B-153995, JUN. 3, 1964
Highlights
YOU WERE SUSPENDED FROM SUBSTITUTE SERVICE AS DIRECTED BY THE BUREAU OF PERSONNEL INVESTIGATIONS OF THE CIVIL SERVICE COMMISSION. UPON APPEAL OF THAT SUSPENSION YOU WERE RESTORED TO ACTIVE DUTY "AS OF A CURRENT E. OUR VIEW IS THAT SUCH IS NOT THE CASE. BECAUSE THE PAY PROVISIONS IN SUBSECTION 652 (B) (1) RELATE ONLY TO PERSONS WHO ARE. YOU WERE STILL SERVING A PROBATIONARY PERIOD AT THE TIME OF YOUR SUSPENSION. SUBSECTION 652 (B) (2) RELATES TO VETERAN PREFERENCE ELIGIBLES WHO ARE RESTORED TO DUTY UNDER THE PROCEDURES OF 5 U.S.C. 863 AND WHO HAVE ALSO "COMPLETED A PROBATIONARY OR TRIAL PERIOD.'. WAS SUBJECT TO INVESTIGATION OF YOUR QUALIFICATIONS. - THE COMMISSION MAY INSTRUCT THE AGENCY TO REMOVE THE EMPLOYEE IF THE COMMISSION'S INVESTIGATION DISCLOSES THAT HE IS DISQUALIFIED FOR THE SERVICE.
B-153995, JUN. 3, 1964
TO MR. JAMES H. EVERAGE:
YOUR LETTER OF APRIL 12, 1964, REQUESTS THAT WE RECONSIDER OUR CLAIMS DIVISION SETTLEMENT OF MARCH 19, 1964, WHICH, FOR THE REASONS STATED THEREIN, DISALLOWED YOUR CLAIM FOR PAY FOR THE PERIOD OF YOUR SUSPENSION FROM DUTY, NAMELY, FROM MAY 17, 1963, TO JANUARY 15, 1964, AS A SUBSTITUTE DISTRIBUTION CLERK IN THE RICHMOND, VIRGINIA, POST OFFICE.
AS INDICATED IN THE SECOND PARAGRAPH OF THE SETTLEMENT, YOU WERE SUSPENDED FROM SUBSTITUTE SERVICE AS DIRECTED BY THE BUREAU OF PERSONNEL INVESTIGATIONS OF THE CIVIL SERVICE COMMISSION. THEREAFTER, UPON APPEAL OF THAT SUSPENSION YOU WERE RESTORED TO ACTIVE DUTY "AS OF A CURRENT E," NAMELY, EFFECTIVE JANUARY 15, 1964, AS DIRECTED BY THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW IN THEIR LETTER DATED DECEMBER 31, 1963, TO THE REGIONAL DIRECTOR OF THE POST OFFICE DEPARTMENT. THAT DECISION WITHIN THE COMMISSION'S JURISDICTION CONTAINED NO RECOMMENDATION FOR RETROACTIVE PAY TO YOU.
YOU SAY THE BACK PAY STATUTE, 5 U.S.C. 652, CITED IN THE THIRD PARAGRAPH OF THE SETTLEMENT, VERY STRONGLY SUPPORTS AND JUSTIFIES YOUR CLAIM. OUR VIEW IS THAT SUCH IS NOT THE CASE, BECAUSE THE PAY PROVISIONS IN SUBSECTION 652 (B) (1) RELATE ONLY TO PERSONS WHO ARE, AS STATED IN SUBSECTION 652 (A),"IN THE CLASSIFIED CIVIL SERVICE" ON THE DATE OF SUSPENSION OR REMOVAL. TO BE ,IN THE CLASSIFIED CIVIL SERVICE" AN EMPLOYEE MUST COMPLETE THE REQUIRED PROBATIONARY PERIOD. YOU WERE STILL SERVING A PROBATIONARY PERIOD AT THE TIME OF YOUR SUSPENSION. FURTHER, SUBSECTION 652 (B) (2) RELATES TO VETERAN PREFERENCE ELIGIBLES WHO ARE RESTORED TO DUTY UNDER THE PROCEDURES OF 5 U.S.C. 863 AND WHO HAVE ALSO "COMPLETED A PROBATIONARY OR TRIAL PERIOD.'
THE RECORD SHOWS YOUR APPOINTMENT ON SEPTEMBER 15, 1962, WAS SUBJECT TO INVESTIGATION OF YOUR QUALIFICATIONS. SEE 5 U.S.C. 633 (4), AND CIVIL SERVICE RULE V, 5 CFR 05.2. FURTHER, THE CIVIL SERVICE REGULATIONS PROVIDE IN SUBSECTIONS 2.108 (A) AND (C), REGARDING ALL TYPES OF APPOINTMENTS SUBJECT TO THOSE REGULATIONS THAT, FOR A PERIOD OF ONE YEAR AFTER THE EFFECTIVE DATE OF AN APPOINTMENT--- SUCH AS YOURS--- THE COMMISSION MAY INSTRUCT THE AGENCY TO REMOVE THE EMPLOYEE IF THE COMMISSION'S INVESTIGATION DISCLOSES THAT HE IS DISQUALIFIED FOR THE SERVICE. SUBSECTION 2.108 (E) EXPRESSLY PROVIDES THAT PARTS 9 AND 22 OF THE REGULATIONS--- RELATING TO THE SUSPENSION AND REMOVAL PROCEDURES AND TO EMPLOYEE APPEALS--- UNDER AUTHORITY OF 5 U.S.C. 652 AND 863, RESPECTIVELY,"SHALL NOT APPLY WHEN AN AGENCY REMOVES AN EMPLOYEE UNDER INSTRUCTIONS OF THE COMMISSION.' SEE BANDER V. UNITED STATES, 141 CT.CL. 373, CERTIORARI DENIED, 358 U.S. 855; NADELHAFT V. UNITED STATES, 132 CT.CL. 316, CITED IN 35 COMP. GEN. 96, COPY OF WHICH IS ENCLOSED.
THEREFORE, AS YOU WERE SUSPENDED ON MAY 17, 1963, AS DIRECTED BY THE COMMISSION DURING THE PROBATIONARY PERIOD OF ONE YEAR AFTER YOU WERE APPOINTED, THE BACK PAY BENEFITS OF 5 U.S.C. 652 DO NOT APPLY TO YOU.