B-135972, MAY 26, 1958

B-135972, MAY 26, 1958

TO MRS. PAULINE FIFIELD:

SENATOR MORRIS COTTON HAS FORWARDED TO US YOUR UNSIGNED AND UNDATED STATEMENT IN WHICH YOU REQUEST RECONSIDERATION OF OUR SETTLEMENT TO YOU DATED AUGUST 8, 1957. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT OF SALARY AS A RESULT OF THE DEMOTION OF YOUR HUSBAND, LEWIS E. FIFIELD, NOW DECEASED, FOR THE PERIOD NOVEMBER 21, 1949, TO JANUARY 21, 1952, AS WELL AS FOR ADDITIONAL COMPENSATION FOR SERVICES RENDERED ON HOLIDAYS DURING WORLD WAR II, AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY.

THE RECORD SHOWS THAT THE DECEDENT WAS DEMOTED FROM LEADINGMAN ELECTRICIAN TO ELECTRICIAN ON NOVEMBER 21, 1949. IN ADDITION THE RECORD SHOWS THAT THE DECEDENT DID NOT MAKE AN APPEAL TO THE UNITED STATES CIVIL SERVICE COMMISSION CONCERNING HIS DEMOTION NOR WAS HE RESTORED TO A HIGHER GRADE UPON THE BASIS THAT SUCH DEMOTION WAS UNJUSTIFIED OR UNWARRANTED. THE RECORD DOES SHOW THAT ON JANUARY 21, 1952, YOUR LATE HUSBAND WAS PROMOTED TO THE POSITION OF ELECTRICIAN PLANNER AND ESTIMATOR AND IT IS ADMINISTRATIVELY POINTED OUT THAT SUCH ACTION WAS A PROMOTION TO ANOTHER POSITION AND NOT A RESTORATION RESULTING FROM AN APPEAL.

IN OUR DECISION 34 COMP. GEN. 561 WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

"A DEMOTED EMPLOYEE WHO IS ORDERED RETROACTIVELY RESTORED TO HIS FORMER POSITION AFTER A SUCCESSFUL APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, IS ENTITLED TO COMPENSATION FOR THE PERIOD OF THE UNJUSTIFIED DEMOTION PURSUANT TO THE AMENDATORY ACT OF AUGUST 4, 1947, COMPUTED ON THE BASIS OF THE AMOUNT WHICH WOULD HAVE BEEN EARNED FOR THE PERIOD IN THE GRADE FROM WHICH DEMOTED. 33 COMP. GEN. 192 AND 28 COMP. GEN. 489, MODIFIED.'

ACCORDINGLY, SINCE YOUR LATE HUSBAND WAS NOT RESTORED AS A RESULT OF A SUCCESSFUL APPEAL NO BASIS EXISTS, UPON THE PRESENT RECORD, FOR ALLOWANCE OF A SALARY ADJUSTMENT FOR THE PERIOD NOVEMBER 21, 1949, TO JANUARY 21, 1952.

THE COURT OF CLAIMS HAS JURISDICTION OVER SUITS OF THIS NATURE BUT IT MAY BE SAID THAT UNDER THE PROVISIONS OF 28 U.S.C. 2501, SUCH SUITS ARE TO BE FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUES.

REGARDING YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR SERVICES RENDERED BY YOUR LATE HUSBAND ON HOLIDAYS DURING WORLD WAR II, WHICH HOLIDAYS ARE NOT IDENTIFIED BY DAY OR YEAR, YOU ARE REMINDED THAT IT IS NOT THE DUTY OF OUR OFFICE TO REFUTE CLAIMS PRESENTED TO US FOR SETTLEMENT, OR THE ALLEGATIONS UPON WHICH CLAIMS ARE BASED, BUT RATHER IT IS FOR THE CLAIMANT TO PROVE HIS CLAIM AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. 18 COMP. GEN. 980. FURTHER, IT WOULD APPEAR THAT EVEN IF SUCH DAYS WERE IDENTIFIED YOUR CLAIM WOULD FALL WITHIN THE PROVISIONS OF THE ACT OF OCTOBER 9, 1950, 54 STAT. 1061, WHICH REQUIRES THAT ALL CLAIMS SHALL BE BARRED FOREVER UNLESS SUCH CLAIMS SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIMS ACCRUE. ACCORDINGLY, UPON THE PRESENT RECORD CONCERNING THE ALLEGED HOLIDAY SERVICES, NO BASIS EXISTS FOR ALLOWANCE OF THAT PART OF YOUR CLAIM.