B-128918, SEP. 14, 1956

B-128918, SEP. 14, 1956

TO MRS. ADELINE GIER SMITH:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 25 AND SEPTEMBER 5, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF NOVEMBER 15, 1955, WHEREIN YOU WERE ALLOWED THE NET AMOUNT OF $1,626.05, UPON YOUR CLAIM FOR COMPENSATION COVERING THE PERIOD MARCH 2, 1953, TO JANUARY 10, 1954, DURING WHICH YOU WERE SEPARATED FROM EMPLOYMENT WITH THE NATIONAL PRODUCTION AUTHORITY, DEPARTMENT OF COMMERCE.

THE RECORD SHOWS THAT YOU WERE SEPARATED FROM THE POSITION OF COMMODITY INDUSTRY ANALYST, GS-9, $5,310 PER ANNUM, BY A REDUCTION-IN FORCE ACTION EFFECTIVE MARCH 1, 1953. ON JANUARY 10, 1954, YOU WERE APPOINTED TO A POSITION IN THE FEDERAL TRADE COMMISSION. IT FURTHER APPEARS THAT IN A LETTER DATED JUNE 10, 1955, THE CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW INFORMED THE DEPARTMENT OF COMMERCE THAT IT WAS DETERMINED THAT YOUR REASSIGNMENT RIGHTS WERE NOT DULY CONSIDERED BY THE DEPARTMENT IN EFFECTING YOUR REDUCTION IN FORCE, AND RECOMMENDED THAT YOU BE RESTORED, RETROACTIVELY TO MARCH 2, 1953, TO THE POSITION FOR WHICH THE BOARD HAD FOUND YOU SHOULD HAVE BEEN REASSIGNED. THE LETTER STATES IN THIS CONNECTION AS FOLLOWS:

"IT IS THE DECISION OF THE BOARD OF APPEALS AND REVIEW, BASED UPON A CAREFUL STUDY OF ALL THE EVIDENCE OF RECORD SUBMITTED IN CONNECTION WITH MRS. SMITH'S APPEAL TO THE COMMISSION, THAT THE DEPARTMENT OF COMMERCE HAS NOT DULY CONSIDERED AND PROPERLY DETERMINED HER REASSIGNMENT RIGHTS IN CONNECTION WITH THIS REDUCTION IN FORCE. THIS DECISION IS BASED UPON THE FACT THAT THE BOARD FINDS SHE MEETS THE REQUIREMENTS FOR REASSIGNMENT UNDER THE RETENTION PREFERENCE REGULATIONS IN EFFECT AT THE TIME OF THE REDUCTION IN FORCE, IN VIEW OF HER QUALIFICATIONS AND RETENTION STANDING, TO THE POSITION OF SECRETARY (STENOGRAPHY), GS-7, IN THE OFFICE OF THE SECRETARY, OCCUPIED AT THAT TIME BY A MRS. NANCY JOHNSTON, AN EMPLOYEE IN A LOWER RETENTION SUBGROUP THAN MRS. SMITH, AND MRS. SMITH HAD INDICATED THAT SHE WOULD ACCEPT REASSIGNMENT TO A GS-7 POSITION IN LIEU OF SEPARATION FROM THE SERVICE.'

AS A RESULT OF THE CORRECTIVE ACTION RECOMMENDED BY THE CIVIL SERVICE COMMISSION, THE DEPARTMENT OF COMMERCE ISSUED PERSONNEL ACTIONS ON SEPTEMBER 13, 1955, WHICH (1) CANCELED YOUR REDUCTION IN FORCE, (2) RESTORED YOU (RETROACTIVELY TO MARCH 2, 1953) TO THE POSITION OF SECRETARY (STENOGRAPHY) GS-7, $4,955, PER ANNUM IN THE OFFICE OF THE SECRETARY OF COMMERCE, AND (3) SEPARATED YOU EFFECTIVE JANUARY 10, 1954, TO ACCEPT YOUR APPOINTMENT (IN LIEU OF REINSTATEMENT) WITH THE FEDERAL TRADE COMMISSION.

IN THE ABOVE SETTLEMENT YOU RECEIVED CREDIT FOR COMPENSATION AT THE RATE OF $4,955 PER ANNUM FROM MARCH 2, 1953, TO JANUARY 10, 1954, IN ACCORDANCE WITH SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. FROM THE GROSS AMOUNT FOUND DUE THERE WERE DEDUCTED THE AMOUNTS--- INDICATED IN THE SETTLEMENT--- REPRESENTING (1) LUMP-SUM PAYMENT FOR LEAVE, (2) EARNINGS FROM OTHER EMPLOYMENT DURING THE PERIOD OF SEPARATION, (3) INCOME TAX AND F.I.C.A., AND (4) RETIREMENT DEDUCTIONS.

IN REQUESTING REVIEW YOU CALL TO OUR ATTENTION A LETTER DATED JUNE 23, 1953, ADDRESSED TO YOU BE DONALD R. HARVEY, CHIEF WASHINGTON RECRUITING BRANCH OF THE CIVIL SERVICE COMMISSION, STATING THAT YOU APPEAR TO BE QUALIFIED FOR AT LEAST ONE POSITION IN GRADE GS-9 OCCUPIED BY AN EMPLOYEE IN A LOWER RETENTION CATEGORY, AND THAT CORRECTIVE ACTION WAS BEING REQUESTED OF THE DEPARTMENT OF COMMERCE IN YOUR CASE. IN VIEW OF SUCH LETTER IT APPEARS TO BE YOUR BELIEF THAT THE COMPENSATION FOR THE PERIOD OF SEPARATION SHOULD HAVE BEEN COMPUTED UPON THE BASIS OF YOUR GRADE GS-9, $5,310 PER ANNUM SALARY, TAKING INTO CONSIDERATION THE WITHIN-GRADE PROMOTIONS WHICH WOULD HAVE ACCRUED. YOU ALSO APPEAR TO BELIEVE THAT YOU SHOULD HAVE BEEN ALLOWED TO KEEP THE LUMP-SUM LEAVE PAYMENT WHICH YOU RECEIVED UPON YOUR SEPARATION BY REDUCTION IN FORCE.

