B-121522, MARCH 29, 1955, 34 COMP. GEN. 478

B-121522, MARCH 29, 1955, 34 COMP. GEN. 478

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION AN EMPLOYEE WHO, PRIOR TO ACTUAL SEPARATION BY REDUCTION IN FORCE, MADE ORAL INQUIRY AT THE PERSONNEL OFFICE OF THE EMPLOYING AGENCY CONCERNING THE PROPRIETY OF HIS SEPARATION MAY BE REGARDED AS HAVING MADE "AN APPEAL TO PROPER AUTHORITY" WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AND IS ENTITLED TO BACK PAY FOR THE PERIOD DURING WHICH HE RECEIVED NO COMPENSATION BASED UPON THE ADMINISTRATIVE FINDING THAT THE SEPARATION WAS UNJUSTIFIED AND UNWARRANTED. SINCE EMPLOYEES OF THE COURT OF CLAIMS ARE NOT SUBJECT TO THE ANNUAL LEAVE ACT OF 1951 OR THE LUMP-SUM LEAVE ACT OF 1944, A CLASSIFIED EMPLOYEE WHO RECEIVED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE UPON BEING SEPARATED BY REDUCTION IN FORCE AND WHO, PRIOR TO THE ADMINISTRATIVE ACTION WHICH RESTORED HIM TO DUTY RETROACTIVELY, WAS REEMPLOYED BY THE COURT OF CLAIMS IS NOT REQUIRED TO REFUND ANY PORTION OF THE LUMP-SUM LEAVE PAYMENT MADE TO HIM.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, MARCH 29, 1955:

YOUR LETTER OF SEPTEMBER 20, 1954, REQUESTS OUR DECISION UPON SEVERAL QUESTIONS ARISING FROM THE FACTS STATED IN YOUR LETTER, AS FOLLOWS:

WARREN S. GILLIAM, LABORER, CPC-3, WAS SEPARATED FROM THE PUBLIC HOUSING ADMINISTRATION BY REDUCTION IN FORCE, EFFECTIVE CLOSE OF BUSINESS NOVEMBER 30, 1953. HE WAS GIVEN A LUMP-SUM PAYMENT FOR 645 HOURS OF ACCRUED ANNUAL LEAVE WHICH WOULD HAVE CARRIED HIM IN A PAY STATUS THROUGH 5 HOURS ON MARCH 26, 1954. HE DID NOT FORMALLY APPEAL THE REDUCTION IN FORCE ACTION, BUT PRIOR TO HIS ACTUAL SEPARATION HE MADE ORAL INQUIRY OF THE PHA PERSONNEL BRANCH CONCERNING THE PROPRIETY OF THE REDUCTION IN FORCE NOTICE.

BASED ON PREVIOUS ADVICE FROM THE CIVIL SERVICE COMMISSION THE PHA HAD ASSUMED THAT MR. GILLIAM DID NOT HAVE COMPETITIVE STATUS. HOWEVER, AS A RESULT OF HIS INJURY, THE PHA REQUESTED THE CIVIL SERVICE COMMISSION TO REVIEW HIS STATUS AGAIN AND THIS TIME THE PHA WAS ADVISED THAT MR. GILLIAM DID HAVE COMPETITIVE STATUS. IN ORDER TO INDICATE THIS STATUS, THE PHA ISSUED A PERSONNEL ACTION DATED JANUARY 6, 1954, UNDER THE AUTHORITY OF " TEMP. CS REG. 9 SEC. 4," INDICATING THAT MR. GILLIAM WAS " CONVERTED TO REINSTATEMENT ( RETROACTIVE)," EFFECTIVE MARCH 31, 1946. THE PHA THEN DETERMINED THAT BECAUSE OF HIS COMPETITIVE STATUS MR. GILLIAM'S SEPARATION IN THE REDUCTION IN FORCE HAD BEEN IMPROPER AND THAT HE SHOULD BE RESTORED TO HIS POSITION.

ACCORDINGLY, BY PERSONNEL ACTION DATED JANUARY 11, 1954, MR. GILLIAM WAS RESTORED EFFECTIVE AS OF DECEMBER 1, 1953. THE ACTION, ON STANDARD FORM 50 ENTITLED " NOTIFICATION OF PERSONNEL TION," WAS TERMED " RESTORATION FROM REDUCTION-1IN-1FORCE" AND ALSO CONTAINED THE FOLLOWING STATEMENTS AMONG THE " REMARKS: " " RESTORATION FROM REDUCTION-1IN-1FORCE, 11-30-53. THIS ACTION CORRECTS ALL PREVIOUS ACTIONS SUBSEQUENT TO 3-31-46 TO SHOW COMPETITIVE STATUS. PL 623, 10 48.' THE AUTHORITY CITED FOR THIS ACTION WAS " CS REG. 20.5.'

BY ANOTHER PERSONNEL ACTION OF THE SAME DATE, MR. GILLIAM WAS SEPARATED, EFFECTED AT THE CLOSE OF BUSINESS JANUARY 7, 1954, TO ACCEPT A POSITION WITH THE UNITED STATES COURT OF CLAIMS. HIS APPOINTMENT WITH THE COURT OF CLAIMS WAS EFFECTIVE JANUARY 8, 1954, AND HIS POSITION WAS DESIGNATED " FIREMAN, CPC-4, $2830.' MR. GILLIAM NEVER ACTUALLY RETURNED TO DUTY WITH THE PHA AFTER HIS REDUCTION IN FORCE SEPARATION.

