B-131309, MAY 6, 1957, 36 COMP. GEN. 762

B-131309, MAY 6, 1957, 36 COMP. GEN. 762

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - NONSENSITIVE POSITION RESTORATIONS - WITHOUT ACTUAL REPORTING TO DUTY - BACK PAY FORMER EMPLOYEES WHO ARE ENTITLED TO REINSTATEMENT BECAUSE OF IMPROPER REMOVAL FROM NONSENSITIVE POSITIONS PURSUANT TO THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, BUT WHO WOULD IMMEDIATELY RESIGN, ARE ENTITLED TO BACK PAY PURSUANT TO SECTION 6 (B) (1) OR (2) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, (5 U.S.C. 652 (B) (1) OR (2) (, ON THE OFFICIAL RECORDING OF THEIR REINSTATEMENTS WITHOUT AN ACTUAL RETURN TO DUTY.

TO THE SECRETARY OF THE AIR FORCE, MAY 6, 1957:

THE ASSISTANT SECRETARY'S LETTER OF MARCH 27, 1957, REFERS TO CASES IN WHICH--- CONSISTENT WITH THE HOLDING OF THE SUPREME COURT OF THE UNITED STATES IN COLE V. YOUNG, 351 U.S. 536, AND THE MEMORANDUM OF THE ATTORNEY GENERAL, SUBJECT: " CLAIMS FOR REINSTATEMENT BY FORMER FEDERAL EMPLOYEES DISMISSED UNDER EXECUTIVE ORDER 10450," DATED AUGUST 1, 1956--- YOUR DEPARTMENT ANTICIPATES THAT CLAIMS FOR RESTORATION AND BACK PAY MAY BE RECEIVED FROM FORMER EMPLOYEES WHO HAVE BEEN REMOVED FROM NONSENSITIVE POSITIONS UNDER THE PROVISIONS OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, AND EXECUTIVE ORDER NO. 10450, BUT WHO NOW MAY NOT DESIRE TO RETURN TO DUTY IN THEIR POSITIONS.

THE LETTER READS IN PART AS FOLLOWS:

SINCE MOST OF THE EMPLOYEES WHO HAVE BEEN RESTORED RESIGNED IMMEDIATELY FOLLOWING THEIR RESTORATION, IT IS LIKELY THAT SOME OF THOSE WHO MAKE CLAIM FOR BACK PAY AT SOME FUTURE DATE WILL NOT DESIRE TO RETURN TO DUTY IN THEIR POSITIONS. IN THOSE CASES WHERE EMPLOYEES HAVE MOVED TO LOCATIONS DISTANT FROM THE INSTALLATION AT WHICH THEY WERE EMPLOYED, AN ACTUAL RETURN TO THE PLACE OF EMPLOYMENT REQUIRES THE EMPLOYEES TO INCUR CONSIDERABLE EXPENSE FOR THE COST OF TRAVEL AS WELL AS POSSIBLE LOSS OF TIME FROM THEIR CURRENT EMPLOYMENT. UNDER SUCH CIRCUMSTANCES EMPLOYEES WHO DO NOT INTEND TO RETURN TO THEIR POSITIONS WOULD PREFER TO RESIGN WITHOUT ACTUALLY RETURNING TO THE INSTALLATION WHERE THEY WERE EMPLOYED, PROVIDED THAT THE RESIGNATION WOULD NOT PREJUDICE THEIR CLAIM FOR BACK PAY.

THE RESTORATION OF THESE EMPLOYEES IS BASED ON A PROCEDURAL DEFECT IN THEIR REMOVAL (I.E., THE USE OF THE WRONG STATUTORY AUTHORITY) RATHER THAN ON A FINDING AS TO THE MERITS OF THE REMOVAL. THE ATTORNEY GENERAL IN HIS MEMORANDUM CITED ABOVE STATED: " I BELIEVE THAT THE CLAIMANT IS ENTITLED TO BE INFORMED PRIOR TO HIS REINSTATEMENT THAT THE DEPARTMENT OR AGENCY HEAD MAY INITIATE FURTHER REMOVAL PROCEEDINGS IN ORDER THAT HE MAY BE AFFORDED AN OPPORTUNITY AT THAT TIME TO DETERMINE WHETHER HE WISHES REEMPLOYMENT OR PREFERS TO RESIGN WITHOUT PREJUDICE TO HIS CLAIM OF BACK PAY.' ALTHOUGH VOLUNTARY RESIGNATION OF THE EMPLOYEE AT THE CLOSE OF BUSINESS THE DAY HE IS RESTORED WOULD SPARE THE GOVERNMENT THE COST THAT WOULD BE INCURRED IF FURTHER REMOVAL PROCEEDINGS WERE INITIATED, NO ADVANTAGE ACCRUES TO THE GOVERNMENT BY REQUIRING THE EMPLOYEE TO PHYSICALLY RETURN TO DUTY FOR THIS ONE DAY. CONSTRUCTIVE RESTORATION AND ALLOWING THIS DAY TO BE CHARGED TO LEAVE WITHOUT PAY NOT ONLY SPARES THE EMPLOYEE THE EXPENSE AND INCONVENIENCE OR RETURNING, BUT SAVES THE GOVERNMENT THE COST OF SALARY FOR A DAY WHICH IN MOST CASES WOULD BE NONPRODUCTIVE.

