER THE LEAVE SHOULD BE RECREDITED TO YOU IN CONNECTION WITH YOUR SUBSEQUENT EMPLOYMENT IS ONE FOR THE CONSIDERATION OF THE DEPARTMENT OF THE NAVY UNDER APPLICABLE ANNUAL AND SICK LEAVE REGULATIONS.

AS HEREINBEFORE INDICATED, WE SHALL TAKE NO FURTHER ACTION IN THE MATTER UNTIL WE HEAR FROM YOU.