B-129282, OCT. 11, 1956

B-129282, OCT. 11, 1956

TO MR. RUSSELL W. WINGATE:

YOUR LETTER OF SEPTEMBER 8, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED MAY 24, 1956, WHICH DISALLOWED YOUR CLAIM FOR BACK COMPENSATION COVERING THE PERIOD OF YOUR ALLEGED IMPROPER SEPARATION FROM THE SERVICE AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FROM JUNE 30, 1954, TO JULY 12, 1955.

IT APPEARS THAT ON JUNE 30, 1954, YOU WERE SEPARATED FROM THE SERVICE PURSUANT TO A REDUCTION-IN-FORCE ACTION, AND YOUR NAME WAS PLACED ON THE REEMPLOYMENT PRIORITY LIST IN ACCORDANCE WITH APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION. AT THE TIME YOU WERE SEPARATED YOU HELD THE POSITION OF FIREFIGHTER, GRADE CPC-6. SUBSEQUENT TO YOUR REMOVAL THERE WERE FILLED TWO SUCH PERMANENT POSITIONS ON THE FIREFIGHTER STAFF BY THE EMPLOYMENT OF EMPLOYEES, EACH WITH LESS RETENTION CREDIT THAN YOU. YOU APPEALED THIS ACTION BUT RECEIVED NO SATISFACTORY ADMINISTRATIVE EXPLANATION OF YOUR FAILURE TO RECEIVE A NEW APPOINTMENT. UPON YOUR APPEAL TO THE CIVIL SERVICE COMMISSION IT RECOMMENDED THAT YOUR NAME BE RESTORED TO THE REEMPLOYMENT PRIORITY LIST AND REMAIN THEREON UNTIL YOU HAD ONE YEAR ON THE LIST OR RECEIVED EMPLOYMENT FROM THE LIST PRIOR TO THAT DATE. IT FURTHER APPEARS THAT YOU WERE REEMPLOYED EFFECTIVE JULY 12, 1955.

IT IS AN ESTABLISHED RULE, IN THE ABSENCE OF A STATUTE OTHERWISE PROVIDING, THAT NO COMPENSATION MAY BE PAID FOR WORK DAYS UNLESS ONE PERFORMS DUTY OR IS IN A LEAVE WITH PAY STATUS. THE ACT OF JUNE 10, 1948, 62 STAT. 354, PROVIDES THAT ANY PERSON REMOVED IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION FOR THE PERIOD HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED. HOWEVER, A RIGHT TO COMPENSATION, UNDER THAT STATUTE, IS CONTINGENT UPON WHETHER THE REINSTATEMENT OR RESTORATION TO THE POSITION IN QUESTION IS ON THE GROUND THAT THE REMOVAL THEREFROM WAS UNJUSTIFIED OR UNWARRANTED.

AS HEREINBEFORE INDICATED, BY LETTER DATED SEPTEMBER 30, 1955, THE CIVIL SERVICE COMMISSION, IN ACTING ON YOUR APPEAL, RECOMMENDED THAT YOUR NAME BE RESTORED TO THE REEMPLOYMENT PRIORITY LIST AND REMAIN THEREON UNTIL YOU HAD ONE YEAR ON THE LIST OR RECEIVED EMPLOYMENT FROM THE LIST PRIOR TO THAT DATE. THE COMMISSION FURTHER DIRECTED THAT NO VACANCY IN YOUR FORMER STATION FOR WHICH YOU COULD QUALIFY AND TO WHICH YOU HAD EMPLOYMENT RIGHTS SHOULD BE FILLED BY THE DEPARTMENT WHILE YOU WERE ON THE REEMPLOYMENT LIST, UNLESS YOU DECLINED SUCH EMPLOYMENT IN WRITING. HOWEVER, THE CIVIL SERVICE COMMISSION DID NOT FIND THAT YOUR REMOVAL WAS UNJUSTIFIED OR UNWARRANTED NOR DID IT DIRECT YOUR RESTORATION. SINCE YOU WERE NOT RESTORED TO DUTY BECAUSE YOUR REMOVAL FROM THE SERVICE WAS UNJUSTIFIED OR UNWARRANTED, THERE IS NO AUTHORITY UNDER THAT LAW FOR ALLOWING YOUR CLAIM AND WE ARE UNAWARE OF ANY OTHER STATUTE THAT WOULD PERMIT ITS FAVORABLE CONSIDERATION. IN THAT REGARD WE WOULD LIKE TO POINT OUT THAT THE CIVIL SERVICE COMMISSION AND THE EMPLOYING AGENCY, RATHER THAN THE GENERAL ACCOUNTING OFFICE, ARE CHARGED WITH THE DUTY OF DETERMINING WHETHER REMOVALS ARE UNJUSTIFIED OR UNWARRANTED AND OF DIRECTING RESTORATIONS.

ACCORDINGLY, OUR SETTLEMENT OF MAY 24, 1956, WAS CORRECT AND UPON REVIEW IT MUST BE AND IS ..END :