B-129528, NOV. 2, 1956

B-129528, NOV. 2, 1956

TO MR. J. E. PERRY, AUTHORIZED CERTIFYING OFFICER, BONNEVILLE POWER ADMINISTRATION:

YOUR LETTER OF OCTOBER 10, 1956, REQUESTS A DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE PAYROLL VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR. ABRAHAM A. OSIPOVICH, A FORMER EMPLOYEE OF YOUR ADMINISTRATION. THE VOUCHER COVERS WAGES CLAIMED BY MR. OSIPOVICH FOR THE PERIOD BEGINNING OCTOBER 3, 1953, AND ENDING APRIL 1, 1954, DURING WHICH PERIOD HE WAS SUSPENDED FROM DUTY. THE FACTS IN THE CASE ARE REPORTED AS FOLLOWS:

"THIS EMPLOYEE WAS SUSPENDED FROM DUTY AS OF THE CLOSE OF BUSINESS OCTOBER 2, 1953, UPON ORDERS FROM THE SECRETARY OF THE INTERIOR. THE NOTICE FROM THE SECRETARY READ IN PART,"BY VIRTUE OF THE AUTHORITY VESTED IN ME BY EXECUTIVE ORDER 10450 DATED APRIL 27, 1953 (18 F.R. 2489) AND THE ACT OF AUGUST 26, 1950 (5 U.S.C., 1946 ED.SUPP. V, SECTION 22-1 ET SEQ.) YOU ARE HEREBY NOTIFIED THAT YOU ARE SUSPENDED FROM DUTY WITHOUT PAY AND SUCH SUSPENSION SHALL BE EFFECTIVE AT THE CLOSE OF BUSINESS ON OCTOBER 2, 1953.' THE EMPLOYEE WAS GRANTED ANNUAL LEAVE WITH THE UNDERSTANDING THAT THE LEAVE WOULD BE RE-CREDITED TO HIM IN ACCORDANCE WITH 32 COMP. GEN. 284, IF HE WERE REINSTATED.

"THE EMPLOYEE WAS IN AN ANNUAL LEAVE STATUS FROM OCTOBER 3, 1953, THROUGH SEVEN HOURS OF MARCH 9, 1954, AFTER WHICH HE WAS IN A LEAVE WITHOUT-PAY STATUS THROUGH MARCH 19, 1954. ON THE LATTER DATE HE SUBMITTED HIS RESIGNATION FOR REASONS OF HEALTH UPON THE ADVICE OF HIS PHYSICIAN. THE LETTER OF RESIGNATION AND IN AN ACCOMPANYING LETTER, HE REQUESTED INITIATION OF PROCEEDINGS FOR HIS IMMEDIATE DISABILITY RETIREMENT WHICH WAS GRANTED APRIL 1, 1954.

"THIS EMPLOYEE'S POSITION HAD NOT BEEN DESIGNATED OR CLASSIFIED AS SENSITIVE AT OR PRIOR TO THE TIME OF HIS SUSPENSION NOR WAS IT SO CLASSIFIED DURING ANY OF THE PERIOD FOR WHICH COMPENSATION IS CLAIMED.'

THE CLAIM APPEARS TO BE ASSERTED BY REASON OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF COLE V. YOUNG, 351 U.S. 536, IN WHICH THE COURT HELD THAT THE ACT OF AUGUST 26, 1950, 64 STAT. 476, WAS NOT PROPER FOR APPLICATION TO NONSENSITIVE POSITIONS. IN VIEW OF YOUR REPORT THAT MR. OSIPOVICH DID NOT OCCUPY A SENSITIVE POSITION IT FOLLOWS THAT HIS SUSPENSION FROM DUTY UNDER THAT ACT WAS NOT WARRANTED AND THAT THE PROVISIONS OF THAT ACT HAD NO APPLICATION. SUCH BEING THE CASE, THERE WAS NO ADMINISTRATIVE AUTHORITY OR DISCRETION TO RESTORE HIM TO DUTY UNDER THAT ACT NOR WAS THE AGREEMENT TO RECREDIT HIS ANNUAL LEAVE AUTHORIZED, SUCH A RECREDIT, AS INDICATED IN 32 COMP. GEN. 284, BEING BASED ON THE DISCRETION VESTED IN THE HEAD OF THE AGENCY BY THE 1950 ACT.

IN THE CIRCUMSTANCES, THE EMPLOYEE'S RIGHTS APPEAR FOR CONSIDERATION UNDER THE ACT OF JUNE 10, 1948, 62 STAT. 354, AS AMENDED. THE ADMINISTRATIVE SUSPENSION FROM DUTY MAY ONLY BE CONSIDERED AS PROCEDURAL ERROR; BUT AS IT WAS NOT A SUSPENSION WITHOUT PAY (EXCEPT FROM MARCH 9 TO MARCH 19, 1954) AND THE EMPLOYEE WAS NOT RESTORED TO DUTY, AS REQUIRED BY THE 1948 STATUTE, BUT VOLUNTARILY APPLIED FOR AND WAS GRANTED DISABILITY RETIREMENT, HE IS NOT ENTITLED TO ANY OF THE COMPENSATION CLAIMED BY HIM, EITHER UNDER THE ACT OF AUGUST 26, 1950, OR THE ACT OF JUNE 10, 1948.