B-134614, MAR. 3, 1958

B-134614, MAR. 3, 1958

TO THE SECRETARY OF STATE:

ON DECEMBER 6, 1957, THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR DECISION ON CERTAIN QUESTIONS CONCERNING THE SALARY RATE, LEAVE, RETIREMENT, TRAVEL, AND BACK SALARY IN THE CASE OF MR. JOHN S. SERVICE UPON HIS RESTORATION.

MR. SERVICE, A FOREIGN SERVICE OFFICER, CLASS 2, WAS SEPARATED FROM THE FOREIGN SERVICE EFFECTIVE AT THE CLOSE OF BUSINESS DECEMBER 14, 1951, PURPORTEDLY UNDER AUTHORITY OF EXECUTIVE ORDER NO. 9835, AS AMENDED, AND SECTION 103 OF PUBLIC LAW 188, 82D CONGRESS, 65 STAT. 581, COMMONLY KNOWN AS THE MCCARRAN RIDER. THE SUPREME COURT OF THE UNITED STATES HELD ON JUNE 17, 1957, THAT THE SEPARATION WAS INVALID, AND REMANDED THE CASE TO THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR FURTHER PROCEEDINGS. SERVICE V. DULLES, 354 U.S. 363. ON JULY 3, 1957, THE DISTRICT COURT ENTERED AN ORDER READING IN PERTINENT PART AS FOLLOWS:

"3. THE ACTION OF THE SECRETARY OF STATE AND HIS SUBORDINATES PURPORTING TO TERMINATE PLAINTIFF'S APPOINTMENT AS A CAREER OFFICER OF THE FOREIGN SERVICE WITH RETIREMENT RIGHTS, EFFECTIVE AT THE CLOSE OF BUSINESS ON DECEMBER 14, 1951, WAS INVALID AND WITHOUT LEGAL EFFECT AND PLAINTIFF SHALL BE DEEMED SINCE THE DATE OF SUCH ACTION TO HAVE BEEN A FOREIGN SERVICE OFFICER-CLASS 2, AND NOW TO BE SUCH AN OFFICER.

"4. THE SECRETARY OF STATE SHALL TAKE OR CAUSE TO BE TAKEN ALL ACTION NECESSARY OR APPROPRIATE TO GIVE EFFECT TO THE DECLARATORY JUDGMENT CONTAINED IN PARAGRAPH 3. HEREOF INCLUDING, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (1) RESTORATION, EFFECTIVE AT THE CLOSE OF BUSINESS ON DECEMBER 14, 1951, OF PLAINTIFF AS A FOREIGN SERVICE OFFICER-- - CLASS 2, OR A POSITION OF LIKE GRADE AND CHARACTER, WITH THE BENEFIT OF ALL RIGHTS, EMOLUMENTS AND PRIVILEGES FLOWING FROM A CONTINUITY OF SERVICE AS A FOREIGN SERVICE OFFICER--- CLASS 2, FROM THE TIME OF HIS WRONGFUL DISCHARGE FROM THE DEPARTMENT OF STATE ON DECEMBER 14, 1951, TO THE DATE OF THIS ORDER, PROVIDED THAT PLAINTIFF'S CLAIM FOR BACK PAY IS DENIED FOR LACK OF JURISDICTION, (2) EXPUNGING FROM THE RECORDS OF THE DEPARTMENT OF STATE ALL EVIDENCE OF THE INVALID ACTION OF THE SECRETARY OF STATE REFERRED TO IN PARAGRAPH 3. HEREOF, AND (3) CORRECTING THE RECORDS OF THE DEPARTMENT OF STATE TO REFLECT THE RESTORATION OF PLAINTIFF AS ORDERED IN THIS PARAGRAPH.'

