B-129169, SEPTEMBER 20, 1956, 36 COMP. GEN. 225

B-129169, SEPTEMBER 20, 1956, 36 COMP. GEN. 225

OFFICERS AND EMPLOYEES - RESTORATIONS FOLLOWING SUMMARY SUSPENSION - COLE V. YOUNG DECISION - DEDUCTION OF LIFE INSURANCE PREMIUMS POSTAL SERVICE EMPLOYEES WHO ARE RESTORED TO NONSENSITIVE POSITIONS IN ACCORDANCE WITH THE SUPREME COURT DECISION IN COLE V. YOUNG, 351 U.S. 536, WHICH HELD THAT THE SUMMARY SUSPENSION AND DISMISSAL PROCEDURES OF EXECUTIVE ORDER NO. 10450 AND OF THE ACT OF AUGUST 26, 1950, COULD NOT BE EXTENDED TO EMPLOYEES IN NONSENSITIVE POSITIONS, ARE ENTITLED TO BACK PAY COMPUTED PURSUANT TO SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652. UNDER THE BACK PAY ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652, WHICH PROVIDES THAT EMPLOYEES ARE TO BE REGARDED AS RENDERING SERVICE DURING PERIODS OF UNJUSTIFIED REMOVALS OR SUSPENSIONS FROM THE SERVICE, EMPLOYEES ON REINSTATEMENT ARE REGARDED AS HAVING BEEN COVERED BY THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954 DURING THE PERIOD OF SEPARATION, AND DEDUCTION OF PREMIUMS FROM THE EMPLOYEE'S BACK PAY IS REQUIRED.

TO THE POSTMASTER GENERAL, SEPTEMBER 20, 1956:

ON SEPTEMBER 6, 1956, THE DEPUTY POSTMASTER GENERAL REQUESTED OUR DECISION REGARDING THE PROPER BASIS FOR COMPUTING THE BACK PAY OF EMPLOYEES WHO ARE TO BE RESTORED TO NONSENSITIVE POSITIONS IN THE POST OFFICE DEPARTMENT FROM WHICH THEY WERE REMOVED UNDER AUTHORITY OF EXECUTIVE ORDER NO. 10450, APRIL 27, 1953, 18 F.R. 2489. THE RESTORATION ACTION IS BEING TAKEN BECAUSE OF THE DECISION OF THE SUPREME COURT IN THE CASE OF COLE V. YOUNG, 351 U.S. 536, THAT THE SUSPENSION AND DISMISSAL PROCEDURES OF EXECUTIVE ORDER NO. 10450 AND THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, ET SEQ., COULD NOT BE EXTENDED TO EMPLOYEES IN NONSENSITIVE POSITIONS.

SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, AS AMENDED JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, CONTAINS THE BASIC LIMITATION ON THE REMOVAL OF CIVIL-SERVICE EMPLOYEES IN PERTINENT PART 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 * * * ( ITALICS ADDED.)

THE ACT THEN REQUIRES THAT BEFORE SUCH REMOVAL CAN BE ACCOMPLISHED THE EMPLOYEE MUST HAVE NOTICE OF INTENT TO REMOVE, A COPY OF THE CHARGES, A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO THE CHARGES, AND A WRITTEN DECISION ON SUCH ANSWER. SECTION 6 OF THE 1912 ACT, AS AMENDED, 5 U.S.C. 652 (B) (1), ALSO PROVIDES FOR MANDATORY PAYMENT OF BACK PAY AS FOLLOWS:

(B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO 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 DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIODS * * *.

ADDITIONAL PROTECTION IS AFFORDED BY SECTION 14 OF THE VETERANS PREFERENCE ACT OF JUNE 27, 1944, 58 STAT. 390, 5 U.S.C. 863, TO PREFERENCE ELIGIBLE EMPLOYEES AS FOLLOWS:

NO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE * * * SHALL BE DISCHARGED * * * EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE PERSON WHOSE DISCHARGE * * * IS SOUGHT SHALL HAVE AT LEAST THIRTY DAYS' ADVANCE WRITTEN NOTICE * * * STATING ANY AND ALL REASONS, SPECIFICALLY AND IN DETAIL, FOR ANY SUCH PROPOSED ACTION; * * *

THE 1944 ACT CONTINUES BY SETTING FORTH THE PROCEDURAL RIGHTS OF THE PREFERENCE ELIGIBLE TO RESPOND TO THE CHARGES AND TO APPEAL AN ADVERSE DECISION TO THE CIVIL SERVICE COMMISSION, ETC. A PREFERENCE ELIGIBLE WHO HAS BEEN RESTORED TO A POSITION ON THE GROUND HIS REMOVAL WAS UNJUSTIFIED IS ENTITLED TO BACK PAY UNDER SECTION 6 (B) (2) OF THE 1912 ACT, 5 U.S.C. 652 (B) (2), WHICH IS SUBSTANTIALLY IDENTICAL WITH SECTION 6 (B) (1) QUOTED ABOVE. SECTION 1 OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, REMOVED THE PROCEDURAL PROTECTION AFFORDED IN REMOVAL CASES BY THE 1912 ACT, SUPRA, AND THE 1944 ACT, SUPRA, TO CIVIL-SERVICE EMPLOYEES WHO ARE EMPLOYED IN SPECIFIED DEPARTMENTS AND AGENCIES, NOT INCLUDING THE POST OFFICE DEPARTMENT. THE 1950 ACT GAVE TO THE HEADS OF CERTAIN DEPARTMENTS AND AGENCIES OF THE GOVERNMENT SUMMARY SUSPENSION AND UNREVIEWABLE DISMISSAL POWERS OVER THEIR CIVILIAN EMPLOYEES, WHEN DEEMED NECESSARY "IN THE INTEREST OF NATIONAL SECURITY.' THE 1950 ACT ALSO PROVIDED THAT WHEN, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, AN EMPLOYEE, WHO HAS BEEN SUSPENDED AS ABOVE, IS REINSTATED, HE IS ENTITLED TO COMPENSATION AS FOLLOWS:

* * * THAT ANY PERSON * * * SO REINSTATED * * * SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON: * * *

THERE IS NO WAY IN WHICH THE HEAD OF AN AGENCY SPECIFIED IN THE 1950 ACT MAY BE REQUIRED TO REINSTATE AN EMPLOYEE WHO HAS BEEN REMOVED "IN THE INTEREST OF NATIONAL SECURITY.'