THE PHA MADE A DEMAND UPON MR. GILLIAM FOR A REFUND IN THE SUM OF $665.95, REPRESENTING THE DIFFERENCE BETWEEN THE LUMP-SUM LEAVE PAYMENT AND THE COMPENSATION THAT WOULD BE PAYABLE FOR THE PERIOD OF DECEMBER 1, 1953 THROUGH JANUARY 7, 1954. HE WAS ADVISED THAT UPON RECEIPT OF HIS REFUND, THE PHA WOULD CREDIT HIS ANNUAL LEAVE ACCOUNT AND SEND A TRANSCRIPT OF HIS ANNUAL AND SICK LEAVE TO THE UNITED STATES COURT OF CLAIMS.

MR. GILLIAM HAS NOT IN FACT REFUNDED ANY MONEY TO THE PHA TO DATE, AND THE PHA HAS BEEN INFORMALLY ADVISED BY THE COURT OF CLAIMS THAT IT IS NOT UNDER ANY LEAVE SYSTEM AND WILL NOT HONOR ANY TRANSFER OF LEAVE.

BASED UPON THE STATED FACTS, YOU PRESENT THE FOLLOWING QUESTIONS FOR DECISION---

1. IS MR. GILLIAM ENTITLED TO THE BENEFITS OF THE "BACK PAY" PROVISIONS OF SECTIONS 6 (B) (3) OF THE ACT OF JUNE 10, 1948 ( PUBLIC LAW 623, 80TH CONGRESS; 5 U.S.C. SEC. 652/? THE ANSWER TO THIS QUESTION WOULD SEEM TO DEPEND UPON (A) WHETHER THERE WAS "AN APPEAL TO PROPER AUTHORITY" AND (B) WHETHER, AND ON WHAT DATE, MR. GILLIAM WAS "REINSTATED OR RESTORED TO DUTY," WITHIN THE MEANING OF THAT ACT.

2. IS IT THE DUTY OF THE PHA TO REQUIRE A REFUND FROM MR. GILLIAM OF ALL OR ANY PART OF THE LUMP-SUM PAYMENT MADE TO HIM COVERING ACCRUED ANNUAL LEAVE?

3. IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, AND MR. GILLIAM MAKES AN APPROPRIATE REFUND OF THE LUMP-SUM PAYMENT, WHAT ACTION IS THE PHA REQUIRED TO TAKE WITH RESPECT TO THE ANNUAL LEAVE REPRESENTED BY SUCH REFUND? (E.G., SHOULD THIS LEAVE BE CERTIFIED TO THE COURT OF CLAIMS? SHOULD IT BE HELD IN ABEYANCE IN ACCORDANCE WITH SEC. 30.701 (D) OF THE ANNUAL AND SICK LEAVE REGULATIONS?

4. IF THE PERSONNEL ACTIONS OF JANUARY 11, 1954, WERE EFFECTIVE TO RESTORE MR. GILLIAM TO DUTY IN THE PHA, DID HE BECOME ENTITLED, UPON SEPARATION FROM THE PHA AT CLOSE OF BUSINESS JANUARY 7, 1954, TO A LUMP SUM PAYMENT FOR ACCRUED ANNUAL LEAVE UNDER THE LUMP SUM LEAVE PAYMENT ACT ( PUBLIC LAW 525, 78TH CONGRESS; 58 STAT. 845, AS AMENDED; 5 U.S.C. SEC. 61B).

SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, PROVIDES IN SUBPARAGRAPH B (3) AS FOLLOWS- -

(3) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.

THERE IS NO REQUIREMENT IN THE STATUE JUST QUOTED THAT THE APPEAL BE IN ANY SPECIAL FORM OR WORDING. OUR VIEW IS THAT MR. GILLIAM'S ORAL INQUIRY REGARDING THE PROPRIETY OF THE REDUCTION-IN-FORCE NOTICE PROPERLY MAY BE REGARDED AS "AN APPEAL TO PROPER AUTHORITY" AS THOSE WORDS ARE USED IN THE ACT. THE PERSONNEL ACTION OF JANUARY 11, 1954, RESTORING MR. GILLIAM RETROACTIVELY EFFECTIVE DECEMBER 1, 1953, APPEARS TO HAVE BEEN BASED UPON AN ADMINISTRATIVE FINDING THAT THE SEPARATION BY REDUCTION IN FORCE WAS UNJUSTIFIED AND UNWARRANTED. FOR THE PURPOSES OF THIS CASE THE EMPLOYEE'S PERIOD OF UNJUSTIFIED REMOVAL IS CONSIDERED TO BE DECEMBER 1, 1953, THROUGH JANUARY 7, 1954. THUS, THE EMPLOYEE HAS MET THE REQUIREMENTS OF THE STATUTE ENTITLING HIM TO BACK PAY FOR THAT PERIOD. THIS ANSWERS YOUR QUESTION NO. 1.

REGARDING QUESTION NO. 2, OUR VIEW IS THAT SINCE NO PORTION OF THE UNEXPIRED LEAVE FOR WHICH THE EMPLOYEE RECEIVED LUMP-SUM PAYMENT CAN BE RESTORED TO HIS CREDIT WITH THE COURT OF CLAIMS BECAUSE THAT COURT DOES NOT CONSIDER ITS EMPLOYEES AS BEING SUBJECT TO THE ANNUAL LEAVE ACT OF 1951, 65 STAT. 679, OR THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, MR. GILLIAM'S EMPLOYMENT WITH THE COURT OF CLAIMS REQUIRES NO REFUND OF ANY PORTION OF THE LUMP-SUM LEAVE PAYMENT MADE TO HIM.

SINCE QUESTION 2 IS ANSWERED IN THE NEGATIVE, NO ANSWERS TO QUESTIONS NOS. 3 AND 4 ARE REQUESTED.