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B-129528, NOV. 19, 1959

B-129528 Nov 19, 1959
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DURING WHICH HE WAS SUSPENDED FROM DUTY AS AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR. THE MATTER WAS THE SUBJECT OF OUR DECISION OF NOVEMBER 2. OSIPOVICH WAS SUSPENDED FROM DUTY WITHOUT PAY AS OF THE CLOSE OF BUSINESS OCTOBER 2. THE EMPLOYEE WAS GRANTED ANNUAL LEAVE WITH THE UNDERSTANDING THAT THE LEAVE WOULD BE RECREDITED TO HIM IN ACCORDANCE WITH 32 COMP GEN. 284. IF HE WERE REINSTATED. OSIPOVICH WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS THROUGH MARCH 19. ON THE LATER DATE HE SUBMITTED HIS APPLICATION FOR DISABILITY RETIREMENT WHICH WAS GRANTED EFFECTIVE APRIL 1. NOR WAS IT SO CLASSIFIED DURING ANY OF THE PERIOD FOR WHICH COMPENSATION IS CLAIMED. OSIPOVICH IS APPARENTLY BASING HIS CLAIM UPON THE HOLDING OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF VITARALLI V.

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B-129528, NOV. 19, 1959

TO THE SECRETARY OF THE INTERIOR:

ON OCTOBER 22, 1959, REFERENCE J-59-1039.1, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, TRANSMITTED TO OUR OFFICE A CLAIM FROM MR. ABRAHAM A. OSIPOVICH FOR COMPENSATION FOR THE PERIOD FROM OCTOBER 3, 1953, TO APRIL 1, 1954, DURING WHICH HE WAS SUSPENDED FROM DUTY AS AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR.

THE MATTER WAS THE SUBJECT OF OUR DECISION OF NOVEMBER 2, 1956, TO MR. J. E. PERRY, AUTHORIZED CERTIFYING OFFICER. THE RECORD SHOWS THAT MR. OSIPOVICH WAS SUSPENDED FROM DUTY WITHOUT PAY AS OF THE CLOSE OF BUSINESS OCTOBER 2, 1953, PURSUANT TO THE AUTHORITY VESTED IN THE SECRETARY OF THE INTERIOR BY EXECUTIVE ORDER NO. 10450, DATED APRIL 27, 1953 (18 F.R. 2489) AND THE ACT OF AUGUST 26, 1950. THE EMPLOYEE WAS GRANTED ANNUAL LEAVE WITH THE UNDERSTANDING THAT THE LEAVE WOULD BE RECREDITED TO HIM IN ACCORDANCE WITH 32 COMP GEN. 284, IF HE WERE REINSTATED. AFTER THE EXPIRATION OF HIS ANNUAL LEAVE THROUGH SEVEN HOURS OF MARCH 9, 1954, MR. OSIPOVICH WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS THROUGH MARCH 19, 1954. ON THE LATER DATE HE SUBMITTED HIS APPLICATION FOR DISABILITY RETIREMENT WHICH WAS GRANTED EFFECTIVE APRIL 1, 1954. THE 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.

MR. OSIPOVICH IS APPARENTLY BASING HIS CLAIM UPON THE HOLDING OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF VITARALLI V. SEATON, 359 U.S. 535, DECIDED JUNE 1, 1959. IN THAT CASE THE SUPREME COURT HELD THAT THE PLAINTIFF WHO WAS REMOVED FOR NATIONAL SECURITY REASONS PURPORTEDLY UNDER AUTHORITY OF THE ACT OF AUGUST 26, 1950, WAS ENTITLED TO BE REINSTATED TO THE POSITION FROM WHICH DISMISSED. THE VITARELLI CASE IS TO BE DISTINGUISHED FROM THE CASE HERE FOR CONSIDERATION BECAUSE IN THAT CASE THE PLAINTIFF WAS ORDERED RESTORED TO THE POSITION FROM WHICH DISMISSED. IN MR. OSIPOVICH'S CASE HE WAS NEITHER ORDERED TO HIS POSITION FROM WHICH HE WAS DISMISSED BY THE COURTS NOR BY ACTION F THE ADMINISTRATIVE OFFICE. UNTIL SUCH TIME AS MR. OSIPOVICH IS RESTORED, RETORACTIVELY TO OCTOBER 3, 1953, EITHER BY COURT ACTION OR BY ADMINISTRATIVE ACTION THERE IS NO AUTHORITY OF OUR OFFICE UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, TO AUTHORIZE PAYMENT FOR THE PERIOD OF SUSPENSION. THE FACT THAT MR. OSIPOVICH WAS REEMPLOYED IN ANOTHER POSITION APPROXIMATELY FIVE YEARS AFTER THE SUSPENSION TOOK PLACE WOULD BE A SEPARATE ACTION AND WOULD NOT BE CONSIDERED A RESTORATION WITHIN THE PURVIEW OF THE 1950 ACT.

CONCERNING MR. OSIPOVICH'S REQUEST THAT HIS PERSONNEL RECORDS BE CORRECTED, THIS IS A MATTER OVER WHICH OUR OFFICE HAS NO JURISDICTION AND WOULD BE FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION.

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