B-76300, JULY 27, 1948, 28 COMP. GEN. 66

B-76300, JULY 27, 1948, 28 COMP. GEN. 66

RESTORATION OF VETERANS' PREFERENCE ELIGIBLES AFTER DEMOTION - EFFECTIVE DATE WHERE THE RESTORATION OF A PREFERENCE-ELIGIBLE EMPLOYEE TO THE GRADE FROM WHICH DEMOTED ADMINISTRATIVELY WAS MADE WITHOUT ANY APPEAL BY THE EMPLOYEE TO THE CIVIL SERVICE COMMISSION, THE PROVISIONS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED BY THE ACT OF AUGUST 4, 1947, MAKING ADMINISTRATIVE ACTION MANDATORY AS TO RECOMMENDATIONS OF THE COMMISSION IN CASES OF APPEALS TO IT BY PREFERENCE ELIGIBLE REDUCED IN RANK, MAY NOT BE REGARDED AS AUTHORIZING THE RETROACTIVE RESTORATION OF THE EMPLOYEE; RATHER, RESTORATION CAN BE MADE EFFECTIVE ONLY FROM THE DATE ADMINISTRATIVELY PROCESSED.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, UNITED STATES RAILROAD RETIREMENT BOARD, JULY 27, 1948:

I HAVE YOUR LETTER OF MAY 6, 1948, AS FOLLOWS:

UNDER AUTHORITY CONTAINED IN SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 207, AS AMENDED BY THE BUDGET AND ACCOUNTING ACT, APPROVED JUNE 10, 1921, 42 STAT. 24, 31 U.S.C. 74, I ASK FOR YOUR DECISION UPON A QUESTION INVOLVING A PAYMENT WHICH THIS BOARD WISHES TO AUTHORIZE WITH RETROACTIVE EFFECT TO A PREFERENCE ELIGIBLE EMPLOYEE OF THIS AGENCY FOUND BY THE BOARD TO HAVE BEEN WRONGFULLY DEMOTED.

THE EMPLOYEE IN QUESTION, ENTITLED TO VETERAN'S PREFERENCE AS THE WIDOW OF AN HONORABLY DISCHARGED VETERAN, WAS DEMOTED FROM A POSITION AS CLAIMS EXAMINER, GRADE CAF-5, $2,644.80 PER ANNUM TO THAT OF ACCOUNT CLARK, GRADE CAF-4, $2,544.48 PER ANNUM, EFFECTIVE JANUARY 1, 1948, UNDER AUTHORITY OF CIVIL SERVICE COMMISSION REGULATIONS SECTION 8.103 FOLLOWING THIRTY DAYS ADVANCE NOTICE PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT AND CIVIL SERVICE COMMISSION REGULATIONS SECTION 22.2.

ON APRIL 13, 1948, THE BOARD, AFTER HEARING THE APPEAL OF THIS EMPLOYEE FOR RECONSIDERATION OF THE DEMOTION ACTION, APPROVED HER RESTORATION TO THE POSITION AND GRADE FROM WHICH SHE WAS DEMOTED, EFFECTIVE "FROM THE EARLIEST DATE PERMISSIBLE UNDER THE LAW.'

THE BOARD IS COGNIZANT OF THE RULING IN 25 COMP. GEN. 620, 624, THAT SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, VESTS NO AUTHORITY EITHER IN THE CIVIL SERVICE COMMISSION OR THE PARTICULAR DEPARTMENT OR ESTABLISHMENT CONCERNED TO RESTORE TO DUTY A DEMOTED PREFERENCE ELIGIBLE AS OF THE DATE OF DEMOTION. IT NOW APPEARS THAT THE AMENDMENT OF AUGUST 4, 1947, ( PUBLIC LAW 325, 80TH CONGRESS) TO THE VETERANS' PREFERENCE ACT OF 1944, MAY HAVE CONFERRED THE AUTHORITY, IF IT DID NOT EXIST PREVIOUSLY, TO MAKE RETROACTIVE RESTORATION IN CASES SUCH AS IS HERE INVOLVED. CF. WETTRE V. HAGUE, 74 FED. SUPP. 396 (D. MASS. 1947). WITTNER V. UNITED STATES, 76 FED. SUPP. 110 ( CT. CL. 1948).

IN 25 COMP. GEN. 620, AT PAGE 624, THE DECISION REFERRED TO BY YOU, IT WAS STATED.

