B-114083, MAY 20, 1953

B-114083, MAY 20, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1953, STATING THAT A NUMBER OF PROBLEMS HAVE BEEN PRESENTED TO YOUR OFFICE RELATIVE TO THE PROPER APPLICATION OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, IN CASES WHERE EMPLOYEES ARE RESTORED TO DUTY FOLLOWING A DETERMINATION THAT THE SUSPENSION OR REMOVAL ACTION WAS UNJUSTIFIED OR UNWARRANTED AND REQUESTING ADVICE WITH RESPECT TO THE SPECIFIC QUESTIONS ASKED IN CONNECTION THEREWITH. CERTAIN OF THE PROBLEMS ALSO INVOLVE THE APPLICATION OF THE BACK-PAY PROVISIONS OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476.

THE PROBLEMS AND QUESTIONS, HEREINAFTER QUOTED FROM THE STATEMENT FURNISHED BY YOU, WILL BE CONSIDERED AND ANSWERED IN THE ORDER PRESENTED.

THE ACT OF JUNE 10, 1948, AMENDING SECTION 6 OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, IS APPLICABLE TO THE REMOVAL OR SUSPENSION FROM THE SERVICE OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE; ALSO, TO EMPLOYEES INVOLVED IN REDUCTIONS IN FORCE, AND TO EMPLOYEES DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 863. THE COMPENSATION PROVISIONS OF SAID ACT OF AUGUST 24, 1912, AS AMENDED, ARE, IN PERTINENT PART, AS FOLLOWS:

"ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY *** 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 BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD."

THE ACT OF AUGUST 26, 1950, IS APPLICABLE TO SUMMARY SUSPENSIONS FROM THE SERVICE AND REMOVALS IN THE INTEREST OF NATIONAL SECURITY AND, INSOFAR AS HERE PERTINENT, PROVIDES, AS FOLLOWS:

"*** PROVIDED FURTHER, THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED 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; ***"

QUESTION 1A READS AS FOLLOWS:

"AFFIDAVITS ARE SECURED FROM EMPLOYEES FOR THE PURPOSE OF ESTABLISHING THE AMOUNTS OF EARNINGS FROM OUTSIDE SOURCES. IN SOME CASES, THE AFFIDAVITS CONTAIN STATEMENTS TO THE EFFECT THAT AT THE TIME THE UNJUSTIFIED OR UNWARRANTED ACTION WAS TAKEN, INCOME WAS REGULARLY RECEIVED FROM AN OUTSIDE SOURCE TO SUPPLEMENT INCOME FROM THE FEDERAL POSITION. SUCH INCOME IS REPORTED AS BEING DERIVED FROM A VARIETY OF SOURCES, SUCH AS PERSONAL SERVICES PERFORMED FOR A PRIVATE EMPLOYER, FROM A BUSINESS IN WHICH THE EMPLOYEE HAS AN INVESTMENT, AND FROM HOBBY WORK. IN COMPUTING THE AMOUNT OF RETROACTIVE PAY DUE EMPLOYEES, SHOULD INCOME OF THE ABOVE- DESCRIBED NATURE BE CONSIDERED AS INCOME FROM OTHER EMPLOYMENT DURING THE PERIOD OF SUSPENSION OR REMOVAL? THE ATTITUDE OF THE UNITED STATES COURT OF CLAIMS AS REFLECTED IN THE CASE OF JOHN DANIEL JACKSON V. THE UNITED STATES (CT. CLS. NO. 49254) HAS BEEN NOTED."

THE LANGUAGE OF THE ACT OF JUNE 10, 1948, PERTINENT TO THIS QUESTION, IS THAT "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 BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD." NOTHING IS FOUND IN THE LEGISLATIVE HISTORY OF THE AMENDING LEGISLATION WHICH CLARIFIES THIS MATTER BUT IT IS THE VIEW OF THIS OFFICE THAT GENERALLY, OTHER INCOME WHICH IS BEING RECEIVED BY AN EMPLOYEE AT THE TIME OF HIS REMOVAL OR SUSPENSION FROM THE SERVICE WOULD NOT BE FOR DEDUCTION FROM AMOUNTS OTHERWISE ALLOWABLE UNDER SUCH ACT. SEE B-114120, MARCH 25, 1953, 32 COMP. GEN. . THIS SEEMS TO BE IN LINE WITH THE ATTITUDE REFLECTED IN THE CASE OF JACKSON V. UNITED STATES, 121 C. CLS. 405. ACCORDINGLY, QUESTION 1A IS ANSWERED IN THE NEGATIVE.

