B-159133, MAY 23, 1966, 45 COMP. GEN. 722

B-159133, MAY 23, 1966, 45 COMP. GEN. 722

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACK PAY - BACK PAY ACT OF 1966 - RESTORATION PRIOR TO ENACTMENT AN EMPLOYEE WHO PRIOR TO ENACTMENT OF THE "BACK PAY ACT OF 1966," APPROVED MARCH 30, 1966, IS RESTORED TO DUTY UPON DETERMINATION THAT HER DISABILITY RETIREMENT APPLICATION HAD BEEN ERRONEOUSLY APPROVED IS NOT ENTITLED TO BACK PAY COMPENSATION FOR THE PERIOD SHE WAS IN A LEAVE AND SEPARATION STATUS, THE ACT LIMITING COVERAGE TO UNJUSTIFIED OR UNWARRANTED ACTIONS TAKEN ON OR AFTER THE DATE OF ENACTMENT, EXCEPT FOR PENDING TIMELY APPEALS NOT YET DECIDED AT TIME OF ENACTMENT, AND PRIOR ACTIONS REVIEWED AT AGENCY DISCRETION AND CORRECTED, ON WHICH THE DECISION FAVORABLE TO THE EMPLOYEE IS MADE ON OR AFTER THE DATE OF ENACTMENT, WHETHER OR NOT THE REVIEW WAS BEGUN BEFORE ENACTMENT; THEREFORE, THE EMPLOYEE RESTORED TO DUTY PRIOR TO THE 1966 ACT IS NOT ELIGIBLE FOR BACK PAY UNDER THAT ACT, AND THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (1), LIKEWISE ARE INAPPLICABLE, HAVING NO APPLICATION TO VOLUNTARY OR INVOLUNTARY SEPARATION ON ACCOUNT OF RETIREMENT.

TO F. HIGGINBOTHAM, UNITED STATES GOVERNMENT PRINTING OFFICE, MAY 23, 1966:

YOUR LETTER OF MAY 5, 1966, WITH ENCLOSURES, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MRS. MARY T. BROOKS FOR $896.10, REPRESENTING BACK PAY FOR THE PERIOD DECEMBER 19, 1965 THROUGH FEBRUARY 26, 1966.

YOUR REPORT DISCLOSES THAT MRS. BROOKS FILED AN APPLICATION FOR DISABILITY RETIREMENT ON NOVEMBER 17, 1965, AND CONTINUED IN A DUTY STATUS THROUGH 7 HOURS OF HER REGULAR TOUR OF DUTY OF DECEMBER 30, 1965, AT WHICH TIME SHE WAS PLACED ON LEAVE WITHOUT PAY IN ACCORDANCE WITH PARAGRAPH II OF THE CIVIL SERVICE COMMISSION'S FPM LETTER NO. 831 13, DATED NOVEMBER 16, 1965. THE EMPLOYEE CONTINUED IN A LEAVE WITHOUT PAY STATUS UNTIL JANUARY 12, 1966, ON WHICH DATE YOUR OFFICE RECEIVED NOTIFICATION FROM THE CIVIL SERVICE COMMISSION THAT MRS. BROOKS' APPLICATION FOR DISABILITY RETIREMENT HAD BEEN APPROVED. THE EMPLOYEE, THEREFORE, WAS SEPARATED FROM THE ROLLS EFFECTIVE AT THE CLOSE OF BUSINESS ON JANUARY 12, 1966. HOWEVER, BY LETTER DATED FEBRUARY 18, 1966, THE CIVIL SERVICE COMMISSION ADVISED YOU THAT THEIR NOTICE OF APPROVAL OF DISABILITY RETIREMENT DATED JANUARY 11, 1966, HAD BEEN SENT TO MRS. BROOKS IN ERROR AND YOUR OFFICE WAS DIRECTED TO CANCEL THE EMPLOYEE'S ERRONEOUS SEPARATION. MRS. BROOKS WAS RESTORED TO DUTY ON FEBRUARY 28, 1966.

YOU SUGGEST THAT MRS. BROOKS MAY BE ENTITLED TO RECEIVE RETROACTIVE COMPENSATION FOR THE PERIOD OF HER ERRONEOUS SEPARATION UNDER THE PROVISIONS OF PUBLIC LAW 89-380, ENTITLED THE "BACK PAY ACT OF 1966," APPROVED MARCH 30, 1966.

SECTION 3 OF PUBLIC LAW 89-380, 5 U.S.C. 652 (B), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 3. EACH CIVILIAN OFFICER OR EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION TAKEN PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT, WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF SUCH OFFICER OR EMPLOYEE -

IN HIS REPORT ON H.R. 1647 (CONTAINED IN S.REPT. NO. 1062, DATED MARCH 10, 1966) MR. JOHN W. MACY, JR., CHAIRMAN OF THE UNITED STATES CIVIL SERVICE COMMISSION, MADE THE FOLLOWING REMARKS IN CLARIFICATION OF THE STATUTORY LANGUAGE QUOTED ABOVE:

* * * IT LIMITS COVERAGE TO UNJUSTIFIED OR UNWARRANTED ACTIONS TAKEN ON OR AFTER THE DATE OF ENACTMENT, EXCEPT FOR (1) TIMELY EMPLOYEE APPEALS NOT YET DECIDED AT THE TIME OF ENACTMENT, AND (2) PRIOR ACTIONS REVIEWED AT AGENCY DISCRETION AND CORRECTED ON WHICH THE DECISION FAVORABLE TO THE EMPLOYEE IS MADE ON OR AFTER THE DATE OF ENACTMENT, WHETHER OR NOT THE REVIEW WAS BEGUN BEFORE ENACTMENT. * * *

IT IS CLEAR FROM THE ABOVE THAT PUBLIC LAW 89-380 IS NOT APPLICABLE TO MRS. BROOKS' ERRONEOUS SEPARATION SINCE THE RECORD SHOWS THAT SHE WAS RESTORED TO DUTY PRIOR TO THE DATE OF ENACTMENT OF THAT LAW.

THE BACK PAY PROVISIONS OF SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (1), LIKEWISE ARE INAPPLICABLE TO MRS. BROOKS' SEPARATION, IT HAVING BEEN HELD THAT SUCH PROVISIONS HAVE NO APPLICATION TO VOLUNTARY OR INVOLUNTARY SEPARATION ON ACCOUNT OF RETIREMENT. SEE ELLMORE V. BRUCKER, 236 F. 2D 734, AND MURPHY V. WILSON, 236 F. 2D 737.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.