BASED UPON THE FOREGOING CIRCUMSTANCES OUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

IS AN EMPLOYEE WHO WAS IMPROPERLY REMOVED FROM A NONSENSITIVE POSITION UNDER THE PROCEDURES ESTABLISHED BY THE ACT OF 26 AUGUST 1950 (64 STAT. 476, 5 U.S.C. 22-1 ET SEQ.) AND EXECUTIVE ORDER 10450 "REINSTATED OR RESTORED TO DUTY" WITHIN THE MEANING OF THE ACT OF 10 JUNE 1948 (63 STAT. 354, 5 U.S.C. 652) SO AS TO BE ENTITLED UNDER THE LATTER ACT TO BACK PAY FOR THE PERIOD OF HIS SUSPENSION OR REMOVAL IF HE RESIGNS ON THE EFFECTIVE DATE OF HIS RESTORATION AND DOES SO WITHOUT REPORTING FOR DUTY IN PERSON AT THE PLACE OF EMPLOYMENT?

THERE IS NO DOUBT BUT THAT AN INDIVIDUAL OTHERWISE WITHIN THE PURVIEW OF ONE OF THE BACK PAY PROVISIONS OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B), WHO IS REINSTATED ON THE ROLLS OF AN AGENCY AFTER A PERIOD OF UNJUSTIFIED OR UNWARRANTED REMOVAL AND WHO ACTUALLY REPORTS FOR DUTY IS ENTITLED TO BACK PAY AS HAVING BEEN "REINSTATED OR RESTORED TO DUTY," EVEN THOUGH HIS RESIGNATION BE ACCEPTED AS EFFECTIVE AT THE END OF ONE DAY IN A DUTY STATUS. THAT IS TO SAY, THE SUBSTANTIALLY IMMEDIATE RESIGNATION DOES NOT NULLIFY THE REINSTATEMENT. UNDER THE CIRCUMSTANCES RELATED IN THE QUOTED PORTION OF THE ASSISTANT SECRETARY'S LETTER, WE ARE OF THE OPINION THAT NEITHER THE PUBLIC INTEREST NOR THE INTEREST OF THE INDIVIDUAL JUSTIFIES A REQUIREMENT THAT THE FORMER EMPLOYEE ACTUALLY REPORT FOR DUTY WHEN IT IS KNOWN IN ADVANCE THAT HE WOULD IMMEDIATELY RESIGN AND THE RESIGNATION WOULD BE ACCEPTED AS TENDERED. THEREFORE, IN THIS PARTICULAR CLASS OF CASES, WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THE INDIVIDUAL CONCERNED IS ENTITLED TO REINSTATEMENT BECAUSE OF PROCEDURAL ERROR IN THE REMOVAL (36 COMP. GEN. 225), AND THE REINSTATEMENT IS OFFICIALLY RECORDED, BACK PAY MAY BE ALLOWED UNDER SECTION 6 (B) (PARAGRAPH (1) OR (2), AS APPROPRIATE) OF THE 1912 ACT, AS AMENDED, SUPRA, 5 U.S.C. 652 (B) (1) OR (2), WITHOUT AN ACTUAL RETURN TO DUTY. WHETHER THE INDIVIDUAL BE CONTINUED IN A LEAVE-WITHOUT PAY STATUS FOR ONE DAY OR LONGER FOLLOWING THE REINSTATEMENT IS IMMATERIAL--- THE CRITICAL EVENT SO FAR AS CONCERNS BACK PAY BEING THE REINSTATEMENT.

THE QUESTION QUOTED ABOVE IS ANSWERED ACCORDINGLY.

OUR DECISION ALSO IS REQUESTED ON THE QUESTION WHETHER ANY EMPLOYEE WHOSE REMOVAL OR SUSPENSION WAS "UNJUSTIFIED OR UNWARRANTED" UNDER THE BACK PAY PROVISIONS REFERRED TO HEREIN WOULD BE CONSIDERED AS "REINSTATED OR RESTORED TO DUTY" SO AS TO BE ENTITLED TO BACK PAY FOR THE PERIOD OF HIS SUSPENSION OR REMOVAL IF HE RESIGNS ON THE EFFECTIVE DATE OF HIS RESTORATION AND DOES SO WITHOUT REPORTING FOR DUTY IN PERSON AT THE PLACE OF EMPLOYMENT.

IN VIEW OF THE BROAD SCOPE AND APPARENTLY HYPOTHETICAL NATURE OF THIS LAST QUESTION, AND HAVING IN MIND THE COMPLEXITIES WHICH EXPERIENCE HAS TAUGHT US ARE PRONE TO OCCUR IN BACK PAY CASES, WE DO NOT BELIEVE IT APPROPRIATE TO UNDERTAKE AN ANSWER TO THE QUESTION AT THIS TIME. CF. 21 COMP. GEN. 83.