QUESTION 1B READS AS FOLLOWS:

"ALMOST INVARIABLY EMPLOYEES REPORT EXPENSES AS A RESULT OF THE UNJUSTIFIED OR UNWARRANTED SUSPENSION OR REMOVAL INVOLVING LEGAL FEES INCURRED IN PROCESSING APPEALS AGAINST THE REMOVAL OR SUSPENSION, FEES TO EMPLOYMENT AGENCIES FOR POSITIONS SECURED, CLASSIFIED ADVERTISING CHARGES FOR SITUATIONS WANTED, AND, IN SOME CASES, COSTS OF TOOLS, EQUIPMENT AND SUPPLIES REQUIRED IN ORDER TO SECURE A POSITION DURING THE PERIOD INVOLVED. YOUR DECISION IS REQUESTED AS TO WHETHER THE DEPARTMENT WOULD BE ACTING PROPERLY IN SUBTRACTING FROM OUTSIDE EARNINGS THE ABOVE- DESCRIBED EXPENSES WHICH ARE CLOSELY IDENTIFIABLE WITH THE ENFORCED SUSPENSION OR REMOVAL ACTION. IN NO CASE WOULD THE DEPARTMENT CONSIDER INCREASING THE CHARGE TO THE APPROPRIATION FROM WHICH THE EMPLOYEE IS PAID BEYOND THAT WHICH WOULD HAVE BEEN INCURRED HAD NOT THE SUSPENSION OR REMOVAL BEEN EFFECTED."

THE LANGUAGE OF THE ACT OF JUNE 10, 1948, HERE PERTINENT IS IDENTICAL WITH THE LANGUAGE APPLICABLE TO QUESTION 1A. THERE IS NOTHING IN SAID LANGUAGE PROVIDING FOR THE REDUCTION OF THE AMOUNT EARNED BY DEDUCTION THEREFROM EXPENSES FOR THE SECURING OF POSITIONS DURING THE PERIOD OF REMOVAL OR SUSPENSION, AS IDENTIFIED IN YOUR QUESTION, NOR HAS ANYTHING BEEN FOUND IN THE LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT THE CONGRESS INTENDED SUCH DEDUCTIONS. ACCORDINGLY, QUESTION 1B IS ANSWERED IN THE NEGATIVE.

QUESTION 1C READS AS FOLLOWS:

"WOULD YOUR ANSWERS TO QUESTIONS 1A AND 1B BE ANY DIFFERENT IF THE AUTHORITY FOR RETROACTIVE PAY WERE THE ACT OF AUGUST 26, 1950 (64 STAT. 476)?"

AS TO QUESTION 1A THE ANSWER WOULD APPEAR TO BE THE SAME.

WITH RESPECT TO QUESTION 1B SINCE THE LANGUAGE PROVIDES FOR THE PAYMENT OF THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON IT WOULD APPEAR THAT SOME DEDUCTIONS WERE INTENDED BUT NOTHING IS FOUND IN THE LEGISLATIVE HISTORY IDENTIFYING SAID DEDUCTIONS. IT WOULD APPEAR REASONABLE HOWEVER, IN THE ABSENCE OF STATUTORY IDENTIFICATION OF SAID DEDUCTIONS, TO ALLOW DEDUCTIONS NORMALLY PERMITTED IN COMPUTING AN INDIVIDUAL'S INCOME FOR FEDERAL TAXATION PURPOSES.

QUESTION 2 READS AS FOLLOWS:

"IN DETERMINING AMOUNTS DUE UNDER EITHER OF THE ACTS, IS IT CONTEMPLATED THAT THE TOUR OF DUTY OF THE EMPLOYEE AT THE TIME THE UNJUSTIFIED OR UNWARRANTED ACTION WAS TAKEN, BE PROJECTED OVER THE ENTIRE PERIOD OF SUSPENSION OR REMOVAL SO AS TO ALLOW PAYMENT FOR REGULARLY SCHEDULED OVERTIME AND NIGHT DIFFERENTIAL, IF THE TOURS OF DUTY IN EFFECT AT THAT TIME PERMITTED SUCH PAYMENTS? THIS QUESTION RELATES TO BOTH CLASSIFICATION ACT AND WAGE BOARD EMPLOYEES."

