B-95484, JAN. 12, 1956

B-95484, JAN. 12, 1956

TO MR. CALVIN C. UPTON, JR.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1955, TRANSMITTED HERE BY LETTER DATED NOVEMBER 23, FROM THE HONORABLE EDWARD J. ROBESON, JR., HOUSE OF REPRESENTATIVES, CLAIMING ADDITIONAL COMPENSATION FOR THE PERIOD DURING WHICH YOU WERE DEMOTED AS AN EMPLOYEE OF THE NORFOLK NAVAL SHIPYARD.

THE RECORD SHOWS THAT YOU WERE DEMOTED FROM MACHINIST TO HELPER MACHINIST EFFECTIVE JULY 15, 1946. YOU WERE RESTORED TO THE MACHINIST POSITION EFFECTIVE MAY 3, 1948. YOUR CLAIM IS FOR THE RECOVERY OF THE DIFFERENCE IN WAGES OF THOSE POSITIONS FOR THE PERIOD OF THE ALLEGED IMPROPER DEMOTION.

THE STATEMENTS IN YOUR LETTER ARE SUBSTANTIALLY THE SAME AS THOSE CONTAINED IN YOUR LETTER OF DECEMBER 17, 1949, TO US, COVERING THE ADDITIONAL COMPENSATION IN QUESTION. THAT CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 14, 1950, WHICH WAS SUSTAINED BY OUR OFFICE ON JUNE 23, 1950, UPON THE GROUND THAT IN THE CIRCUMSTANCES THE SALARY ATTACHED TO THE POSITION IN WHICH SERVICES WERE PERFORMED IS ALL THAT MAY BE ALLOWED UNDER THE LAW.

YOUR PRESENT AND PRIOR CLAIMS ARE PREDICATED UPON THE SAME FACTS AND CIRCUMSTANCES WHICH WERE FULLY REVIEWED BY THE CIVIL SERVICE COMMISSION, PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 5 U.S.C. 863. YOU FIRST APPEALED THE DEMOTION ACTION TO THE REGIONAL DIRECTOR OF THE COMMISSION ON AUGUST 17, 1947. CONCLUDED THAT YOUR ALLEGATION OF PRESSURE OR COERCION ON THE PART OF THE ADMINISTRATIVE OFFICIALS WAS NOT SUBSTANTIATED BY THE EVIDENCE. THE REGIONAL DIRECTOR HELD THAT THE EVIDENCE DID NOT SHOW THAT THE ADMINISTRATIVE OFFICIALS ACTED IN BAD FAITH IN SUGGESTING THAT YOU VOLUNTARILY APPLY FOR REDUCTION TO MACHINIST HELPER, AND THAT THE DEMOTION RESULTED FROM YOUR VOLUNTARY APPLICATION. ALSO, HE DETERMINED THAT SINCE NO ADVERSE DECISION OF THE ADMINISTRATIVE OFFICERS WAS INVOLVED "THERE CAN BE NO APPEAL BY THE EMPLOYEE UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT AND IT IS SO HELD.'

THE REGIONAL DIRECTOR'S DECISION WAS AFFIRMED BY THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, ON APRIL 20, 1948. HOWEVER, SINCE YOU HAD ACTED UPON THE ADVICE OF YOUR SUPERVISOR WHO ERRONEOUSLY THOUGHT YOU WOULD BE REACHED IN A REDUCTION IN FORCE, WHICH DID NOT MATERIALIZE, THE BOARD SAID "THE COMMISSION BELIEVES THERE IS A MORAL OBLIGATION ON THE PART OF THE NAVAL SHIPYARD" TO RESTORE YOU TO YOUR FORMER RATING. EFFECTIVE MAY 3, 1948, YOU WERE SO RESTORED.

THE RECORD FURTHER SHOWS THAT THE EXECUTIVE ASSISTANT OF THE CIVIL SERVICE COMMISSION, BY DIRECTION OF THE COMMISSION, ADVISED YOU IN LETTER DATED AUGUST 24, 1949, THAT "IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES IN YOUR CASE IT IS NOT DEEMED APPROPRIATE TO MAKE YOUR RESTORATION EFFECTIVE RETROACTIVELY.' SUBSEQUENTLY, YOU INSTITUTED SUIT IN THE COURT OF CLAIMS FOR THE ADDITIONAL COMPENSATION FOR THE PERIOD HERE INVOLVED. YOUR PETITION IN THAT CASE WAS DISMISSED JUNE 7, 1955, PRIMARILY BECAUSE THE COURT LACKED JURISDICTION UNDER THE LAW, 28 U.S.C. 2501--- THE SUIT HAVING BEEN FILED MORE THAN SIX YEARS AFTER JULY 15, 1946. THE COURT POINTED OUT, NEVERTHELESS, THAT THE PLEADINGS AND ALLEGATIONS IN YOUR CASE DID NOT PRESENT A CASE OF COERCION, OR OF INVOLUNTARY DEMOTION, AS AVERRED IN YOUR PETITION TO THE COURT. THE COURT, IN ITS OPINION, SAYS "IT SEEMS RATHER EVIDENT THAT PLAINTIFF, AFTER DUE DELIBERATION, DECIDED HE WOULD PREFER TO TAKE THE LOWER RATING RATHER THAN TAKE CHANCES UPON A REDUCTION IN FORCE AND COMPLETE SEPARATION.'

UPON REVIEW OF YOUR CASE WE FIND NO REASONABLE BASIS IN THE RECORD FOR DISAGREEMENT WITH THE FINDINGS OF THE CIVIL SERVICE COMMISSION AND THE COURT OF CLAIMS. ACCORDINGLY, AND SINCE WE ARE NOT AWARE OF ANY PROVISION OF LAW AUTHORIZING PAYMENT OF ADDITIONAL COMPENSATION IN THE CASE OF A DEMOTION SUCH AS HERE PRESENTED, WE HEREBY AFFIRM THE DISALLOWANCE OF YOUR CLAIM.