Hyman v. United States, 284-55.

• Citation: 138 Ct. Cl. 836,157 F. Supp. 164
• Decision Date: 05 June 1957
• Docket Number: No. 284-55.,284-55.
• Parties: Alice HYMAN v. The UNITED STATES.
• Court: Court of Federal Claims

157 F. Supp. 164

138 Ct. Cl. 836

Alice HYMAN v. The UNITED STATES.

No. 284-55.

United States Court of Claims.

June 5, 1957.

Mitchell J. Cooper, Washington, D. C., Eugene Gressman, Washington, D. C., on the briefs, for plaintiff.

Arthur E. Fay, Washington, D. C., with whom was George Cochran Doub, Asst. Atty., for defendant.

LITTLETON, Judge.

Plaintiff sues to recover back salary from March 19, 1954 to September 27, 1954, on the ground that during the period in question she was illegally deprived of a position with the Public Housing Administration and that upon her reinstatement to such position she became entitled to the compensation of the position retroactively to March 19, 1954, under 5 U.S.C.A. § 652(b) (3), 62 Stat. 354 (Act of June 10, 1948).

The statutory provision relied on by plaintiff provides, in part, as follows:

"Any person removed or suspended without pay in a reduction in force who, after an appeal to proper authority, 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 facts are not in dispute. Plaintiff, a classified Civil Service employee of the Public Housing Administration, was properly separated from her grade GS-7 position on November 30, 1953, as a result of a reduction in force. Pursuant to Civil Service Commission regulations, 5 CFR 20.7(a) (1949 ed.), her name was placed on the agency reemployment priority list. In March, 1954, plaintiff applied to the Public Housing Administration for appointment to a vacancy, grade GS-9, for which she believed herself qualified. The agency determined that plaintiff was not qualified for the position she sought and, on March 19, 1954, appointed another individual to fill the position. Upon learning that the position had been filled, plaintiff protested such action to the Director of Personnel of the employing agency and was advised that she might appeal to the Civil Service Commission. On August 16, 1954, plaintiff appealed to the Appeals Examining Office of the Civil Service Commission pursuant to section 20.7(d) of the regulations of the Commission. Upon denial of her appeal, plaintiff appealed further to the Civil Service Commissioners. On February 7, 1955, the chairman of the Board of Appeals and Review, on behalf of the Commissioners, reversed the decision of the Appeals Examining Office and recommended that plaintiff's "appointment be effected, retroactive to March 19, 1954, to the position of Rental and Occupancy Assistant, GS-9, or to another position of like grade and salary for which she is qualified."

In the meantime, on September 27, 1954, while plaintiff's appeal was still pending before the Civil Service Appeals Examining Office, plaintiff was employed by the Public Housing Administration in a position carrying grade GS-9. Following the final decision by the Civil Service Commission on her appeal, on February 7, 1955, plaintiff's appointment to the position which she then held was made effective retroactively to March 19, 1954, and the employing agency asked the Comptroller General whether plaintiff was entitled to be paid back salary for the period from March 19, 1954 to September 27, 1954. On May 2, 1955, the Comptroller General decided and advised the Housing Administration that plaintiff was not entitled to such back salary. 34 Comp.Gen. 559.

Plaintiff's claim for salary under the provisions of 5 U.S.C.A. § 652(b) (3) is based on a novel theory. Plaintiff concedes that her removal in November 1953, through a reduction in force, was neither unjustified nor unwarranted, but she contends that the refusal of the Public Housing Administration, in March 1954, to appoint plaintiff to the GS-9 position for which she was ultimately held to be qualified amounted to an "unjustified or unwarranted" suspension giving rise to a right in plaintiff for compensation for the period during which she was deprived of the position in question. Plaintiff urges that her situation is sufficiently similar to that of Leo A. Roth, 34 Comp.Gen. 303, to require application of the ruling issued by the Comptroller General in that case. Defendant urges that the facts in plaintiff's case are sufficiently unlike those in the Roth case to require the different result which was reached by the Comptroller General.

In the Roth case, relied on by plaintiff, Roth had transferred from a position in the Department of Justice to a position in the Office of Price Stabilization, with reemployment rights in the Department of Justice. In the spring of 1953, Roth was notified by OPS that he was about to be reached in a reduction in force. Roth applied for reemployment in the Department of Justice and was refused. Following his separation in an admittedly valid reduction in force by OPS, Roth appealed to the Civil Service Commission which held that the Department of Justice should have recognized Roth's reemployment rights, and the Commission ordered him reinstated. The Comptroller General ruled that Roth was entitled to his salary from the Department of Justice from the time his annual leave with OPS expired, April 30, 1953, to date of his reinstatement in the Department of Justice on June 21, 1953, on the theory that his actual separation from Government service was due not to the reduction in force at OPS, but to the refusal by the Department of Justice to recognize his reemployment rights in that department as required by Civil Service regulations.

In its inquiry regarding this plaintiff's right to back pay, the Housing Administration called the attention of the Comptroller General to his decision in the Roth case and asked whether, under the holding in that case, plaintiff was not also entitled to back pay. In an opinion reported at 34 Comp.Gen. 599, the Comptroller General held that although both Roth and this plaintiff were involved in valid reductions in force, Roth's separation from the service was not caused by such reduction in force whereas the separation of plaintiff was so caused, and that the later refusal of the Housing Administration to reappoint the plaintiff to a job for which the Civil Service Commission ultimately found her qualified, resulted only in a loss of the opportunity for appointment in the Federal Service and not in an unwarranted or unjustified removal or suspension from such service.

We believe that the Comptroller General was right in his ruling in this case. The basis for the ruling may be found in the applicable Civil Service regulations. The regulations governing reemployment rights are different from those governing reemployment priority. Section...