B-79027, SEPTEMBER 28, 1948, 28 COMP. GEN. 200

B-79027, SEPTEMBER 28, 1948, 28 COMP. GEN. 200

COMPENSATION - DISCHARGES, SUSPENSIONS, ETC. - ACT OF JUNE 10, 1948 UNDER THE PROVISIONS OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, AUTHORIZING THE PAYMENT OF COMPENSATION FOR PERIODS DURING WHICH EMPLOYEES WERE ERRONEOUSLY REMOVED OR SUSPENDED WITHOUT PAY FROM THE SERVICE, ONLY AN EMPLOYEE WHO WAS REMOVED OR SUSPENDED AFTER JUNE 10, 1948, THE EFFECTIVE DATE OF THE STATUTE, AND WHO OTHERWISE MEETS THE CONDITIONS PRESCRIBED BY SAID SECTION 6 (B) IS ENTITLED TO COMPENSATION FOR THE PERIOD OF SUCH REMOVAL OR SUSPENSION FOR WHICH NO COMPENSATION WAS RECEIVED. A DEMOTION OR REDUCTION IN GRADE OR COMPENSATION MAY NOT BE REGARDED AS A REMOVAL OR A SUSPENSION WITHOUT PAY FROM THE SERVICE WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SO AS TO ENTITLE AN EMPLOYEE WHO HAD BEEN IMPROPERLY DEMOTED OR REDUCED TO THE BENEFITS OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) OF SAID ACT UPON COMPLIANCE WITH THE CONDITIONS PRESCRIBED THEREIN. THE DISMISSAL OF AN EMPLOYEE BECAUSE OF HIS FAILURE TO ATTAIN THE PROPER DEGREE OF EFFICIENCY AS PROVIDED IN SECTION 9 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE CIVIL SERVICE REGULATIONS ISSUED PURSUANT THERETO, IS A REMOVAL FOR CAUSE TO PROMOTE THE EFFICIENCY OF THE SERVICE WITHIN THE CONTEMPLATION OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, AND, THEREFORE, EMPLOYEES SO DISMISSED AND THEREAFTER REINSTATED MAY BE REGARDED AS ENTITLED TO THE BENEFITS OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) OF THE ACT UPON COMPLIANCE WITH THE CONDITIONS PRESCRIBED THEREIN.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 28, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 30, 1948, SUBMITTING VARIOUS QUESTIONS FOR ADVANCE DECISION REGARDING THE "BACK PAY" PROVISIONS OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 80TH CONGRESS, 62 STAT. 354, 356, AMENDING SECTION 6 OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, TO READ AS FOLLOWS:

SEC. 6. (A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING. ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL (1) HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM; (2) BE FURNISHED WITH A COPY OF SUCH CHARGES; (3) BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND (4) BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION ON SUCH ANSWER. NO EXAMINATION OF WITNESSES NOR ANY TRIAL OR HEARING SHALL BE REQUIRED EXCEPT IN THE DISCRETION OF THE OFFICER OR EMPLOYEE DIRECTING THE REMOVAL OR SUSPENSION WITHOUT PAY. COPIES OF THE CHARGES, THE NOTICE OF HEARING, THE ANSWER, THE REASONS FOR REMOVAL OR SUSPENSION WITHOUT PAY, AND THE ORDER OF REMOVAL OR SUSPENSION WITHOUT PAY SHALL BE MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR AGENCY, AS SHALL ALSO THE REASONS FOR REDUCTION IN GRADE OR COMPENSATION; AND COPIES OF THE SAME SHALL BE FURNISHED, UPON REQUEST, TO THE PERSON AFFECTED AND TO THE CIVIL SERVICE COMMISSION. THIS SUBSECTION SHALL APPLY TO A PERSON WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS'S PREFERENCE ACT OF 1944, AS AMENDED, ONLY IF HE SO ELECTS.

(B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECTS TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.

(2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, SUSPENDED, OR FURLOUGHED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.

(3) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.