IN VIEW OF THE SIMILARITY OF LANGUAGE IN THE TWO ACTS WITH RESPECT TO THE PAYMENT OF COMPENSATION FOR A PERIOD OF UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION, UPON RESTORATION, THE IMMEDIATE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 READS AS FOLLOWS:

"AN EMPLOYEE OF THE DEPARTMENT (MR. CHARLES FISCHER) WAS REMOVED FROM THE SERVICE ON 19 SEPTEMBER 1949. UPON APPEAL TO THE DEPARTMENT'S EMPLOYEE GRIEVANCE BOARD, THE REMOVAL ACTION WAS HELD TO HAVE BEEN UNWARRANTED. THE REMOVAL WAS THEREFORE CANCELED, AND THE EMPLOYEE WAS RESTORED TO DUTY. HAD NOT THE REMOVAL ACTION BEEN TAKEN, MR. FISCHER WOULD HAVE BEEN SEPARATED BY REDUCTION IN FORCE ON 30 NOVEMBER 1949, SINCE ON THAT DATE SEVEN EMPLOYEES ON THE RETENTION REGISTER WERE SEPARATED AND MR. FISCHER'S NAME APPEARED IN THE FIFTH POSITION FROM THE BOTTOM OF THE REGISTER. 16 AUGUST 1950 THE EMPLOYEE WHOSE NAME APPEARED IMMEDIATELY ABOVE MR. FISCHER'S ON THE REGISTER WAS RECALLED. THE EMPLOYEE IMMEDIATELY BELOW MR. FISCHER'S NAME HAD RETIRED. THE EMPLOYEE FOLLOWING THAT OF THE RETIREE WAS RECALLED TO DUTY ON 17 AUGUST 1950. HAD NOT MR. FISCHER BEEN IMPROPERLY REMOVED HE WOULD HAVE BEEN OFFERED REEMPLOYMENT ON 17 AUGUST 1950. THE DEPARTMENT HAS AUTHORIZED RETROACTIVE PAYMENT TO THE ABOVE INDIVIDUAL UNDER THE ACT OF JUNE 10, 1948 (62 STAT. 354) FOR THE PERIOD 20 SEPTEMBER - 30 NOVEMBER 1949 AND FROM 17 AUGUST 1950 TO THE DATE OF ACTUAL RETURN TO DUTY. YOUR ADVICE IS REQUESTED AS TO WHETHER THE DEPARTMENT'S ACTION CONSTITUTES COMPLIANCE WITH THE INTENT OF THE ACT OF JUNE 10, 1948 (62 STAT. 354), IT BEING REALIZED THAT OFFICIAL RECORDS OF THE DEPARTMENT SHOW CLEARLY THAT MR. FISCHER WOULD HAVE BEEN IN A NON-PAY STATUS FOR THE PERIOD BETWEEN THE TIME THE REDUCTION IN FORCE WAS EFFECTIVE (I.E., 30 NOVEMBER 1949) AND THE DATE AN EMPLOYEE BELOW MR. FISCHER ON THE REEMPLOYMENT REGISTER WAS RECALLED TO DUTY (I.E., 17 AUGUST 1950)."

BASED UPON THE FACTS AND CIRCUMSTANCES SET FORTH BY YOU, THE ADMINISTRATIVE ACTION AUTHORIZED WITH RESPECT TO THIS MATTER WOULD APPEAR TO CONSTITUTE COMPLIANCE WITH THE INTENT OF THE LAW INVOLVED.

