B-111823, OCTOBER 27, 1952, 32 COMP. GEN. 210

B-111823, OCTOBER 27, 1952, 32 COMP. GEN. 210

REDUCTIONS IN RANK OR COMPENSATION - APPEALS BASED ON PROCEDURAL DEFECTS - RANK OR COMPENSATION RESTORATION WHILE THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, GIVES SPECIAL PREFERENCE TO VETERANS SUCH AS PRIOR NOTICE IN CONNECTION WITH DISCHARGE, FURLOUGH WITHOUT PAY, ETC., AND ALSO GRANTS CERTAIN RIGHTS OF APPEAL TO THE CIVIL SERVICE COMMISSION FROM ADVERSE ADMINISTRATIVE ACTIONS AND PROVIDES FOR MANDATORY COMPLIANCE WITH CORRECTIVE ACTION RECOMMENDED BY THE COMMISSION, THE STATUTE DOES NOT CONTAIN ANY PROVISION WHICH WOULD OBLIGATE THE SALARY APPROPRIATION FOR COMPENSATION LOST BY AN EMPLOYEE WHO IS DISCHARGED, SUSPENDED, FURLOUGHED, OR REDUCED IN RANK OR COMPENSATION AND WHO THEREAFTER, AS A RESULT OF APPEAL, IS REINSTATED OR RESTORED TO HIS FORMER POSITION, RANK OR RATE OF COMPENSATION. UNDER THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, AN AWARD OF RETROACTIVE COMPENSATION TO AN EMPLOYEE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED OR UNWARRANTED REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY IS NOT PROPER UNLESS THE RESTORATION RESULTS FROM A DETERMINATION ON THE MERITS RATHER THAN FROM A FINDING OF MERE PROCEDURAL DEFECTS, SO THAT AN EMPLOYEE WHO IS REDUCED IN RANK OR RATE OF COMPENSATION AND WHO AS A RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION UNDER THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, IS RESTORED TO HIS FORMER RANK OR RATE OF COMPENSATION IS NOT ENTITLED TO BACK PAY AS THE RESULT OF THE PROCEDURAL ERROR IN REDUCING HIS RANK OR RATE OF COMPENSATION.

COMPTROLLER GENERAL WARREN TO WILLIAM L. LODER, OCTOBER 27, 1952:

YOUR AFFIDAVIT DATED AUGUST 16, 1952, MAKING CLAIM FOR WAGES DUE, WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF APRIL 28, 1949, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN COMPENSATION PAID YOU AT THE PHILADELPHIA NAVAL SHIPYARD DURING THE PERIOD OCTOBER 28, 1946 TO MAY 18, 1947, AS LEADINGMAN RIGGER, AND THE COMPENSATION ALLEGED TO BE DUE UNDER THE RATING OF QUARTERMAN RIGGER FROM WHICH CLASSIFICATION YOU WERE DEMOTED.

THE RECORD SHOWS THAT YOU WERE RESTORED BY THE DEPARTMENT OF THE NAVY ON THE LATTER DATE TO THE HIGHER RATING AS A RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION BY A NUMBER OF PREFERENCE ELIGIBLE EMPLOYEES SIMILARLY AFFECTED, IN CONNECTION WITH WHICH IT WAS HELD BY THE COMMISSION THAT CERTAIN PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, HAD NOT BEEN COMPLIED WITH IN EFFECTING DEMOTIONS INCIDENT TO A READJUSTMENT OF THE NUMBER OF SUPERVISORS NECESSITATED BY THE REDUCTION OF ACTIVITIES AT THE SHIPYARD. THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM WAS FOR THE REASON THAT THE DECISIONS OF THIS OFFICE HAVE HELD THAT A RESTORATION FOLLOWING AN APPEAL UNDER THE ABOVE REFERRED-TO SECTION 14 IS EFFECTIVE ONLY FROM THE DATE OF RESTORATION AND CANNOT BE CONSIDERED AN AUTHORITY FOR RETROACTIVE PAY. COMP. GEN. 620.

SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, SUPRA, GIVES SPECIAL PREFERENCE TO VETERANS IN THE WAY OF PRIOR NOTICE IN CONNECTION WITH THEIR DISCHARGE, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH WITHOUT PAY, REDUCTION IN RANK OR COMPENSATION, OR DEBARMENT FOR FUTURE APPOINTMENT. ALSO, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 723, IT GRANTS TO SUCH PREFERENCE ELIGIBLE CERTAIN RIGHTS OF APPEAL TO THE CIVIL SERVICE COMMISSION FROM ADVERSE ADMINISTRATIVE ACTIONS AND PROVIDES FOR MANDATORY COMPLIANCE WITH CORRECTIVE ACTION RECOMMENDED BY THE COMMISSION. HOWEVER, THE STATUTE CONTAINS NO PROVISION, EXPRESS OR IMPLIED, WHICH WOULD SERVE TO OBLIGATE THE SALARY APPROPRIATION FOR THE COMPENSATION LOST BY AN EMPLOYEE WHO IS DISCHARGED, SUSPENDED, FURLOUGHED, OR REDUCED IN RANK OR COMPENSATION AND WHO THEREAFTER, AS A CONSEQUENCE OF APPEAL, IS REINSTATED OR RESTORED TO HIS FORMER POSITION, RANK, OR RATE OF COMPENSATION. COMP. GEN. 620, SUPRA; 28 ID. 489.

THE ACT OF JUNE 10, 1948, 62 STAT. 354, PROVIDES FOR MONETARY RELIEF IN CERTAIN OF THE SITUATIONS COVERED BY SECTION 14, NAMELY, THOSE IN WHICH THERE IS A REINSTATEMENT OR RESTORATION TO DUTY UPON THE GROUND THAT A DISCHARGE, SUSPENSION, OR FURLOUGH WITHOUT PAY WAS UNJUSTIFIED OR UNWARRANTED. THAT ACT IS NOT RETROACTIVELY EFFECTIVE (28 COMP. GEN. 200); HOWEVER, ITS PROVISIONS SERVE AS A YARDSTICK AGAINST WHICH CONGRESSIONAL INTENT RELATIVE TO "BACK PAY" IN SECTION 14 CASES MAY BE MEASURED. SPECIAL NOTE IN THAT CONNECTION AND IN PARTICULAR REFERENCE TO CLAIMS SUCH AS YOURS IS THE FACT THAT THE "BACK PAY" PROVISIONS OF THAT ACT WITH RESPECT TO SECTION 14 CASES MAKES NO REFERENCE TO REDUCTION IN RANK OR COMPENSATION. ALSO, THE 1948 ACT HAS NOT AUTHORIZED "BACK AY" IN THE CASE OF PROCEDURAL ERROR BUT ONLY WHEN THE REMOVAL OR OTHER ADVERSE ACTION WAS UNWARRANTED OR UNJUSTIFIED UPON THE MERITS. 29 COMP. GEN. 209.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF APRIL 28, 1949, MUST BE AND IS SUSTAINED.