(C) MEMBERSHIP IN ANY SOCIETY, ASSOCIATION, CLUB, OR OTHER FORM OF ORGANIZATION OF POSTAL EMPLOYEES NOT AFFILIATED WITH ANY OUTSIDE ORGANIZATION IMPOSING AN OBLIGATION OR DUTY UPON THEM TO ENGAGE IN ANY STRIKE, OR PROPOSING TO ASSIST THEM IN ANY STRIKE, AGAINST THE UNITED STATES, HAVING FOR ITS OBJECTS, AMONG OTHER THINGS IMPROVEMENTS IN THE CONDITION OF LABOR OF ITS MEMBERS, INCLUDING HOURS OF LABOR AND COMPENSATION THEREFOR AND LEAVE OF ABSENCE, BY ANY PERSON OR GROUPS OF PERSONS IN SAID POSTAL SERVICE, OR THE PRESENTING BY ANY SUCH PERSON OR GROUPS OF PERSONS OF ANY GRIEVANCE OR GRIEVANCES TO THE CONGRESS OR ANY MEMBER THEREOF SHALL NOT CONSTITUTE OR BE CAUSE FOR REDUCTION IN RANK OR COMPENSATION OR REMOVAL OF SUCH PERSON OR GROUPS OF PERSONS FROM SAID SERVICE.

(D) THE RIGHT OF PERSONS EMPLOYED IN THE CIVIL SERVICE OF THE UNITED STATES, EITHER INDIVIDUALLY OR COLLECTIVELY, TO PETITION CONGRESS, OR ANY MEMBER THEREOF, OR TO FURNISH INFORMATION TO EITHER HOUSE OF CONGRESS, OR TO ANY COMMITTEE OR MEMBER THEREOF, SHALL NOT BE DENIED OR INTERFERED WITH.

YOUR QUESTIONS WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED BUT GROUPED WHEREVER FEASIBLE, AND FOR PURPOSES OF CONVENIENCE THEY HAVE BEEN NUMBERED.

QUESTION 1.

AN EMPLOYEE IS ON MAY 15, 1948, PRESENTED A LETTER OF CHARGES LOOKING TO HIS DISMISSAL. HE REPLIES WITHIN THE PRESCRIBED TIME LIMIT ACCORDED HIM FOR THAT PURPOSE AND HE IS DISCHARGED EFFECTIVE JUNE 16, 1948. IT WILL BE NOTED THAT THE ACTION LOOKING TO HIS DISMISSAL WAS INITIATED PRIOR TO THE ENACTMENT OF PUBLIC LAW 623 BUT THE DISMISSAL WAS EFFECTED AFTER THAT DATE. ASSUMING THAT THE EMPLOYEE APPEALS TO PROPER AUTHORITY AND IS RESTORED BECAUSE THE DISMISSAL IS FOUND TO BE UNWARRANTED OR UNJUSTIFIED, IS HE ENTITLED TO "BACK PAY" FOR THE TIME LOST?

QUESTION 2.

AN EMPLOYEE IS ON APRIL 1, 1948, PRESENTED WITH A LETTER OF CHARGES LOOKING TO HIS DISMISSAL. HE REPLIES WITHIN THE PRESCRIBED TIME LIMIT AND IS DISMISSED EFFECTIVE MAY 1, 1948. HE THEN APPEALS TO PROPER AUTHORITY AND IT IS FOUND ON JUNE 15, 1948, THAT THE DISMISSAL WAS UNJUSTIFIED AND UNWARRANTED. IT WILL BE NOTED THAT IN THIS CASE THE DISCHARGE WAS EFFECTED PRIOR TO JUNE 10, 1948, BUT THE FINDING THAT HE SHOULD BE RESTORED, AND THE RESTORATION, OCCUR AFTER JUNE 10, 1948. IS THIS EMPLOYEE ENTITLED TO "BACK PAY" UNDE PUBLIC LAW 623?

QUESTION 3.

AN EMPLOYEE WAS DISCHARGED A CONSIDERABLE TIME PRIOR TO THE ENACTMENT OF PUBLIC LAW 623 AND ON APPEAL IT IS FOUND THAT THE DISMISSAL WAS WARRANTED AND JUSTIFIED. THIS DECISION IS COMMUNICATED TO HIM ALSO LONG PRIOR TO THE ENACTMENT OF PUBLIC LAW 623. THE EMPLOYEE MAKES FURTHER APPEALS AND UPON FINAL RECONSIDERATION PROPER AUTHORITY FINDS AFTER JUNE 10, 1948, THAT THE DISMISSAL WAS UNJUSTIFIED AND UNWARRANTED. HE IS THEREUPON RESTORED TO DUTY. DO THE "BACK PAY" PROVISIONS OF PUBLIC LAW 623 APPLY IN THIS CASE.

