B-124433, AUGUST 15, 1955, 35 COMP. GEN. 96

B-124433, AUGUST 15, 1955, 35 COMP. GEN. 96

COMPENSATION - DISCHARGES AND DISMISSALS - PROBATIONARY APPOINTMENTS - BACK PAY RIGHTS A VETERAN WHO IS RATED ELIGIBLE FOR FEDERAL EMPLOYMENT ON APPEAL OF A SECURITY-LOYALTY REMOVAL, EFFECTED PRIOR TO THE EXPIRATION OF HIS PROBATIONARY PERIOD OF EMPLOYMENT, MAY NOT BE REGARDED AS HAVING BEEN IN THE CLASSIFIED SERVICE OR ENTITLED TO THE BENEFITS OF THE REMOVAL PROCEDURES OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 SO AS TO RECEIVE BACK PAY UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948; AND IN THE ABSENCE OF ANY OTHER BACK PAY STATUTE, THE CIVIL SERVICE COMMISSION AND THE ADMINISTRATIVE AGENCY ARE WITHOUT AUTHORITY TO ORDER RESTORATION AND BACK PAY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 15, 1955:

COMMISSIONER GEORGE M. MORRE'S LETTER OF JUNE 20, 1955, REQUESTS OUR DECISION ON CERTAIN QUESTIONS ARISING FROM THE FACTS STATED BELOW.

A VETERAN WHO HAD RECEIVED AN INDEFINITE APPOINTMENT IN THE VETERANS ADMINISTRATION ON MAY 18, 1953, WAS, AFTER INVESTIGATION, RATED INELIGIBLE (SECURITY-LOYALTY) BY A REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION. AT THE DIRECTION OF THE REGIONAL DIRECTOR THE INDIVIDUAL WAS REMOVED EFFECTIVE APRIL 20, 1954. UPON APPEAL TO THE COMMISSIONERS THE DECISION OF THE DIRECTOR WAS REVERSED AND THE INDIVIDUAL WAS RATED ELIGIBLE.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR OUR DECISION:

1. DOES THE COMMISSION HAVE AUTHORITY UNDER PUBLIC LAW 623, 80TH CONGRESS (OR ANY OTHER STATUTE) TO ORDER RESTORATION AND BACK PAY IN CASES OF THIS NATURE?

2. IF YOUR ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, AND THE VETERANS ADMINISTRATION RESTORES THE EMPLOYEE TO DUTY ON THE BASIS OF THE DECISION BY THE COMMISSION THAT HE IS ELIGIBLE, IS THE VETERANS ADMINISTRATION AUTHORIZED UNDER PUBLIC LAW 623, 80TH CONGRESS (OR ANY OTHER STATUTE) TO PAY THE EMPLOYEE FOR THE PERIOD HE WAS OFF THE ROLLS?

WE UNDERSTAND THAT THE INDEFINITE APPOINTMENT WAS MADE PURSUANT TO SECTION 2.115 OF THE CIVIL SERVICE REGULATIONS, 5 C.F.R., SUBJECT TO INVESTIGATION PURSUANT TO SECTION 2.112 (A) (7). SECTION 2.215 (A) PROVIDES THAT THE FIRST YEAR OF SERVICE UNDER AN INDEFINITE APPOINTMENT SHALL BE A TRIAL PERIOD SIMILAR TO THE PROBATIONARY PERIOD ESTABLISHED BY SECTION 2.113. SECTION 2.112 (B) ALLOWS A PERIOD OF 18 MONTHS FOR INVESTIGATION AND PROVIDES THAT REMOVAL MAY BE ORDERED BY THE COMMISSION IF THE INVESTIGATION DISCLOSES THAT THE INDIVIDUAL IS DISQUALIFIED FOR FEDERAL EMPLOYMENT. SECTION 2.104 (A) (7), DEALING WITH DISQUALIFICATIONS OF APPLICANTS, PROVIDES THAT AN ELIGIBLE MAY BE DENIED APPOINTMENT BECAUSE OF REASONABLE DOUBT REGARDING THE LOYALTY OF THE PERSON TO THE GOVERNMENT OF THE UNITED STATES.

SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948 ( PUBLIC LAW 623), 62 STAT. 355, 5 U.S.C. 652, PROVIDES FOR THE PAYMENT OF BACK PAY TO PERSONS WHO HAVE BEEN REMOVED OR SUSPENDED WITHOUT PAY FROM THE CLASSIFIED CIVIL SERVICE UNDER SECTION 6 (A) OF THE STATUTE AND WHO, UPON APPEAL TO PROPER AUTHORITY, ARE REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. SECTION 6 (B) (2) PROVIDES FOR THE PAYMENT OF BACK PAY TO PERSONS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863. UPON THE AUTHORITY OF BAILEY V. RICHARDSON, 182 F.2D 46, AFFIRMED 341 U.S. 918, WE HAVE HELD THAT AN EMPLOYEE WHO RECEIVES A REINSTATEMENT APPOINTMENT SUBJECT TO A LOYALTY INVESTIGATION PURSUANT TO CIVIL SERVICE COMMISSION REGULATIONS AND EXECUTIVE ORDER 9835, AND WHO LATER IS SUSPENDED UPON THE GROUND OF DISLOYALTY, IS NOT "IN THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF THE 1912 ACT, AS AMENDED, AND THEREFORE, IS NOT ENTITLED TO BACK PAY BENEFITS OF SECTION 6 (B) (1) UPON RESTORATION AFTER APPEAL. 30 COMP. GEN. 484. TO THE SAME EFFECT IS IRVING NADELHAFT V. UNITED STATES, C.1CLS NO. 209-53, DECIDED JUNE 7, 1955. WE MUST CONCLUDE IN THE LIGHT OF THOSE DECISIONS THAT THE INDIVIDUAL HERE INVOLVED WOULD NOT BE ENTITLED TO BACK PAY UNDER SECTION 6 (B) (1).

SINCE THE REMOVAL OF THE INDIVIDUAL WAS EFFECTED PRIOR TO THE EXPIRATION OF THE 12-MONTH TRIAL PERIOD (EVEN ASIDE FROM THE 18 MONTHS ALLOWED FOR INVESTIGATION), HE HAD NOT "COMPLETED A PROBATIONARY OR TRIAL PERIOD" SO AS TO ENTITLE HIM TO THE BENEFITS OF THE REMOVAL PROCEDURES PROVIDED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT, SUPRA. CF. KIRKPATRICK V. GRAY, 198 F.2D 533, CERTIORARI DENIED, 344 U.S. 880. SINCE HE IS NOT ENTITLED TO THOSE BENEFITS, THE BACK PAY PROVISIONS OF SECTION 6 (B) (2) ARE NOT APPLICABLE TO HIM.

WE RECOGNIZE THAT AN ORDER OF THE CIVIL SERVICE COMMISSION FOR THE RETROACTIVE RESTORATION OF A PREFERENCE EMPLOYEE WHO HAS BEEN SUBJECTED TO ADVERSE ACTION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, SUPRA--- COMPLIANCE WITH WHICH ORDER IS MANDATORY UNDER SAID SECTION 14--- MAY CONFER A RIGHT TO BACK PAY. B-121070, MAY 3, 1955, 34 COMP. GEN. 561. HOWEVER, AS POINTED OUT IN THE DISCUSSION ABOVE, SECTION 14 IS INAPPLICABLE IN THE SITUATION HERE. WHILE SECTION 19 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 868, CONTAINS A MANDATORY COMPLIANCE PROVISION SIMILAR TO THE ONE IN SECTION 14 JUST MENTIONED, THAT PROVISION APPEARS TO RELATE ONLY TO MATTERS ARISING UNDER THE ACT; AND NO SUGGESTION IS MADE IN THE PRESENTATION OF THIS CASE THAT ANY RIGHT ARISING UNDER THE VETERANS' PREFERENCE ACT IS INVOLVED.

THE MENTION OF LOYALTY-SECURITY GROUNDS AS THE REASON FOR THE INITIAL ACTION OF THE REGIONAL DIRECTOR SUGGESTS CONSIDERATION OF THE ACT OF AUGUST 26, 1950 ( PUBLIC LAW 733), 64 STAT. 476. THAT ACT--- AS EXTENDED TO ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT BY EXECUTIVE ORDER NO. 10450 DATED APRIL 27, 1953, EFFECTIVE 30 DAYS AFTER THAT DATE -- PROVIDES FOR THE SUMMARY SUSPENSION OF AN EMPLOYEE WHEN THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED DEEMS IT NECESSARY IN THE INTERESTS OF NATIONAL SECURITY AND, FOLLOWING INVESTIGATION AND REVIEW, FOR THE DISCRETIONARY TERMINATION OF THE EMPLOYMENT. THE ACT ALSO PROVIDES FOR THE DISCRETIONARY REINSTATEMENT OR RESTORATION OF THE EMPLOYEE AND PAYMENT OF BACK PAY FOR ALL OR ANY PART OF THE PERIOD OF SUSPENSION OR TERMINATION. HOWEVER, WE UNDERSTAND THAT THE AUTHORITY OF PUBLIC LAW 733 WAS NOT UTILIZED ON CONNECTION WITH THE ACTION HERE INVOLVED. CONSEQUENTLY, THE PROVISIONS OF THAT STATUTE REGARDING REINSTATEMENT OR RESTORATION AND BACK PAY ARE NOT FOR APPLICATION.

IN SUMMARY, WE KNOW OF NO STATUTE UNDER WHICH A RIGHT TO BACK PAY COULD BE CONFERRED IN THIS CASE BY A FINDING OR ORDER OF THE CIVIL SERVICE COMMISSION OR BY ACTION OF THE VETERANS ADMINISTRATION. ACCORDINGLY, BOTH QUESTIONS PRESENTED, SO FAR AS THEY CONCERN BACK PAY, ARE ANSWERED IN THE NEGATIVE.