QUESTION 4 READS AS FOLLOWS:

"A FURTHER QUESTION CONCERNS THE APPLICATION OF THE ACT OF JUNE 10, 1948 (62 STAT. 354) TO CASES INVOLVING ARREST OF EMPLOYEES ON CRIMINAL CHARGES. IN ONE TYPE OF SITUATION, THE EMPLOYEE IS CHARGED BY FEDERAL AUTHORITIES WITH AN OFFENSE RELATING TO HIS EMPLOYMENT (SUCH AS MISAPPROPRIATION OF GOVERNMENT FUNDS OR PROPERTY, RELEASE OF DATA TO UNAUTHORIZED PERSONS, ETC.); IN ANOTHER, THE OFFENSE MAY BE WHOLLY UNRELATED TO EMPLOYMENT (SUCH AS LARCENY, HOMICIDE, EMBEZZLEMENT OF PRIVATE FUNDS, BAD-CHECK WRITING AND THE LIKE) AND MAY ARISE IN EITHER FEDERAL OR STATE COURTS. IN NEARLY ALL CASES WHERE THE OFFENSE IS JOB CONNECTED, AND IN MANY INSTANCES WHERE IT IS NOT, INDICTMENT ON SUCH CHARGES RAISES SERIOUS DOUBT AS TO THE EMPLOYEE'S SUITABILITY FOR CONTINUED EMPLOYMENT, EVEN THOUGH HE MAY NOT BE INCARCERATED WHILE AWAITING TRIAL. WHERE THE EMPLOYEE IS HELD WITHOUT BAIL OR IS OTHERWISE UNABLE TO SECURE RELEASE THROUGH THAT MEANS, IT IS CLEAR THAT HE COULD NOT WORK AND THEREFORE MUST BE SUSPENDED OR REMOVED. IN EITHER CASE, WHEN THE EMPLOYEE IS LATER CLEARED AND RETURNED TO DUTY, EITHER THROUGH THE CHARGES BEING DROPPED OR TRIAL RESULTING IN ACQUITTAL, QUESTION ARISES AS TO WHETHER THE INTERVENING SUSPENSION OR REMOVAL IS TO BE REGARDED AS 'UNJUSTIFIED OR UNWARRANTED' FOR THE PURPOSES OF THE ACT OF JUNE 10, 1948 (62 STAT. 354). IN THIS CONNECTION, THE COURT OF CLAIMS HAS STATED BROADLY THAT THE APPOINTING OFFICER IS JUSTIFIED IN EFFECTING REMOVAL WHEN THE EMPLOYEE IS INDICTED ON CHARGES INVOLVING MALFEASANCE AND THAT SUBSEQUENT ACQUITTAL AND RESTORATION DOES NOT MAKE THE ACTION SO ILLEGAL OR UNWARRANTED AS TO REQUIRE REIMBURSEMENT (JOSEPH P. BRYANT V. THE UNITED STATES, CT. CLS. NO. 48892, DECIDED 3 JUNE 1952). THAT CASE DID NOT INVOLVE CONSTRUCTION OF THE ACT OF JUNE 10, 1948 (62 STAT. 354), BUT THE PRINCIPLE INVOLVED APPEARS TO BE THE SAME."

WHERE, UNDER AN INDICTMENT OR ARREST, AN EMPLOYEE IS INCARCERATED, THUS MAKING HIM UNAVAILABLE FOR WORK, SUCH UNAVAILABILITY WOULD HAVE THE EFFECT OF PREVENING PAYMENT TO HIM FOR THE PERIOD HE WAS INCARCERATED EVEN THOUGH HE WAS ACQUITTED OR RELEASED AND RESTORED TO DUTY, AND WHETHER OR NOT ADMINISTRATIVE ACTION WAS TAKEN TO SUSPEND OR REMOVE HIM. SEE B-99607, JANUARY 30, 1951. THIS IS TO, BECAUSE THE ACT DOES NOT CONTEMPLATE THAT THE EMPLOYEE BE PLACED IN ANY BETTER POSITION THAT HE WOULD HAVE BEEN HAD THE REMOVAL OR SUSPENSION ACTION NOT OCCURRED. FURTHER, WHERE AN EMPLOYEE IS CHARGED WITH ONE OF THE OFFENSES LISTED AND IS INDICATED OR ARRESTED, IS NOT INCARCERATED, AND OTHERWISE IS AVAILABLE FOR DUTY, BUT IS SUSPENDED OR REMOVED AND, THEREAFTER, IS CLEARED OF SUCH CHARGES AND RESTORED TO DUTY-IT BEING ADMINISTRATIVELY DETERMINED THAT SUCH PERIOD OF REMOVAL OR SUSPENSION WAS UNWARRANTED OR UNJUSTIFIED - PAYMENT FOR SUCH PERIOD WOULD APPEAR TO BE PROPER UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948. SEE 29 COMP. GEN. 209. CF. 116 C. CLS. 577; 122 ID. 460.