IN COMMENTING UPON THE APPLICATION OF "BACK PAY" PROVISIONS OF THE ACT OF JUNE 10, 1948, IT IS STATED IN YOUR LETTER AS FOLLOWS:

IT WILL BE NOTED THAT SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, PROVIDES FOR CERTAIN PROCEDURES TO BE FOLLOWED IN REMOVING OR SUSPENDING A PERSON IN THE CLASSIFIED SERVICE. SECTION 6 (B) (1) PROVIDES THAT WHERE THE EMPLOYEE IS RESTORED AFTER FINDING THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED THE EMPLOYEE MUST BE PAID COMPENSATION FOR THE TIME LOST. THE SAME PROVISION WITH RESPECT TO "BACK PAY" IS MADE APPLICABLE TO PERSONS WHO ARE DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, PUBLIC LAW 359, 78TH CONGRESS. IT WILL ALSO BE NOTED THAT THE "BACK PAY" PROVISION APPLIES TO PERSONS RESTORED AFTER IMPROPER REMOVAL OR SUSPENSION IN A REDUCTION IN FORCE.

IT IS CLEAR TO THE COMMISSION THAT WHERE THE ENTIRE PROCEDURE, INCLUDING THE RESTORATION OF THE EMPLOYEE WAS COMPLETED PRIOR TO JUNE 10, 1948, THE EFFECTIVE DATE OF PUBLIC LAW 623, THE "BACK AY" PROVISIONS DO NOT APPLY. THIS IS MADE CLEAR BY THE LEGISLATIVE HISTORY OF PUBLIC LAW 623 ORIGINALLY PROVIDED THAT IT SHALL TAKE EFFECT RETROACTIVELY AS OF JANUARY 1, 1947. THE RETROACTIVE FEATURE WAS ELIMINATED BY THE HOUSE COMMITTEE ON POST OFFICES AND CIVIL SERVICE EXCEPT FOR (1) THE ADDITION OF EMPLOYEES "SUSPENDED WITHOUT PAY" TO THOSE "REMOVED," (2) THE ADDITION OF A 4TH STEP (ISSUANCE OF A PROMPT WRITTEN DECISION) IN THE PRESCRIBED PROCEDURE, AND (3) EXTENSION OF THE APPLICABILITY OF THE SECTION TO A PERSON WITHIN THE PURVIEW OF THE VETERANS' PREFERENCE ACT OF 1944 "ONLY IF HE SO ELECTS," SECTION 6 (A) OF THE AMENDING STATUTE IS A SUBSTANTIAL RESTATEMENT OF THAT PORTION OF SECTION 6 OF THE EARLIER STATUTE PRECEDING THE LANGUAGE RECITING THAT MEMBERSHIP IN CERTAIN POSTAL EMPLOYEES' ORGANIZATIONS SHALL NOT BE CAUSE FOR REMOVAL OR REDUCTION IN RANK, OF WHICH PORTION SECTIONS 6 (C) AND (D) OF THE NEW ACT ARE SUBSTANTIAL RESTATEMENTS.

HOWEVER, SECTION 6 (B), PARAGRAPHS (1), (2) AND (3), ARE NEW IN THEIR ENTIRETY. THEY CREATE A SUBSTANTIVE RIGHT WHERE NO RIGHT BEFORE EXISTED; THAT IS, THE RIGHT TO RECEIVE COMPENSATION IN CERTAIN CIRCUMSTANCES FOR PERIODS WHEN NO SERVICES WERE PERFORMED. THAT CONGRESS REGARDED ITSELF AS CREATING NEW SUBSTANTIVE RIGHTS IS MADE CLEAR FROM THE REPORT OF THE COMMITTEE ON POST OFFICES AND CIVIL SERVICE ON S. 1486, WHICH ULTIMATELY BECAME PUBLIC LAW 623 ( REPORT NO. 1436, 80TH CONG.) WHEREIN IT IS SAID (P.3):

THE PURPOSE OF THE PROPOSED LEGISLATION IS TO PROVIDE PAYMENT OF COMPENSATION COVERING PERIODS OF SEPARATION TO EMPLOYEES IMPROPERLY REMOVED OR SUSPENDED WITHOUT PAY FROM THE FEDERAL SERVICE, LESS AMOUNTS EARNED BY SUCH EMPLOYEES THROUGH EMPLOYMENT DURING SUCH PERIODS.