IT IS NOTED THAT THE FIRST PROVISO IN SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, QUOTED IN YOUR LETTER, SUPRA SPECIFICALLY PROVIDES THAT UPON APPEAL BY A PREFERENCE ELIGIBLE TO THE CIVIL SERVICE COMMISSION FROM AN ADVERSE DECISION BY AN ADMINISTRATIVE OFFICER CONCERNING MATTERS WITHIN THE PURVIEW OF THE SAID SECTION 14, THE CIVIL SERVICE COMMISSION, AFTER INVESTIGATION AND CONSIDERATION OF THE EVIDENCE PRESENTED,"SHALL SUBMIT ITS FINDINGS AND RECOMMENDATIONS TO THE PROPER ADMINISTRATIVE OFFICER.' THUS, IT WILL BE SEEN THAT THE SAID SECTION 14 VESTS NO AUTHORITY EITHER IN THE CIVIL SERVICE COMMISSION OR THE PARTICULAR DEPARTMENT OR ESTABLISHMENT CONCERNED TO RESTORE TO DUTY A DISCHARGED OR SUSPENDED PREFERENCE ELIGIBLE AS OF THE DATE OF DISCHARGE OR SUSPENSION. ACCORDINGLY, AND IN CONSONANCE WITH THE PRINCIPLES HEREINBEFORE REFERRED TO, YOU ARE ADVISED THAT, WITH RESPECT TO RESTORATIONS TO DUTY FOLLOWING ADMINISTRATIVE ACTIONS OF THE CHARACTER MENTIONED IN QUESTION 1, THE EFFECTIVE DATES THEREOF ARE THE DATES ON WHICH THE RESTORATIONS ACTUALLY ARE EFFECTED.

THE ACT OF AUGUST 4, 1947, PUBLIC LAW 325, 61 STAT. 723, REFERRED TO IN YOUR LETTER PROVIDES:

THAT THE FIRST PROVISO OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 (58 STAT. 387) IS HEREBY AMENDED TO READ AS FOLLOWS: "PROVIDED, THAT SUCH PREFERENCE ELIGIBLE SHALL HAVE THE RIGHT TO MAKE A PERSONAL APPEARANCE, OR AN APPEARANCE THROUGH A DESIGNATED REPRESENTATIVE, IN ACCORDANCE WITH SUCH REASONABLE RULES AND REGULATIONS AS MAY BE ISSUED BY THE CIVIL SERVICE COMMISSION; AFTER INVESTIGATION AND CONSIDERATION OF THE EVIDENCE SUBMITTED, THE CIVIL SERVICE COMMISSION SHALL SUBMIT ITS FINDINGS AND RECOMMENDATIONS TO THE PROPER ADMINISTRATIVE OFFICER AND SHALL SEND COPIES OF THE SAME TO THE APPELLANT OR TO HIS DESIGNATED REPRESENTATIVE, AND IT SHALL BE MANDATORY FOR SUCH ADMINISTRATIVE OFFICER TO TAKE SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS.'

IT DOES NOT APPEAR FROM YOUR SUBMISSION THAT ANY APPEAL BY THE EMPLOYEE IN THIS CASE WAS SUBMITTED TO THE CIVIL SERVICE COMMISSION; ON THE CONTRARY, IT APPEARS THAT HER CASE WAS ACTED UPON BY THE RAILROAD RETIREMENT BOARD. THE ABOVE ACT RELATES ONLY TO FINDINGS AND RECOMMENDATIONS BY THE CIVIL SERVICE COMMISSION AND IN NOWISE COULD IT HAVE ANY APPLICATION HERE. HENCE NO CHANGE IS REQUIRED IN THE DECISION OF THIS OFFICE, SUPRA, NEGATIVING RETROACTIVE ACTION BY THE ADMINISTRATIVE OFFICE IN SUCH CASES. ACCORDINGLY, THE RESTORATION OF THE INVOLVED EMPLOYEE TO HER FORMER POSITION DUE TO HER PREFERENCE RIGHT AS WIDOW OF A VETERAN CAN BE MADE EFFECTIVE ONLY FROM THE DATE SUCH RESTORATION IS ADMINISTRATIVELY PROCESSED.

THE TWO COURT CASES CITED BY YOU HAVE BEEN NOTED BUT THEY REQUIRE NO CHANGE IN THE CONCLUSION HERE REACHED.