B-109864, JUL 21, 1952

PRECIS-UNAVAILABLE

LEWIS C. PARRY:

YOUR AFFIDAVIT DATED APRIL 29, 1952, MAKING CLAIM FOR WAGES DUE, WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF MARCH 28, 1952, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN COMPENSATION PAID YOU AT THE PHILADELPHIA NAVAL BASE DURING PERIOD OF DEMOTION FROM SEPTEMBER 9, 1946 TO MAY 19, 1947, AS AN ELECTRICIAN, AND THE COMPENSATION ALLEGED TO BE DUE UNDER THE RATING OF LEADINGMAN ELECTRICIAN FROM WHICH YOU WERE DEMOTED.

THE RECORD SHOWS THAT YOU WERE RESTORED BY THE DEPARTMENT OF THE NAVY ON THE LATTER DATE TO THE HIGHER RATING AS A RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION BY A NUMBER OF PREFERENCE-ELIGIBLE EMPLOYEES SIMILARLY AFFECTED, IN CONNECTION WITH WHICH IT WAS HELD BY THE COMMISSION THAT CERTAIN PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, HAD NOT BEEN COMPLIED WITH IN EFFECTING DEMOTIONS INCIDENT TO A READJUSTMENT OF THE NUMBER OF SUPERVISORS NECESSITATED BY THE REDUCTION OF ACTIVITIES AT THE SHIPYARD. THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM WAS FOR THE REASON THAT THE DECISIONS OF THIS OFFICE HAVE HELD THAT A RESTORATION FOLLOWING AN APPEAL UNDER THE ABOVE REFERRED-TO SECTION 14 IS EFFECTIVE ONLY FROM THE DATE OF RESTORATION AND CANNOT BE CONSIDERED AS AUTHORITY FOR RETROACTIVE PAY. COMP. GEN. 620.

WHILE NOT SO STATED IT APPEARS THAT YOUR PRESENT CLAIM IS PREDICATED UPON CERTAIN JUDGMENTS ENTERED BY THE UNITED STATES COURT OF CLAIMS IN CASES SIMILAR TO YOURS. FOR EXAMPLE, IN THE CASE OF HENRY J. BLAKE, ET AL. V. UNITED STATES, 119 C. CLS. 842, THE COURT OF CLAIMS, CITING STRINGER V. UNITED STATES, 117 C. CLS. 30, ENTERED JUDGMENT FOR SEVERAL PLAINTIFFS IN CIRCUMSTANCES SIMILAR TO YOURS. THE JUDGMENT WAS BASED UPON A STIPULATION OF THE PARTIES AND WAS NOT ACCOMPANIED BY AN OPINION OF THE COURT DISCUSSING THE LEGAL ISSUES OF THE CASE.

THE STRINGER CASE CITED IS NOT ON ALL FOURS WITH THE CLAIM HERE IN QUESTION. IN THE FIRST PLACE, THAT CASE INVOLVED A PER ANNUM EMPLOYEE WHEREAS YOUR EMPLOYMENT CALLED FOR PAYMENT UPON AN HOURLY BASIS. THERE IS A MARKED DISTINCTION BETWEEN THE COMPENSATION STATUS OF PER ANNUM EMPLOYEES AND PER HOUR OR PER DIEM EMPLOYEES. FOR EXAMPLE, THE FORMER ARE CONSIDERED AS ENTITLED BY REASON OF THEIR BASIS OF COMPENSATION TO RECEIVE PAY FOR HOLIDAYS ON WHICH NO SERVICES ARE RENDERED, WHILE THE LATTER ARE ENTITLED TO HOLIDAY PAY ONLY BECAUSE OF SPECIFIC LEGISLATION (ACT OF JUNE 29, 1938, 52 STAT. 1246). IN THE SECOND PLACE, THE STRINGER CASE INVOLVED A REALLOCATION TO A LOWER GRADE OF THE POSITION OCCUPIED BY THE PLAINTIFF. THE DUTIES OF THE POSITION REMAINED THE SAME AND THE PLAINTIFF CONTINUED TO PERFORM THOSE DUTIES DURING THE PERIOD COVERED BY THE SUIT. ON THE OTHER HAND, THE SHIPYARD EMPLOYEES HERE BEING CONSIDERED WERE REASSIGNED TO DIFFERENT RATINGS WITH DIFFERENT DUTIES. CONSEQUENTLY, SO FAR AS THE JUDGMENT IN THE BLAKE CASE (WHICH IS SIMILAR TO YOURS) IS BASED UPON THE STRINGER CASE, IT HAS LITTLE OR NO PRECEDENT VALUE.