THE ANSWER TO QUESTION 4 MAKES IT UNNECESSARY TO ANSWER QUESTIONS 5A, 5B AND 5C.

QUESTION 6 READS AS FOLLOWS:

"THE FINAL QUESTION ON WHICH YOUR ADVICE IS SOUGHT CONCERNS RESTORATIONS FOLLOWING APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT. STATED IN YOUR DECISION OF 2 MARCH 1949 (28 COMP. GEN. 489), APPOINTING OFFICERS ARE REQUIRED IN SUCH CASES TO TAKE SUCH CORRECTIVE ACTIONS AS THE CIVIL SERVICE COMMISSION RECOMMENDS. WHERE RETROACTIVE RESTORATION IS RECOMMENDED ON THE MERITS OF THE CASE, AND AFFIRMATIVE ACTION IS TAKEN TO COMPLY THEREWITH, DOES IT FOLLOW THAT THE DEPARTMENT IS REQUIRED TO EFFECT BACK PAY FOR THE ENTIRE PERIOD OF REMOVAL? IN YOUR UNPUBLISHED DECISION OF 12 SEPTEMBER 1950, B-97815, TO THE SECRETARY OF THE NAVY, IT WAS RECOGNIZED THAT WHILE A REMOVAL COULD BE HELD TO BE UNWARRANTED, THE ACT OF JUNE 10, 1948 (62 STAT. 354) DID NOT PRECLUDE A DETERMINATION THAT A SUSPENSION FOR AT LEAST A PORTION OF THE PERIOD WAS THE PROPER ACTION. SINCE THE CIVIL SERVICE COMMISSION DOES NOT HAVE THE RESPONSIBILITY FOR AUTHORIZING 'BACK PAY', IT IS BELIEVED THAT THE ABOVE REFERENCED DECISION OF 12 SEPTEMBER 1950 WOULD BE APPLICABLE TO RESTORATIONS BASED ON CIVIL SERVICE COMMISSION RECOMMENDATIONS IN CASES WHERE THE FACTS IN THE CASE JUSTIFY THE CONCLUSION THAT A SUSPENSION ACTION RATHER THAN A REMOVAL WAS PROPER. IS SUCH A VIEW CONCURRED IN BY YOUR OFFICE?" WHERE RETROACTIVE RESTORATION IS RECOMMENDED UPON THE MERITS OF THE CASE, AND AFFIRMATIVE ADMINISTRATIVE ACTION IS TAKEN TO COMPLY THEREWITH, UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, IT FOLLOWS THAT THE AFFECTED EMPLOYEE IS ENTITLED TO BACK PAY FOR THE ENTIRE PERIOD OF REMOVAL. 29 COMP. GEN. 29; ID. 209; 32 ID. 210. WITH RESPECT TO YOUR COMMENTS RELATIVE TO THE APPLICATION OF THE CONCLUSIONS REACHED IN OFFICE DECISION DATED SEPTEMBER 12, 1950, B-97815, YOU MAY BE ADVISED THAT SUCH DECISION PRIMARILY WAS CONCERNED WITH THE METHOD OF COMPUTING THE AMOUNT DUE UNDER THE ACT OF JUNE 10, 1948. HOWEVER, IT WAS RECOGNIZED IN THAT CASE THAT THE ACTION IN REDUCING THE PENALTY TO THE EMPLOYEE FROM A REMOVAL TO A SUSPENSION FOR 30 DAYS WAS TAKEN BY THE REVIEWING AUTHORITIES OF THE NAVY DEPARTMENT, THERE HAVING BEEN NO APPEAL TO THE CIVIL SERVICE COMMISSION. IT WOULD SEEM THAT UNLESS THE COMMISSION IN ITS FINDING IN A CASE SHOULD RECOMMEND THAT A PART OF A REMOVAL PERIOD BE REGARDED AS A SUSPENSION THERE WOULD BE NO AUTHORITY FOR AN ADMINISTRATIVE OFFICE TO DO SO.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.