B-148637, JUL. 25, 1966
Highlights
TO THE UNITED STATES CIVIL SERVICE COMMISSION: THE FOLLOWING COMMENTS ON THE REGULATIONS WHICH THE COMMISSION PROPOSES TO ISSUE UNDER THE BACK PAY ACT OF 1966 (PUB.L. 89-380) ARE SUBMITTED IN RESPONSE TO YOUR LETTER OF JUNE 28. IN THE FIRST SENTENCE OF SECTION 550.804 (A) CORRECTIVE ACTION FOLLOWING THE WORDS "LEAVE ACCOUNT" ON THE FOURTH LINE WE SUGGEST THAT THE FOLLOWING BE ADDED: (LIMITING THE ACCUMULATION TO THE MAXIMUM PRESCRIBED BY LAW OR REGULATION FOR SUCH OFFICER OR EMPLOYEE) THIS IS IN ORDER TO AVOID THE POSSIBILITY OF A CONSTRUCTION SUCH AS THAT OF THE COURT OF CLAIMS IN HYNNING V. FOR A PERIOD OF REMOVAL WAS UNDER OBLIGATION TO MITIGATE DAMAGES BY MAKING A REASONABLE EFFORT TO SECURE OTHER EMPLOYMENT.
B-148637, JUL. 25, 1966
TO THE UNITED STATES CIVIL SERVICE COMMISSION:
THE FOLLOWING COMMENTS ON THE REGULATIONS WHICH THE COMMISSION PROPOSES TO ISSUE UNDER THE BACK PAY ACT OF 1966 (PUB.L. 89-380) ARE SUBMITTED IN RESPONSE TO YOUR LETTER OF JUNE 28, 1966.
1. IN THE FIRST SENTENCE OF SECTION 550.804 (A) CORRECTIVE ACTION FOLLOWING THE WORDS "LEAVE ACCOUNT" ON THE FOURTH LINE WE SUGGEST THAT THE FOLLOWING BE ADDED:
(LIMITING THE ACCUMULATION TO THE MAXIMUM PRESCRIBED BY LAW OR REGULATION FOR SUCH OFFICER OR EMPLOYEE)
THIS IS IN ORDER TO AVOID THE POSSIBILITY OF A CONSTRUCTION SUCH AS THAT OF THE COURT OF CLAIMS IN HYNNING V. UNITED STATES, 141 CT.CL. 486 (OVERRULED IN ZEIGER V. UNITED STATES, 155 CT.CL. 353). ALSO SEE SECTION 3 (2), PUB.L. 89-380.
2. IN THE CASE OF SCHWARTZ V. UNITED STATES, 149 CT.CL. 145, THE COURT HELD THAT ONE CLAIMING BACK PAY UNDER THE 1950 BACK PAY STATUTE, 64 STAT. 476, FOR A PERIOD OF REMOVAL WAS UNDER OBLIGATION TO MITIGATE DAMAGES BY MAKING A REASONABLE EFFORT TO SECURE OTHER EMPLOYMENT. THEREFORE, WE HAVE RESERVATIONS CONCERNING THE PROPRIETY OF SECTION 550.804 (F) OF THE PROPOSED REGULATIONS. SINCE WE RECOGNIZE THE NECESSITY FOR PROMPT PROMULGATION OF THE REGULATIONS, WE SUGGEST THAT SECTION 550.804 (F) BE DELETED AT THIS TIME. WE WOULD BE GLAD TO GIVE FURTHER CONSIDERATION TO THIS AREA SHOULD YOU LATER DECIDE TO REQUEST OUR DECISION.
3. IN PART 531, PAY UNDER THE CLASSIFICATION ACT SYSTEM, SUBPART D, WITHIN-GRADE CREASES,"SECTION 531-407 (J)" SHOULD READ "SECTION 531.407 (G).' ALSO, THE WORD "WAIVER" IN THE FIRST LINE SHOULD BE REPLACED BY THE WORD "DETERMINATION.' WE SUGGEST THAT CONSIDERATION BE GIVEN TO INSERTING BEFORE THE WORDS "THE REQUIREMENT" LANGUAGE ALONG THE LINES OF "EXCEPT IN THOSE CASES IN WHICH THE EMPLOYEE PRIOR TO THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAD BEEN DENIED A WITHIN-GRADE INCREASE BECAUSE IT HAD BEEN DETERMINED HIS WORK WAS NOT OF AN ACCEPTABLE LEVEL OF COMPETENCE.'
LIKEWISE, FOR THE SAME REASON WE SUGGEST THAT A SIMILAR REVISION BE MADE IN THE LAST SENTENCE OF PARAGRAPH 4 BEGINNING ON PAGE 4 OF THE FEDERAL PERSONNEL MANUAL LETTER 550.