                                                                                December 7, 1977


78-89        MEMORANDUM OPINION FOR THE COUNSEL
             TO THE PRESIDENT

             General Services Administration— Disciplinary
             Matter— Authority of the General Services
             Administration (5 U.S.C. § 5596)


   This is in response to a request for our views concerning sanctions imposed
on three employees o f the General Services Administration (GSA). The three
employees were charged with the theft of several packages of cigarettes from a
blind-operated snack bar. Each o f them was suspended without pay for 30 days
and was demoted two grades. Each person pursued the matter within the GSA
grievance system and then appealed to the Civil Service Com m ission’s Federal
Employee Appeals Authority, which upheld G SA ’s action. Petitions to reopen
and reconsider the cases were filed with the Com m ission’s Appeals Review
Board and were denied.
   Specifically you asked us whether GSA has authority to restore the
employees to their prior grades. In our opinion, there are possible legal bases
for GSA to take such action.
   Retroactive restoration of employees to prior grades or to intermediate grades
is authorized if GSA determines that its action in demoting them was
"unjustified or unw arranted.” This authority is set forth in the Civil Service
Commission’s regulation concerning adverse actions, 5 CFR § 752.402 (1977).
Also, a foundation for such action is provided by the back-pay statute, 5
U.S.C. 5596 (1976), and the Civil Service Com m ission’s implementing
regulations, 5 CFR §§ 550.801-.804 (1977). The back-pay regulations make
clear that an agency may make such a determination on its own initiative. See 5
CFR § 550.803(a) (1977).
   Another possibility would be to increase, on a prospective basis, the grade of
the employees. O f course, the ordinary requirements for a promotion would
have to be satisfied.*

   *lf there is to be an increase o f two grades in one year, w aiver o f the W hitten am endm ent may be
necessary. See § 1310(c) o f the Act o f Nov. 1, 1951. as am ended, 5 U .S .C . 3101 note (1976). The
general rule under that provision is that em ployees in the com petitive service may not be prom oted
to a higher grade without having served at least one year in the next low er grade. There are certain
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   In our opinion, the fact that G S A ’s sanctions were upheld in the Civil Service
Commission proceedings does not bar GSA from reconsidering the matter.
Accordingly, it would seem appropriate for you to refer this matter to GSA for
further consideration. The question whether any remedial action should be
taken is for GSA, and we express no opinion regarding that matter.

                                                 Larry A. H     ammond

                                            D epu ty A ssistan t A ttorney G eneral
                                                             Office o f L egal Counsel




(Continued)
exceptions; and, in special cases, an agency head may obtain a w aiver from the Civil Service
Com m ission.
