B-130148, FEBRUARY 24, 1961, 40 COMP. GEN. 479

B-130148, FEBRUARY 24, 1961, 40 COMP. GEN. 479

CIVILIAN PERSONNEL - OVERSEAS EMPLOYEES - BACK PAY UPON RESTORATION TO DUTY - FOREIGN POST DIFFERENTIAL A FOREIGN POST DIFFERENTIAL RECEIVED BY AN OVERSEAS EMPLOYEE AT THE TIME OF AN UNWARRANTED OR UNJUSTIFIED REMOVAL FROM THE SERVICE BEING ESSENTIALLY OF THE SAME CHARACTER AND BASED ON THE SAME AUTHORITY AS THE TERRITORIAL POST DIFFERENTIAL WHICH WAS HELD IN VITARELLI V. UNITED STATES, CT.1CL. NO. 283-59, DECIDED JUNE 8, 1960, TO BE PROPERLY FOR INCLUSION IN A BACK PAY AWARD UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, IS FOR INCLUSION IN A BACK PAY AWARD UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (3). 36 COMP. GEN. 560 AND B-130148, JANUARY 31, 1958, OVERRULED. UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, WHICH ESTABLISHES THE MEASURE OF BACK PAY AS "COMPENSATION AT THE RATE RECEIVED ON THE DATE OF REMOVAL * * * FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED * * * LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING PERIOD * * *," ALLOWANCE FOR HOTEL, RESTAURANT, TRAVEL, AND OTHER EXPENSES INCURRED IN CONNECTION WITH THE SUCCESSFUL APPEAL OF A SEPARATION BEFORE THE CIVIL SERVICE COMMISSION, AS WELL AS THE EXCESS COST OF LIVING AT THE PLACE OF INTERIM EMPLOYMENT OVER WHAT THE COST WOULD HAVE BEEN AT THE FORMER EMPLOYMENT PLACE, IS NEITHER EXPRESSLY NOR IMPLIEDLY AUTHORIZED TO BE CONSIDERED EITHER AS CREDITS TO COMPENSATION OR AS DEBITS AGAINST EARNINGS FROM OTHER EMPLOYMENT. WITH RESPECT TO WHETHER EMPLOYEES ERRONEOUSLY SEPARATED FROM THE SERVICE HAVE A DUTY TO MITIGATE DAMAGES, THE COURT OF CLAIMS IN SCHWARTZ V. UNITED STATES, CT.1CL. NO. 513-57, DECIDED MARCH 2, 1960, INDICATED THAT BOTH THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, AND THE ACT OF AUGUST 24, 1912, AS AMENDED, CONTEMPLATES THAT A PERSON CLAIMING BACK PAY FOR A PERIOD OF REMOVAL WAS UNDER AN OBLIGATION TO MAKE A REASONABLE EFFORT MIGHT HAVE BEEN EARNED, BE DEDUCTED FROM THE TOTAL AMOUNT OF COMPENSATION OTHERWISE PAYABLE UNDER THE BACK PAY STATUTES.

TO CHARLES J. SMITH, FEBRUARY 24, 1961:

WE REFER TO YOUR LETTERS OF DECEMBER 21, 1960, AND JANUARY 25, 1961, REQUESTING, AMONG OTHER THINGS, FURTHER CONSIDERATION OF YOUR CLAIM FOR THE INCLUSION OF A FOREIGN POST DIFFERENTIAL AS PART OF BACK PAY IN CONNECTION WITH A PERIOD OF SEPARATION FROM SERVICE.

OUR RECORDS SHOW THAT YOU WERE SEPARATED IN A REDUCTION IN FORCE ON DECEMBER 21, 1955, FROM A POSITION WITH THE DEPARTMENT OF THE ARMY ON OKINAWA, AND THAT, AS A CONSEQUENCE OF YOUR APPEAL TO THE CIVIL SERVICE COMMISSION, YOU WERE RESTORED TO DUTY ON MAY 2, 1956. YOU WERE ADMINISTRATIVELY PAID THE BASIC COMPENSATION OF YOUR POSITION FOR THE PERIOD OF SEPARATION BUT NOT THE FOREIGN POST DIFFERENTIAL WHICH YOU WERE RECEIVING AT THE TIME OF SEPARATION, AND THE QUESTION OF/YOUR ENTITLEMENT TO THAT ITEM WAS SUBMITTED HERE BY A DISBURSING OFFICER FOR OUR DECISION. IN LINE WITH THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN KALV V. UNITED STATES, 128 CT.1CL. 207, WE HELD IN OUR DECISION OF FEBRUARY 1, 1957, PUBLISHED AT 36 COMP. GEN. 560, THAT THE DIFFERENTIAL, WHICH IS PAYABLE UNDER EXECUTIVE ORDER NO. 10000, DATED SEPTEMBER 16, 1948, AT PLACES OF EMPLOYMENT OVERSEAS INVOLVING EXTRAORDINARILY DIFFICULT LIVING CONDITIONS, EXCESSIVE PHYSICAL HARDSHIP, OR NOTABLY UNHEALTHY CONDITIONS, WAS NOT PROPERLY PAYABLE FOR THE PERIOD OF SEPARATION BECAUSE YOU WERE NOT PRESENT AT THE OVERSEAS POST DURING SUCH PERIOD. WE SUSTAINED THAT DECISION IN OUR DECISION B 130148 OF JANUARY 31, 1958, TO

YOU.