PURSUANT TO THAT ORDER, THE DEPARTMENT OF STATE ISSUED A NOTIFICATION OF PERSONNEL ACTION (FORM DS-1032) DATED JULY 9, 1957, CANCELING THE TERMINATION ACTION AND ASSIGNING MR. SERVICE, UNDER AUTHORITY OF SECTION 571 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 961, TO A POSITION IN THE DEPARTMENT EFFECTIVE JULY 9, 1957. HIS SALARY AS A FOREIGN SERVICE OFFICER, CLASS 2, WAS TENTATIVELY SET AT $12,900, A RATE DERIVED THROUGH THE ADJUSTMENT OF THE SALARY RATE IN EFFECT AT DATE OF TERMINATION, $11,850, BY SECTION 7 OF THE ACT OF JUNE 28, 1955 (PUBLIC LAW 94), 69 STAT. 178, TO $12,740 AND FURTHER ADJUSTED BY SECTION 3 OF THE ACT OF JULY 28, 1956 (PUBLIC LAW 828), 70 STAT. 704. IN-CLASS SALARY INCREASES AUTHORIZED BY SECTION 625 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 995, AND THE FOREIGN SERVICE REGULATIONS HAVE NOT BEEN REFLECTED IN THE SALARY RATE.

ON JANUARY 10, 1958, SUBSEQUENT TO THE RECEIPT OF YOUR DEPARTMENT'S LETTER, THE ASSISTANT ATTORNEY GENERAL TRANSMITTED TO US A COPY OF A PETITION FILED DECEMBER 9, 1957, IN THE UNITED STATES COURT OF CLAIMS- - JOHN S. SERVICE V. THE UNITED STATES, C.CLS. NO. 562-57--- WHEREIN THE PLAINTIFF SEEKS TO RECOVER BACK SALARY FOR THE ENTIRE PERIOD OF ILLEGAL REMOVAL. SINCE MR. SERVICE'S STATUS DURING THE PERIOD OF REMOVAL FOR SALARY PAYMENT PURPOSES AFFECTS THE ANSWERS TO SEVERAL ITEMS CONTAINED IN YOUR DEPARTMENT'S REQUEST FOR DECISION, AND SINCE OUR POLICY IS NOT TO RENDER DECISIONS ON MATTERS WHICH ARE THE SUBJECT OF ACTIVE LITIGATION, OUR REPLY AT THIS TIME WILL BE CONFINED TO THOSE ITEMS NOT INVOLVED IN THE PENDING COURT ACTION.

CONCERNING THE LUMP-SUM LEAVE PAYMENT OF $5,742.84, REPRESENTING 178 CALENDAR DAYS, TO MR. SERVICE, HE IS OBLIGATED AS AN INCIDENT TO THE INVALIDATION OF HIS SEPARATION TO REFUND THE GROSS AMOUNT OF THE LUMP SUM PAYMENT. SUBJECT TO THE MAXIMUM LIMITATION AND LEAVE CEILING HE IS ENTITLED TO BE RECREDITED WITH THE ANNUAL LEAVE EQUIVALENT WHEN THE ENTIRE REFUND HAS BEEN MADE. LEVERETTE V. UNITED STATES, 135 C.CLS. 207, 212; 32 COMP. GEN. 22; 34 ID. 17. WE ARE REPORTING THE LUMP-SUM PAYMENT TO THE ATTORNEY GENERAL AS A POSSIBLE OFFSET AGAINST ANY RECOVER ALLOWED IN THE PENDING SUIT; THEREFORE, YOUR DEPARTMENT SHOULD IMMEDIATELY INFORM THAT OFFICIAL IF AND WHEN A DIRECT REFUND OF THE LUMP-SUM PAYMENT IS MADE.

AS TO THE LEAVE WITHOUT PAY GRANTED AT THE REQUEST OF MR. SERVICE FROM JULY 10 TO AUGUST 30, 1957, THE DEPARTMENTAL REGULATIONS, 1 FSM IV 471.33, PERMIT THE GRANTING OF LEAVE WITHOUT PAY REGARDLESS OF WHETHER THE EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT. IN THIS CASE, OUR OFFICE WOULD NOT OBJECT TO THE DEPARTMENTAL PROPOSAL THAT UPON REFUND OF THE LUMP-SUM PAYMENT THAT A PART OF THE RESULTING LEAVE CREDIT BE USED TO MAKE A RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE FOR THE LEAVE WITHOUT PAY. MAY OBSERVE THAT THE RESULT OF THIS SUBSTITUTION WOULD BE A REDUCTION OF MR. SERVICE'S ANNUAL LEAVE CEILING.