IT IS A SETTLED RULE OF ACCOUNTING OFFICERS IN THE FEDERAL GOVERNMENT THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY COMPENSATION MAY NOT BE PAID TO AN EMPLOYEE FOR THE PERIOD OF SUSPENSION OR REMOVAL DURING WHICH NO DUTY IS PERFORMED. HOWEVER, IN THE CASE OF UNJUSTIFIED SUSPENSION ANNUAL LEAVE MAY BE SUBSTITUTED TO THE EXTENT THAT IT IS AVAILABLE. THIS IS THE RULE, REGARDLESS OF THE MERITS IN CASES OF THOSE EMPLOYEES WHOSE REMOVAL OR SUSPENSION WITHOUT PAY WAS UNWARRANTED. THE COMMITTEE CONSIDERS THIS A MAJOR DEFICIENCY IN PRESENT LAW AND PROPOSES THIS LEGISLATION AS THE APPROPRIATE REMEDY.

THE CONGRESS ESTABLISHED, BY SAID ACT OF JUNE 10, 1948, THREE CONDITIONS UNDER WHICH THE NEW RIGHT IS TO VEST: (1) THE EMPLOYEE MUST BE REMOVED OR SUSPENDED WITHOUT PAY, (2) HE MUST MAKE ANSWER TO THE CHARGES OR REASONS PROFFERED FOR THE ACTION, OR APPEAL TO PROPER AUTHORITY, AND (3) HE MUST BE REINSTATED OR RESTORED ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. THE RIGHT IN ELIGIBLE CASES WILL THUS VEST CONTINGENTLY UPON THE REMOVAL OR SUSPENSION, AND ABSOLUTELY UPON THE REINSTATEMENT OR RESTORATION.

IT IS A FUNDAMENTAL CANON OF STATUTORY CONSTRUCTION THAT A STATUTE, INCLUDING AN AMENDATORY STATUTE, WILL BE CONSTRUED PROSPECTIVELY AND NOT RETROSPECTIVELY UNLESS REQUIRED IN EXPRESS TERMS OR BY NECESSARY IMPLICATION. UNITED STATES V. ST. LOUIS RAILWAY CO., 270 U.S. 1; 26 COMP. GEN. 595, AND CASES THEREIN CITED. ESPECIALLY IS THIS TRUE WHEN THE AMENDMENT CREATES NEW SUBSTANTIVE RIGHTS. IN WINFREE V. NORTHERN PAC. R. CO., 227 U.S. 296, 302, THE SUPREME COURT, SPEAKING OF AN AMENDATORY STATUTE, SAID:

* * * IT IS THE OPERATION OF THE STATUTE WHICH DETERMINES ITS CHARACTER. THE COURT OF APPEALS APTLY CHARACTERIZED IT, AND WE MAY QUOTE FROM ITS OPINION * * *: "IT IS A STATUTE WHICH PERMITS RECOVERY, IN CASES WHERE RECOVERY COULD NOT BE HAD BEFORE, AND TAKES AWAY FROM THE DEFENDANT DEFENSES WHICH FORMERLY WERE AVAILABLE, DEFENSES WHICH, IN THIS INSTANCE EXISTED AT THE TIME WHEN THE CONTRACT OF SERVICE WAS ENTERED INTO AND AT THE TIME WHEN THE ACCIDENT OCCURRED.' SUCH A STATUTE, UNDER THE RULE OF THE CASES, WOULD NOT BE CONSTRUED AS RETROSPECTIVE. IT INTRODUCED A NEW POLICY AND QUITE RADICALLY CHANGED THE EXISTING LAW. THERE IS NO LANGUAGE IN PUBLIC LAW 623 WHICH, EITHER EXPRESSLY OR BY NECESSARY IMPLICATION, REQUIRES THAT IT BE ACCORDED ANY RETROACTIVE EFFECT. IN FACT, THE LEGISLATIVE HISTORY OF THE STATUTE, AS POINTED OUT IN YOUR LETTER, NEGATIVES SUCH A CONCEPT--- NOT ONLY GENERALLY BUT SPECIFICALLY AS REGARDS PENDING CASES. IN HOUSE REPORT 1436, SUPRA, IT WAS SAID (P.5): THE COMMITTEE HAS BEEN INFORMED THAT SEVERAL CASES ARE PENDING IN FEDERAL COURTS IN WHICH THE PLAINTIFFS REQUEST DECISIONS REQUIRING THE GOVERNMENT TO PAY EMPLOYEES COMPENSATION FOR PERIODS OF UNWARRANTED SEPARATION FROM THE FEDERAL SERVICE. SINCE THIS QUESTION IS IN LITIGATION AND HAS NOT BEEN FINALLY DETERMINED BY THE COURTS, THE COMMITTEE DOES NOT DESIRE THE PROPOSED LEGISLATION TO BE CONSTRUED AS AFFECTING COURT DECISIONS WITH RESPECT TO CASES INVOLVING CLAIMS PENDING OR ARISING PRIOR TO THE EFFECTIVE DATE OF THE PROPOSED LEGISLATION.