PURSUANT TO SECTION 22-3 OF THE 1950 ACT, 5 U.S.C. 22-3, THE PRESIDENT, BY EXECUTIVE ORDER NO. 10450, EXTENDED THE COVERAGE OF THE ACT TO ALL EXECUTIVE DEPARTMENTS AND AGENCIES. THE SUPREME COURT IN COLE V. YOUNG, SUPRA, CONSIDERED THE SUMMARY DISMISSAL OF A PREFERENCE ELIGIBLE FROM A NONSENSITIVE POSITION IN A DEPARTMENT NOT SPECIFIED IN THE 1950 ACT, BUT WHICH WAS COVERED BY EXECUTIVE ORDER NO. 10450. THE COURT CONCLUDED IN PART AS FOLLOWS:

* * * (1) THAT THE TERM "NATIONAL SECURITY" IS USED IN THE ACT IN A DEFINITE AND LIMITED SENSE AND RELATES ONLY TO THOSE ACTIVITIES WHICH ARE DIRECTLY CONCERNED WITH THE NATION'S SAFETY, AS DISTINGUISHED FROM THE GENERAL WELFARE; AND (2) THAT NO DETERMINATION HAS BEEN MADE THAT PETITIONER'S POSITION WAS AFFECTED WITH THE "NATIONAL SECURITY" AS THAT TERM IS USED IN THE ACT. IT FOLLOWS THAT HIS DISMISSAL WAS NOT AUTHORIZED BY THE 1950 ACT AND HENCE VIOLATED THE VETERAN'S PREFERENCE ACT.

SINCE THE 1950 ACT PROVIDED A METHOD OF DISMISSAL EXPRESSLY FORBIDDEN BY THE ACTS OF 1912 AND 1944, SUPRA, A SUMMARY DISMISSAL NOT AUTHORIZED BY THE 1950 ACT VIOLATES EITHER OR BOTH THE 1912 ACT AND 1944 ACT. A PERSON SO DISMISSED IS ENTITLED TO BACK PAY AS COMPUTED BY THE METHOD PROVIDED IN SECTION 6 OF THE 1912 ACT, SUPRA. ONLY THOSE PERSONS WHOSE DISMISSAL WAS AUTHORIZED BY THE 1950 ACT AND WHO ARE RESTORED AT THE DISCRETION OF THE AGENCY HEAD ARE ENTITLED TO BACK PAY AS PRESCRIBED BY THE 1950 ACT.

WE CONCLUDE THAT THE BACK PAY OF EMPLOYEES TO BE RESTORED TO NONSENSITIVE POSITIONS IN THE POST OFFICE DEPARTMENT IS TO BE COMPUTED UNDER SECTION 6 OF THE 1912 ACT, I.E., AT THE RATE OF COMPENSATION RECEIVED ON THE DATE OF REMOVAL. NO ALLOWANCE CAN BE MADE FOR GENERAL SALARY INCREASES DURING THE PERIOD OF SEPARATION, 28 COMP. GEN. 333, NOR MAY ANY ALLOWANCE BE MADE FOR STEP INCREASES WHICH WOULD HAVE ACCRUED DURING THE PERIOD OF SEPARATION.

IN ACCORDANCE WITH OUR EARLIER DECISIONS, DEDUCTIONS FROM THE COMPENSATION PAYABLE UPON RESTORATION SHOULD INCLUDE RETIREMENT DEDUCTIONS, 28 COMP. GEN. 333, 32 ID. 390, 34 ID. 657, PAYMENTS MADE AS LUMP SUM LEAVE PAYMENTS WITH LEAVE SO REPRESENTED BEING RECREDITED TO THE EMPLOYEE'S LEAVE ACCOUNT SUBJECT TO THE MAXIMUM ACCUMULATION LIMITATION OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AS AMENDED, 5 U.S.C. 2062 (C), 34 COMP. GEN. 303; 34 ID. 657; AND DEDUCTION OF FEDERAL INCOME TAX, 34 COMP. GEN. 657; 35 ID. 241.

THE QUESTION THAT THE DEPUTY POSTMASTER GENERAL RAISES IN HIS LETTER AS TO DEDUCTIONS FOR FEDERAL EMPLOYEES GROUP LIFE INSURANCE IS PROPERLY FOR THE CONSIDERATION OF THE CIVIL SERVICE COMMISSION WHICH IS CHARGED WITH THE RESPONSIBILITY OF ADMINISTERING THE ACT. WE HAVE NOT HAD THE OPPORTUNITY TO CONSIDER THIS QUESTION BEFORE, BUT IN VIEW OF THE LANGUAGE QUOTED ABOVE FROM SECTION 6 OF THE 1912 ACT,"AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD," OUR OPINION IS THAT THE EMPLOYEES TO BE REINSTATED HAVE BEEN COVERED BY THE LIFE INSURANCE ACT DURING THE PERIOD OF THEIR SEPARATION AND, THEREFORE, A DEDUCTION OF THE PREMIUM FOR THIS PERIOD IS REQUIRED.