IN CONNECTION WITH A SUIT INVOLVING THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, A MAJORITY OF THE COURT OF CLAIMS HELD IN VITARELLI V. UNITED STATES, CT.1CL. NO. 283-59, DECIDED JUNE 8, 1960, REFERRED TO IN YOUR LETTER, THAT THE TERRITORIAL POST DIFFERENTIAL AUTHORIZED BY THE EXECUTIVE ORDER CITED ABOVE SHOULD BE INCLUDED IN THE AMOUNT OF COMPENSATION PLAINTIFF "WOULD NORMALLY HAVE EARNED * * * AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION * * *" (QUOTING FROM THE 1950 STATUTE).

THE FOREIGN POST DIFFERENTIAL IS ESSENTIALLY OF THE SAME CHARACTER AND STEMS FROM THE SAME AUTHORITY AS THE TERRITORIAL POST DIFFERENTIAL CONSIDERED IN THE VITARELLI CASE; AND, FURTHERMORE, THE MEASURE OF BACK PAY UNDER THE 1950 STATUTE AND UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (3), APPLICABLE IN YOUR CASE, IS ESSENTIALLY THE SAME. CONSEQUENTLY IN LIGHT OF THE VITARELLI CASE, WE NOW HOLD THAT THE FOREIGN POST DIFFERENTIAL PROPERLY IS FOR INCLUSION IN YOUR BACK PAY AND OUR DECISION IN 36 COMP. GEN. 560, AS AFFIRMED IN DECISION OF JANUARY 31, 1958, IS REVERSED. APPROPRIATE ACTION WILL BE TAKEN BY OUR CLAIMS DIVISION TO PROCESS THE CLAIM FOR PAYMENT AFTER SUCH FURTHER DEVELOPMENT AS MAY BE NECESSARY.

YOU ALSO REQUEST ALLOWANCE OF CERTAIN COLLATERAL ITEMS DISCUSSED IN YOUR LETTER OF DECEMBER 6, 1957, TO US, NAMELY, HOTEL, RESTAURANT, TRAVELING, AND OTHER EXPENSES INCURRED IN CONNECTION WITH THE APPEAL OF YOUR SEPARATION BEFORE THE CIVIL SERVICE COMMISSION, AND THE EXCESS OF THE COST OF LIVING AT THE PLACE OF INTERIM EMPLOYMENT (1GUAM) OVER WHAT THE COST WOULD HAVE BEEN ON OKINAWA. SECTION 6 (B) (3) OF THE 1912 ACT, AS AMENDED, SUPRA, ESTABLISHES THE MEASURE OF BACK PAY AS ,COMPENSATION AT THE RATE RECEIVED ON THE DATE OF REMOVAL * * * FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED * * * LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD * * *.' THOSE PROVISIONS NEITHER EXPRESSLY NOR IMPLIEDLY AUTHORIZED CONSIDERATION OF THE COLLATERAL ITEMS MENTIONED, EITHER AS CREDITS TO COMPENSATION OR AS DEBITS AGAINST EARNINGS FROM OTHER EMPLOYMENT. CONSEQUENTLY, EVEN IF ESTABLISHED BY DOCUMENTATION, NO BASIS EXISTS FOR THE ALLOWANCE OF THOSE ITEMS.

CONCERNING THE ASSERTION IN YOUR LETTER OF DECEMBER 6, 1957, THAT YOU WERE UNDER NO DUTY TO SEEK OTHER EMPLOYMENT IN ORDER TO MITIGATE THE DAMAGES OCCASIONED BY YOUR ERRONEOUS SEPARATION, WE DIRECT YOUR ATTENTION TO SCHWARTZ V. UNITED STATES, CT.1CL. NO. 513-57, DECIDED MARCH 2, 1960, IN WHICH THE CHIEF JUDGE, SPEAKING FOR A MAJORITY OF THE COURT OF CLAIMS, INDICATED THAT BOTH THE ACT OF AUGUST 26, 1950, SUPRA, AND THE LLOYD- LAFOLLETTE ACT (ACT OF AUGUST 24, 1912, AS AMENDED SUPRA), CONTEMPLATED THAT ONE CLAIMING BACK PAY FOR A PERIOD OF REMOVAL WAS UNDER OBLIGATION TO MAKE A REASONABLE EFFORT TO SECURE OTHER EMPLOYMENT, AND THAT THE AMOUNT THE CLAIMANT EARNED, OR WITH REASONABLE EFFORT MIGHT HAVE EARNED, BE DEDUCTED FROM THE TOTAL AMOUNT OF COMPENSATION THAT WOULD OTHERWISE BE PAID UNDER THE BACK PAY STATUTES.