Opinion of the Court 149 C. Cls. Act is a nullity unless provision is made to make effective the decisions of the Civil Service Commission with respect to appeals processed by veterans and other employees under the provisions of the Veterans' Preference Act. During the first session of the Eightieth Congress, Public Law 325 [61 Stat. 723 (1947)] was approved which provides that the decisions of the Civil Service Commission in connection with appeals by veterans processed under section 14 of the Veterans' Preference Act [5 U.S.C. § 863 (1952)] shall be binding upon the executive departments and agencies. This bill extends the provisions of that law to include any appeal processed under the Veterans' Preference Act so that a decision favorable to a veteran or other employee will be enforceable. [Emphasis supplied.] We believe that the reasoning in the Goodwin case is applicable here, and, therefore, that the Civil Service Commission recommendation in connection with the plaintiff's appeal did create a new statutory claim for back pay. The problem in this case arises from the fact that the initial July 1, 1952, recommendation of the Civil Service Commission was renewed on May 4, 1953-less than six years prior to the filing of the plaintiff's petition in this court. After reviewing the circumstances surrounding the series of Civil Service recommendations relating to plaintiff's reinstatement we are forced to conclude that the plaintiff's statutory claim first accrued not later than December 5, 1952, at the time the second recommendation was submitted to the State Department. 6 Actually, the original recommendation on its face constituted a final determination by the Commission, and the plaintiff's statutory claim would ordinarily have accrued on July 1, 1952. However, there are indications that this July 1 decision was stayed by the Civil Service Commission. On July 15, 1952, the Department of State requested "that the time required [by the July 1, 1952, recommendation] for the Department to advise the United States Civil Service Commission regarding the proposed action in this case be extended for thirty days." This request, which the Com • See Goodwin v. United States, 127 C. Cls. at 420. 22 Opinion of the Court mission granted on July 18, 1952, was based on the nonavailability of the plaintiff's personnel records. On August 12, 1952, the Department of State asked for "a further extension of time in order to prepare and submit its appeal from the decision of the Commission." In response to this request, the Chairman of the Board of Appeals and Review of the Civil Service Commission granted the Department of State the opportunity of "submitting its appeal to the Commission not later than September 2, 1952." The Department of State did not submit an "appeal," but instead notified the Civil Service Commission on September 2 that it was reviewing the Commission's recommendation that the plaintiff be restored to duty retroactively, and that it would advise the Commission as soon as a final decision was reached. The plaintiff reads into these two extensions of time granted the State Department a decision by the Civil Service Commission to stay its July 1, 1952, recommendation, thus temporarily denying it finality pending an "appeal" by the State Department. The questions thus raised of "When did. the Commission's recommendation become final?" and "When, therefore, did the plaintiff's claim first accrue?" are complicated by the scarcity of definitive Civil Service Commission regulations. The retention preference regulations for use in reductions in force merely provided that Any employee who feels that there has been a violation of his rights under the regulations in this part [Part 20] may appeal to the appropriate office of the Civil Service Commission within 10 days from the date he received his notice of the action to be taken [i.e., the reduction in force]. *** ** (12 Fed. Reg. 7189 (1947), 5 C.F.R. § 20.13 (1949) (appeals)). It was further provided that Whenever the Commission, as the result of a decision. on the appeal of an employee, disapproves the action taken [by the employing agency] under the regulations in this part, the head of the department or governmental entity shall restore the employee to active duty. (12 Fed. Reg. 7189 (1947), 5 C.F.R. § 20.14 (1949) (actions disapproved by the Commission)). Opinion of the Court 149 C. Cls. There is no indication in these regulations of the effect to be accorded a decision of the Board of Appeals when (as in the case of the July 1, 1952, recommendation) it is submitted to the agency "by direction of the Commission." Neither was there any provision for an appeal to the Commissioners from "the initial decision within the Commission," as was the case under the 1953 change in the regulations. Even if we were to say that "the decision of the Board [of Appeals and Review] shall be final," that "there is no further right of appeal," and that "a recommendation for corrective action by the Board is mandatory and must be complied with by the agency" as the regulations now provide the regulations then in existence do not tell us what effect, if any, an "appeal” by the agency to the Commission, or a reconsideration by the Commission, has on the finality of a Board decision. 