WE CONCUR WITH YOUR DEPARTMENT'S PROPOSAL TO REACTIVATE THE SICK LEAVE BALANCE AS OF DECEMBER 14, 1951.

THE MATTER OF ANNUAL AND SICK LEAVE ACCRUALS DURING THE PERIOD OF SEPARATION WILL BE FOR DETERMINATION AFTER THE BACK PAY ISSUE HAS BEEN DECIDED.

CONCERNING RETIREMENT FUNDS, WE CONCUR WITH THE DEPARTMENTAL PROPOSAL TO RECREDIT MR. SERVICE FOR THE PERIOD OF SERVICE PRIOR TO DECEMBER 15, 1951, UPON HIS REDEPOSIT INTO THE FUND OF THE TOTAL AMOUNT WITHDRAWN.

APPROPRIATIONS FOR THE EXPENSES OF TRAVEL OF FOREIGN SERVICE OFFICERS AND THEIR FAMILIES AND OF TRANSPORTATION OF EFFECTS ARE AVAILABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 1136, AND REGULATIONS PROMULGATED BY THE SECRETARY OF STATE PURSUANT THERETO. NONE OF THE PROVISIONS OF THE LAW OR THE FOREIGN SERVICE TRAVEL REGULATIONS (1 FSM III 180) AUTHORIZES THE PAYMENT OF EXPENSES OF TRAVEL AND TRANSPORTATION FROM PLACE OF RESIDENCE TO POST OF DUTY UPON RESTORATION TO DUTY UNDER THE CIRCUMSTANCES PRESENTED. IN THE ABSENCE OF SUCH AUTHORITY, APPROPRIATED FUNDS MAY NOT BE CONSIDERED AS AVAILABLE FOR THE EXPENSES IN QUESTION.

WHILE THE MATTER IS NOT DISCUSSED IN THE ASSISTANT SECRETARY'S LETTER, THE QUESTION ARISES WHETHER MR. SERVICE IS NOT OBLIGATED TO REPAY THE AMOUNTS EXPENDED FROM APPROPRIATED FUNDS FOR TRAVEL AND TRANSPORTATION FROM WASHINGTON TO NEW YORK UPON REMOVAL. THE AUTHORIZATION DATED DECEMBER 14, 1951, FOR TRAVEL AND TRANSPORTATION BECAUSE OF "TERMINATION" PRESUMABLY WAS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 103. 607 (K) (III) OF THE FOREIGN SERVICE TRAVEL REGULATIONS IN EFFECT AT THE TIME (APPARENTLY THOSE PROMULGATED UNDER TM 349, DATED JULY 21, 1950) APPLICABLE IN THE CASE OF AN OFFICER WHO "IS SEPARATED FROM THE SERVICE.' SINCE THE ORDER OF THE DISTRICT COURT ISSUED IN PURSUANCE OF THE DECISION OF THE SUPREME COURT HAS ABROGATED THE SEPARATION, THE BASIS FOR THE PAYMENT IN THE FIRST INSTANCE, THAT IS, A SEPARATION FROM SERVICE, APPEARS TO HAVE BEEN NULLIFIED; AND NO OTHER PROVISIONS OF LAW OR REGULATIONS SEEMS TO COVER THE CIRCUMSTANCES OF THIS CASE. IN VIEW OF THE QUESTION THUS ARISING WE ARE DIRECTING THE MATTER TO THE ATTENTION OF THE ATTORNEY GENERAL AS A POSSIBLE COUNTERCLAIM IN THE PENDING SUIT.