IT SHOULD BE POINTED OUT THAT WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN CONNECTION WITH MATTERS COMING BEFORE THIS OFFICE, SUCH DECISIONS ARE NOT BINDING UPON THE OFFICE. 14 COMP. GEN. 648; 31 ID. 73. ALSO, THERE IS AN IMPORTANT DISTINCTION BETWEEN SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE AND JUDGMENTS OF THE COURT OF CLAIMS, IN THAT THE FORMER MUST BE BASED UPON THE EXISTENCE OF AN APPROPRIATION WHICH MAY BE CONSIDERED AS HAVING BEEN OBLIGATED BY THE CIRCUMSTANCES GIVING RISE TO THE CLAIM, WHEREAS THE LATTER, BEING PAYABLE FROM APPROPRIATIONS LATER MADE SPECIFICALLY FOR THEIR PAYMENT, ARE RENDERED WITHOUT REGARD TO WHETHER THERE IS AN AVAILABLE APPROPRIATION FROM WHICH THE CLAIM MIGHT HAVE BEEN PAID ADMINISTRATIVELY OR BY SETTLEMENT OF THE ACCOUNTING OFFICERS. CF. GIBNEY V. UNITED STATES, 114 C. CLS. 38; 31 COMP. GEN. 73, SUPRA. HENCE, IT CAN BE SEEN THAT THE GENERAL ACCOUNTING OFFICE, IN THE SETTLEMENT OF CLAIMS, MUST NOT ONLY LOOK TO THE LEGAL MERITS OF THE CLAIM BUT MUST PROCEED ONE STEP FARTHER, NAMELY, TO DETERMINE WHETHER AN APPROPRIATION IS AVAILABLE FOR ITS PAYMENT.

SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE AND FOR NO OTHERS. COMPELLED BY THAT INTERDICTION ARE THE RULES LONG FOLLOWED BY THE ACCOUNTING OFFICERS THAT, IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR, APPROPRIATIONS FOR THE SALARIES AND WAGES OF GOVERNMENT EMPLOYEES ARE NOT AVAILABLE FOR THE COMPENSATION OF EMPLOYEES DURING PERIODS OF SUSPENSION, FURLOUGH WITHOUT PAY, OR SEPARATION WHEN NO DUTY IS PERFORMED, EXCEPT TO THE EXTENT THAT ANNUAL LEAVE MAY BE SUBSTITUTED IN THE CASE OF UNJUSTIFIED SUSPENSION, OR, IN THE CASE OF DEMOTIONS, FOR THE PAYMENT OF COMPENSATION TO AN EMPLOYEE AT A RATE ABOVE THAT APPLICABLE TO THE GRADE OR RATING IN WHICH HE ACTUALLY SERVES PURSUANT TO APPOINTMENT OR EMPLOYMENT BY COMPETENT AUTHORITY. THE AUTHORITY FOR THE EMPLOYMENT OF PERSONNEL IN THE FIELD SERVICE OF THE DEPARTMENT OF THE NAVY IS VESTED BY SECTION 169, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 26, 1930, 46 STAT. 817, IN THE SECRETARY OF THE NAVY OR A SUBORDINATE TO WHOM THE AUTHORITY MAY BE DELEGATED BY THE SECRETARY, AND THE RATES OF PAY FOR THE VARIOUS RATINGS OF EMPLOYEES AT NAVY YARDS ARE DETERMINED BY THE COMMANDANTS, SUBJECT TO THE APPROVAL AND REVISION OF THE SECRETARY OF THE NAVY, UNDER THE AUTHORITY OF THE ACT OF JULY 16, 1862, 12 STAT. 587. THEREFORE, UNDER THE GENERAL RULE JUST STATED, AND EXCEPT AS OTHERWISE MAY BE REQUIRED BY LAW, THE APPROPRIATION FOR COMPENSATION OF PERSONNEL AT NAVY YARDS DURING THE PERIOD HERE INVOLVED MAY NOT BE CONSIDERED AS AVAILABLE FOR THE PAYMENT OF SALARY OR WAGES TO ANY EMPLOYEE AT A RATE ABOVE THAT PRESCRIBED FOR THE GRADE OR RATING OF THE POSITION TO WHICH HE IS APPOINTED UNDER THE STATUTORY AUTHORITY CITED AND IN WHICH HE ACTUALLY SERVES.

SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, SUPRA, GIVES SPECIAL PREFERENCE TO VETERANS IN THE WAY OF PRIOR NOTICE IN CONNECTION WITH THEIR DISCHARGE, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH WITHOUT PAY, REDUCTION IN RANK OR COMPENSATION, OR DEBARMENT FOR FUTURE APPOINTMENT. ALSO, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 723, IT GRANTS TO SUCH PREFERENCE ELIGIBLES CERTAIN RIGHTS OF APPEAL TO THE CIVIL SERVICE COMMISSION FROM ADVERSE ADMINISTRATIVE ACTIONS AND PROVIDES FOR MANDATORY COMPLIANCE WITH CORRECTIVE ACTION RECOMMENDED BY THE COMMISSION. HOWEVER, THE STATUTE CONTAINS NO PROVISION, EXPRESS OR IMPLIED, WHICH WOULD SERVE TO OBLIGATE THE SALARY APPROPRIATION FOR THE COMPENSATION LOST BY AN EMPLOYEE WHO IS DISCHARGED, SUSPENDED, FURLOUGHED, OR REDUCED IN RANK OR COMPENSATION AND WHO THEREAFTER, AS A CONSEQUENCE OF APPEAL, IS REINSTATED OR RESTORED TO HIS FORMER POSITION, RANK, OR RATE OF COMPENSATION. COMP. GEN. 620, SUPRA; 28 ID. 489.

THE ACT OF JUNE 10, 1948, 62 STAT. 354, HAS PROVIDED FOR MONETARY RELIEF IN CERTAIN OF THE SITUATIONS COVERED BY SAID SECTION 14, NAMELY, THOSE IN WHICH THERE IS A REINSTATEMENT OR RESTORATION TO DUTY UPON THE GROUND THAT A DISCHARGE, SUSPENSION, OR FURLOUGH WITHOUT PAY WAS UNJUSTIFIED OR UNWARRANTED. THAT ACT IS NOT RETROACTIVELY EFFECTIVE (28 COMP. GEN. 200); HOWEVER, ITS PROVISIONS SERVE AS A YARDSTICK AGAINST WHICH CONGRESSIONAL INTENT RELATIVE TO "BACK PAY" IN SECTION 14 CASES MAY BE MEASURED. SPECIAL NOTE IN THAT CONNECTION AND IN PARTICULAR REFERENCE TO CLAIMS SUCH AS YOURS IS THE FACT THAT THE "BACK PAY" PROVISIONS OF THAT ACT WITH RESPECT TO SECTION 14 CASES MAKES NO REFERENCE TO REDUCTION IN RANK OR COMPENSATION. ALSO, THE 1948 ACT HAS NOT AUTHORIZED "BACK PAY" IN THE CASE OF PROCEDURAL ERROR BUT ONLY WHEN THE REMOVAL OR OTHER ADVERSE ACTION WAS UNWARRANTED OR UNJUSTIFIED UPON THE MERITS. 29 COMP. GEN. 209. EVEN IF THE CONSTRUCTION BY THIS OFFICE OF THE LAWS IN EFFECT PRIOR TO THE 1948 ACT HAD BEEN DIFFERENT, LEGISLATIVE INTENT REVEALED BY SAID ACT.

I HAVE CAREFULLY REEXAMINED THE POSITION TAKEN IN THE SETTLEMENTS OF THIS OFFICE DISALLOWING "BACK PAY" CLAIMS OF NAVAL SHIPYARD EMPLOYEES BASED UPON FACTS IDENTICAL WITH, OR SIMILAR TO, THOSE APPLICABLE TO YOUR CLAIM, BUT I AM CONSTRAINED TO HOLD THAT THE SETTLEMENT ACTION WAS CORRECT AND MUST BE SUSTAINED.