B-142574, MAY 2, 1960

B-142574, MAY 2, 1960

TO MRS. MADELINE J. GOLEM:

YOUR LETTER OF MARCH 30, 1960, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF MARCH 21, 1960, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR THE PERIOD OF YOUR SEPARATION FROM THE DEPARTMENT OF THE AIR FORCE.

YOU RECEIVED AN OVERSEAS LIMITED APPOINTMENT--- WHICH DID NOT CONFER COMPETITIVE CIVIL SERVICE STATUS--- EFFECTIVE JANUARY 22, 1957, UNDER AUTHORITY OF CIVIL SERVICE REGULATION 2.308 (B), THEN IN EFFECT. YOU WERE REMOVED EFFECTIVE APRIL 29, 1959, AND UPON ADMINISTRATIVE APPEAL WERE RESTORED--- ON THE GROUND YOUR REMOVAL WAS UNWARRANTED--- ON JULY 8, 1959. COMPENSATION FOR THE PERIOD OF SEPARATION WAS REFUSED ADMINISTRATIVELY BECAUSE YOUR CASE WAS NOT WITHIN THE PURVIEW OF THE ACT OF JUNE 10, 1948, 5 U.S.C. 652.

SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, AUTHORIZING THE PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVAL, IS LIMITED BY ITS TERMS TO PERSONS "IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED ATES.' THE EXPRESSION "CLASSIFIED CIVIL SERVICE," AS IT APPEARS IN THE VARIOUS ACTS OF CONGRESS IS DEFINED BY STATUTE AS BEING SYNONYMOUS WITH COMPETITIVE STATUS, 5 U.S.C. 658. SINCE YOU DID NOT HAVE COMPETITIVE STATUS ON APRIL 29, 1959, THE DATE OF YOUR REMOVAL, YOU WERE NOT IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES. CONSEQUENTLY, PAYMENT OF COMPENSATION TO YOU--- UNDER THE ACT OF JUNE 10, 1948, SUPRA--- FOR THE PERIOD OF YOUR REMOVAL PROPERLY WAS DENIED. IT MAY BE STATED THAT OUR OFFICE KNOWS OF NO OTHER STATUTE OR REGULATION UNDER WHICH YOU WOULD BE ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR REMOVAL. THEREFORE, UPON REVIEW, THE SETTLEMENT OF MARCH 21, 1960, IS SUSTAINED.

CONCERNING YOUR INQUIRY REGARDING POSSIBLE COURT ACTION YOU ARE INFORMED THAT WHILE THE ABOVE CONSTITUTES THE FINAL ACTION OUR OFFICE MAY TAKE BASED UPON THE PRESENT RECORD IN YOUR CASE, YOU ARE PRIVILEGED TO FILE SUIT IN THE UNITED STATES COURT OF CLAIMS, WASHINGTON, D.C., FOR SUCH AMOUNT AS YOU BELIEVE IS DUE YOU. THE STATUTE OF LIMITATIONS APPLICABLE TO ACTIONS IN THAT COURT IS STATED IN 28 U.S.C. 2501, AS FOLLOWS--- "EVERY CLAIM IN WHICH THE COURT OF CLAIMS HAS JURISDICTION SHALL BE BARRED UNLESS THE PETITION THEREON IS FILED, OR * * * WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.' HOWEVER, WE DIRECT YOUR ATTENTION TO THE FOLLOWING CASES: CHOLLAR V. UNITED STATES, 130 C.CLS. 338; JORDAN V. UNITED STATES, 123 C.CLS. 577; BROWN V. UNITED STATES, 122 C.CLS. 361, AND 34 COMP. GEN. 296, WHEREIN THE COURT RULED THAT EMPLOYEES NOT IN THE CLASSIFIED CIVIL SERVICE WERE NOT ENTITLED TO RECOVER RETROACTIVE PAY.