THE COMMITTEE CONSIDERED THE QUESTION OF MAKING THE PROVISIONS OF THE BILL RETROACTIVE TO JANUARY 1, 1947, AS WAS PROVIDED FOR IN THE SENATE BILL. THE CIVIL SERVICE COMMISSION WAS UNABLE TO FURNISH THE COMMITTEE WITH STATISTICS WHICH WOULD SHOW THE NUMBER OF PERSONS WHO MIGHT BE AFFECTED BY SUCH RETROACTIVE PROVISION. THEREFORE, IT IS BELIEVED THAT ADDITIONAL INFORMATION WOULD BE REQUIRED TO JUSTIFY SUCH A PROVISION. WAS POINTED OUT THAT THERE IS NOT VALID REASON, IF THE RETROACTIVE PROVISION IS INCLUDED, WHY SUCH PROVISION SHOULD NOT BE EXTENDED TO THE BEGINNING OF THE WAR OR EVEN AS FAR BACK AS 1883.

FOLLOWING THE GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION, AND IN VIEW OF THE INDICATION THAT THE CONGRESS DID NOT INTEND THE LAW TO BE RETROACTIVE OR AFFECT PENDING CASES, I AM OF THE OPINION THAT NO RETROACTIVE EFFECT WHATSOEVER MAY BE GIVEN THE STATUTE SO AS TO COVER REMOVALS OR SUSPENSIONS ACCOMPLISHED PRIOR TO ITS EFFECTIVE DATE. THEREFORE, IN ANSWER TO YOUR FIRST THREE QUESTIONS, YOU ARE ADVISED THAT ONLY AN EMPLOYEE WHO WAS REMOVED OR SUSPENDED WITHOUT PAY AFTER JUNE 10, 1948, THE EFFECTIVE DATE OF THE STATUTE, ACQUIRES THE RIGHT, AFTER PROPER ANSWER OR APPEAL AND REINSTATEMENT OR RESTORATION BY COMPETENT AUTHORITY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, TO RECOVER COMPENSATION UNDER SECTION 6 (B), PARAGRAPH (1), (2), OR (3), FOR THE PERIOD FOR WHICH NO COMPENSATION WAS RECEIVED WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED.

QUESTION 4 READS:

IT WILL BE NOTED THAT THE "BACK PAY" PROVISIONS OF PUBLIC LAW 623 APPLY IN CASES OF IMPROPER DISMISSALS OR SUSPENSIONS. IT HAS BEEN REPRESENTED BY VARIOUS APPELLANTS THAT A DEMOTION CONSTITUTES IN EFFECT A DISMISSAL FROM THE POSITION FROM WHICH DEMOTED. DO THE "BACK PAY" PROVISIONS OF PUBLIC LAW 623 APPLY TO DEMOTIONS UNDER ANY CIRCUMSTANCES?

THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, CONTAINS NO REFERENCE TO DEMOTIONS OTHER THAN THE PROVISION IN SECTION 6 (A) THAT "REASONS FOR REDUCTION IN GRADE OR COMPENSATION" ARE TO MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR AGENCY. A SIMILAR PROVISION ALSO APPEARED IN THE STATUTE PRIOR TO THE AMENDMENT. IN THE CASE OF MAGHAN V. BOARD OF COMMISSIONERS OF DISTRICT OF COLUMBIA ET AL., 141 F.2D 274, THE COURT IN COMMENTING UPON THE REMOVAL PROVISIONS OF THE ACT OF AUGUST 24, 1912, PRIOR TO ITS AMENDMENT, STATED AS FOLLOWS:

* * * BOTH THE CIVIL SERVICE LAWS AND REGULATIONS REQUIRING HEARINGS AND PROVIDING THE SCOPE THEREOF RELATE TO REMOVALS AND NOT REDUCTIONS IN RANK OR COMPENSATION. AS TO THE LATTER, THE MOST THAT IS REQUIRED IS THAT THE REASONS FOR REDUCTION OR DEMOTION BE MADE ON THE RECORDS OF THE DEPARTMENT AND, UPON REQUEST, BE FURNISHED TO THE PERSON CONCERNED. THAT VIEW IS FOR ADOPTION BY THIS OFFICE IN THE ABSENCE OF ANY OTHER SUPERIOR AUTHORITY TO THE CONTRARY, AND LIKEWISE WOULD BE APPLICABLE TO THE ACT AFTER THE AMENDMENT OF JUNE 10, 1948. ACCORDINGLY, YOUR FOURTH QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 5:

SECTION 9 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, PROVIDES FOR THE ESTABLISHMENT OF UNIFORM SYSTEMS OF EFFICIENCY RATINGS, WHICH SHALL SET FORTH THE DEGREE OF EFFICIENCY WHICH SHALL CONSTITUTE GROUND FOR INCREASED COMPENSATION, CONTINUANCE AT THE EXISTING RATE OF COMPENSATION, DECREASE IN THE RATE OF COMPENSATION, AND DISMISSAL.

UNDER THE REGULATIONS ADOPTED PURSUANT TO SECTION 9 AN EFFICIENCY RATING OF FAIR MAY RESULT IN DEMOTION AND AN EFFICIENCY RATING OF UNSATISFACTORY MAY RESULT IN DISMISSAL. WHERE AN EMPLOYEE RECEIVES A RATING OF UNSATISFACTORY HE IS DISCHARGED ON THE BASIS OF THAT RATING WITHOUT FURTHER PROCEDURE. THE EMPLOYEE HAS THE RIGHT TO APPEAL THIS UNSATISFACTORY EFFICIENCY RATING TO AN EFFICIENCY RATING BOARD OF REVIEW AND THE DECISION OF THIS BOARD IS FINAL.

IF THE EFFICIENCY RATING BOARD OF REVIEW SHOULD CHANGE RATING TO "GOOD" AND THE EMPLOYEE IS RESTORED TO DUTY ON THE BASIS OF THE AMENDED EFFICIENCY RATING, WOULD THE "BACK PAY" PROVISIONS OF PUBLIC LAW 623 APPLY IN SUCH A CASE?

THIS QUESTION IS PRESENTED BECAUSE PUBLIC LAW 623 PROVIDES FOR "CHARGES" AND, IN THE CASE OF A DISMISSAL BECAUSE OF AN UNSATISFACTORY EFFICIENCY RATING THE EMPLOYE IS NOT USUALLY PRESENTED WITH CHARGES. HE IS SIMPLY TOLD THAT HE IS TO BE SEPARATED BECAUSE OF HIS UNSATISFACTORY EFFICIENCY RATING.

THE DISMISSAL OF AN EMPLOYEE BECAUSE OF HIS FAILURE TO ATTAIN THE PROPER DEGREE OF EFFICIENCY AS PROVIDED IN SECTION 9 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, 5 U.S.C. 669, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT THERETO, REASONABLY APPEARS TO CONSTITUTE "A REMOVAL FOR CAUSE TO PROMOTE THE EFFICIENCY OF THE SERVICE" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, PUBLIC LAW 623; CONSEQUENTLY, PERSONS COMING WITHIN THAT CATEGORY REASONABLY MAY BE HELD TO BE SUBJECT TO THE COMPENSATION PROVISIONS OF THE LATTER STATUTE.