B-158925, JUL. 16, 1968

B-158925: Jul 16, 1968

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IN THE CONCLUDING PARAGRAPH OF OUR CITED DECISION WE POINTED OUT THAT WE WERE AWARE OF NO STATUTE VESTING IN A FORMER EMPLOYEE A RIGHT TO COMPENSATION STEMMING FROM THE REFUSAL OF AN AGENCY TO REEMPLOY HIM UNDER 5 U.S.C. 3551 WHICH DERIVES FROM THE ACT OF MAY 12. IN YOUR LETTER YOU SUGGEST THAT REFUSAL TO REEMPLOY AN INDIVIDUAL WHO HAS A STATUTORY RIGHT TO REEMPLOYMENT IS AN "ACTION" BY THE OFFICIAL CONCERNED WHICH RESULTS IN THE WITHDRAWAL OF PAY THE INDIVIDUAL WOULD OTHERWISE RECEIVE. THAT WHEN THE AGENCY FINDS THE REFUSAL TO HAVE BEEN ERRONEOUS AND REEMPLOYS HIM HE SHOULD BE ENTITLED TO THE BENEFITS OF THE BACK PAY ACT OF 1966. OUR OPINION IS THAT BACK PAY WOULD BE ALLOWABLE. 1967) THE EMPLOYEE CONCERNED WAS SEPARATED FROM THE CIVIL AERONAUTICS AUTHORITY (CAA) ON MAY 18.

B-158925, JUL. 16, 1968

TO MR. MACY:

WE REFER TO YOUR LETTER OF MAY 28, 1968, CONCERNING OUR DECISION OF AUGUST 18, 1967, B-158925, RELATIVE TO THE RIGHTS OF A RESERVIST TO REEMPLOYMENT IN HIS FORMER CIVILIAN AGENCY OF THE GOVERNMENT UNDER 5 U.S.C. 3551 UPON HIS RELEASE FROM ACTIVE MILITARY DUTY.

IN THE CONCLUDING PARAGRAPH OF OUR CITED DECISION WE POINTED OUT THAT WE WERE AWARE OF NO STATUTE VESTING IN A FORMER EMPLOYEE A RIGHT TO COMPENSATION STEMMING FROM THE REFUSAL OF AN AGENCY TO REEMPLOY HIM UNDER 5 U.S.C. 3551 WHICH DERIVES FROM THE ACT OF MAY 12, 1917, 40 STAT. 40, 72 (2D PROVISO ON THE LATTER PAGE). ALSO, WE COMMENTED UPON THE APPARENT LACK OF JUDICIAL PRECEDENTS REGARDING THAT ASPECT OF THE STATUTORY PROVISION WHICH HAS BEEN ON THE BOOKS FOR MORE THAN 50 YEARS.

IN YOUR LETTER YOU SUGGEST THAT REFUSAL TO REEMPLOY AN INDIVIDUAL WHO HAS A STATUTORY RIGHT TO REEMPLOYMENT IS AN "ACTION" BY THE OFFICIAL CONCERNED WHICH RESULTS IN THE WITHDRAWAL OF PAY THE INDIVIDUAL WOULD OTHERWISE RECEIVE, AND THAT WHEN THE AGENCY FINDS THE REFUSAL TO HAVE BEEN ERRONEOUS AND REEMPLOYS HIM HE SHOULD BE ENTITLED TO THE BENEFITS OF THE BACK PAY ACT OF 1966, NOW 5 U.S.C. 5596, AND THE COMMISSION'S REGULATIONS THEREUNDER.

AS A GENERAL PROPOSITION WE CONCUR IN THE VIEWS EXPRESSED IN THE PRECEDING PARAGRAPH; THEREFORE, IN AN OTHERWISE PROPER CASE, OUR OPINION IS THAT BACK PAY WOULD BE ALLOWABLE.

IN THE CASE TO WHICH YOUR LETTER REFERS (B-158925 OF AUGUST 18, 1967) THE EMPLOYEE CONCERNED WAS SEPARATED FROM THE CIVIL AERONAUTICS AUTHORITY (CAA) ON MAY 18, 1951, TO ENTER ON ACTIVE MILITARY DUTY AS A RESERVE OFFICER IN WHICH HE REMAINED UNTIL DECEMBER 31, 1963, WHEN HE WAS RETIRED FOR LENGTH OF SERVICE. HE PROMPTLY APPLIED FOR REEMPLOYMENT WITH THE FEDERAL AVIATION ADMINISTRATION, SUCCESSOR TO THE CAA, BUT WAS ADVISED THAT HE HAD FORFEITED HIS RESTORATION RIGHTS BY REMAINING ON ACTIVE DUTY BEYOND MAY 18, 1955. WE WERE INFORMED BY THE ADMINISTRATION THAT ALTHOUGH THE REQUEST FOR RESTORATION AND THE DENIAL THEREOF DID NOT SPECIFY THE STATUTORY AUTHORITY INVOLVED IT IS CLEAR THAT THE REQUEST AND DENIAL WERE PROCESSED PURSUANT TO THE 4 YEAR LIMITATION CONTAINED IN SECTION 9 (G) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 50 U.S.C. APP. 459.

IN JUNE 1966 THE EMPLOYEE, REFERRING TO OUR DECISION OF APRIL 27, 1966, B -158925, REQUESTED RESTORATION PURSUANT TO 5 U.S.C. 30R (B), NOW 5 U.S.C. 3551.

AT THE TIME OF OUR LETTER OF AUGUST 18, 1967, TO THE FEDERAL AVIATION ADMINISTRATION WE UNDERSTOOD THAT THE EMPLOYEE HAD NOT BEEN RESTORED AND CONSEQUENTLY ANY QUESTION CONCERNING HIS POSSIBLE ENTITLEMENT TO THE BENEFITS OF THE BACK PAY ACT OF 1966, NOW 5 U.S.C. 5596, WAS NOT BEFORE US FOR CONSIDERATION.

HOWEVER, TO REDUCE SUCH CASES TO A MINIMUM WE SOLICIT THE COOPERATION OF THE UNITED STATES CIVIL SERVICE COMMISSION IN SUPPORT OF LEGISLATION ASSIMILATING THE REEMPLOYMENT RIGHTS GRANTED BY 5 U.S.C. 3551 AND BY SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT. IN THAT REGARD WE INVITE YOUR ATTENTION TO H.R. 1093, 90TH CONGRESS, WHICH WOULD FURTHER RELAX THE LIMITATION NOW CONTAINED IN SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT.

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  • Silver Investments, Inc.
    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
    B-419028

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