THERE APPEARS NOTHING IN THE RECORD TO INDICATE THAT THE CIVIL SERVICE COMMISSION ORDERED YOUR RESTORATION TO A GS-9 POSITION. RATHER, THE RECORD IS CLEAR THAT UPON A RECOMMENDATION BY THE CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW, YOU WERE CONSTRUCTIVELY RESTORED TO THE POSITION IN WHICH YOU SHOULD HAVE BEEN ASSIGNED INSTEAD OF BEING SEPARATED. ACCORDINGLY, THE COMPENSATION PAYABLE UNDER THE ABOVE ACT OF JUNE 10, 1948, WAS PROPERLY COMPUTED UPON THE BASIS OF YOUR COMPENSATION IN GRADE GS-7. SEE 32 COMP. GEN. 449. CONCERNING YOUR REFERENCE TO THE WITHIN-GRADE PROMOTIONS WHICH WOULD HAVE ACCRUED, YOU ARE ADVISED THAT OUR OFFICE HAS HELD THAT SUCH PROMOTIONS, HAVING AN EFFECTIVE DATE SUBSEQUENT TO THE EMPLOYEE'S REMOVAL, ARE NOT FOR CONSIDERATION IN THE COMPUTATION OF BACK PAY. 35 COMP. GEN. 241.

REGARDING YOUR BELIEF THAT YOU SHOULD HAVE BEEN ALLOWED TO KEEP THE LUMP- SUM PAYMENT FOR ANNUAL LEAVE, YOU ARE ADVISED THAT IN 28 COMP. GEN. 333, OUR OFFICE HELD, QUOTING FROM THE SYLLABUS---

"THE COMPENSATION PAYABLE UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, TO AN EMPLOYEE WHO WAS REINSTATED AFTER HAVING BEEN ERRONEOUSLY REMOVED DUE TO REDUCTION IN FORCE SHOULD BE COMPUTED OVER THE ENTIRE PERIOD DURING WHICH REMOVED AT THE RATE RECEIVED ON THE DATE OF REMOVAL, BUT THERE IS TO BE DEDUCTED THEREFROM THE LUMP SUM PAID FOR ACCUMULATED AND CURRENT ACCRUED LEAVE, INCLUDING THE AMOUNT OF TAX WITHHELD FROM SUCH LUMP-SUM PAYMENT, THE ANNUAL LEAVE REPRESENTED BY THE LUMP SUM BEING FOR RECREDITING TO THE EMPLOYEE'S LEAVE ACCOUNT.'

THIS DECISION IS SUPPORTED BY THE CASE OF SAMUEL P. LEVERETTE V. THE UNITED STATES, C.CLS. NO. 47-53, DECIDED MAY 1, 1956, IN WHICH THE COURT OF CLAIMS IN A LIKE SITUATION STATED:

"NOR WAS THE GENERAL ACCOUNTING OFFICER'S DEDUCTION OF THAT LUMP SUM PAYMENT IN ITS BACK-PAY SETTLEMENT WITH PLAINTIFF WRONGFUL. PLAINTIFF'S RECEIPT OF THAT PAYMENT IN LIEU OF ANNUAL LEAVE, AS REQUIRED BY 58 STAT. 845, ON HIS SEPARATION ON NOVEMBER 30, 1949, WAS ONE OF THE ATTRIBUTES OF HIS SEPARATION. WHEN THE CIVIL SERVICE COMMISSION FOUND THAT SEPARATION TO BE NULL AND VOID, AND PLAINTIFF WAS RESTORED PURSUANT TO SECTION 6 (B) (3) OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, 355, HIS RIGHT TO SUCH A PAYMENT NO LONGER EXISTED. THUS, THE DEFENDANT UPON RECREDITING PLAINTIFF IN THE AMOUNT OF LEAVE REPRESENTED BY THE PRIOR PAYMENT WAS ENTITLED TO RECOUP THE AMOUNT OF THAT PAYMENT.'

IN B-122137, MARCH 29, 1955, 34 COMP. GEN. 480, REFERRED TO IN YOUR LETTER OF SEPTEMBER 5, 1956, THE DEPARTMENT OF JUSTICE WAS ORDERED BY THE CIVIL SERVICE COMMISSION TO RESTORE THE EMPLOYEE TO A POSITION IN HIS FORMER GRADE, WHICH WAS HIGHER THAN THE GRADE OF THE POSITION IN WHICH HE WAS EMPLOYED IN ANOTHER AGENCY, WHEREAS IN YOUR CASE THE COMMISSION MERELY ORDERED YOU RESTORED TO A GRADE GS-7 POSITION TO WHICH YOU WERE APPOINTED IN THE FEDERAL TRADE COMMISSION.

IN THE CIRCUMSTANCES, OUR SETTLEMENT OF NOVEMBER 15, 1955, APPEARS TO HAVE BEEN CORRECT AND IT ..END :