8 Assuming that plaintiff's interpretation of communications between the Commission and the State Department is correct, and that a stay of the July 1, 1952, recommendation was granted in July and again in August pending a reconsideration by the Commission, the plaintiff is still faced with the Civil Service Commission's subsequent renewal on December 5, 1952, of the "stayed" recommendation. This renewal of the original recommendation was submitted in a letter from the Chairman of the Civil Service Commission to the Secretary of State. In this letter, the Commission reiterated the July 1, 1952, recommendation and then stated that Since that time [i.e., July 1, 1952] we have had several informal contacts with representatives of *** [the State] Department for the purpose of assisting them in placing our recommendation in effect. As of this date we are informed, however, that our recommendation still has not been complied with. [Emphasis supplied.] The letter concluded: In order that this matter may be properly closed it is requested that you advise the Commission not latter than close of business December 22, 1952, of the corrective action taken or proposed to be taken by your Department in behalf of *** [plaintiff]. 17 Fed. Reg. 11733 (1952), amending 5 C.F.R. § 20.9 (Supp. 1954) (appeals). 5 C.F.R. § 20.9 (Supp. 1958) (appeals). 22 Opinion of the Court Whether this December 5, 1952, letter is viewed as a renewal of the July 1 recommendation, or as a decision to revoke a stay of the July 1 recommendation, we believe it did give finality to the Commission's recommendation that plaintiff be restored to duty. There is no indication in this December 5 letter that the Commission was prompting the State Department to press for a reopening and reconsideration of the July 1 decision, or to perfect an "appeal" to the Commission. Nor do we find any indication that the Commission intended to further delay the effect of the recommendation pending an appeal or a reconsideration. On the contrary, the letter speaks only of compliance with the recommendation. On December 22, 1952, the State Department replied unequivocally that "for reasons hereinafter stated the Department has determined that it must respectfully decline to comply with the recommendations." The plaintiff argues that this letter, in which the State Department spells out its reasons for failing to comply with the recommendation, constituted an "appeal." We do not agree with plaintiff's interpretation. But regardless of how the State Department's December 22 reply is characterized, it could not in itself affect the finality of the Commission's recommendation. Under the statute and the regulations, the December 5 recommendation-which clearly originated with the Commissioners was on its face a final decision. And, as we have already stated, there is nothing in the record to show that the Commission intended to further stay the effectiveness of this decision. It is of no import that the December 5 recommendation was not couched in mandatory language. The statute provides that "any recommendation by the Civil Service Commission, submitted to any Federal agency, on the basis of the appeal of any preference eligible, employee or former employee, shall be complied with by such agency." [Emphasis supplied.] It is true that the Commission did, on May 4, 1953, reiterate its earlier recommendation after making a further study of plaintiff's case, "taking into consideration the arguments ad 62 Stat. 575 (1948), 5 U.S.C. 868 (1958), amending 58 Stat. 391 (1944). 62594662- -4 Opinion of the Court 149 C. Cls. vanced by the Department of State in the letter of December 22, 1952, as to the reasons it must decline to comply with the Commission's recommendation***." It was, of course, not unnatural that the Commission should make one further attempt to secure compliance with its earlier (and presumably mandatory) recommendation. However, neither the statute, nor the regulations, nor logic permits us to hold that the mere reiteration of a prior decision affects the finality of the prior decision. We are left then with plaintiff's contention that the Commission stayed its December 5 recommendation pending a reopening and reconsideration of the case. But here again we can only reiterate that, regardless of what may have transpired between the Commission and the State Department prior to the December 5 recommendation, we can find absolutely nothing in the record to indicate that the Commission intended the December 5 recommendation to be anything but final and binding on the State Department. And since the December 5 decision was not stayed it must be considered final, even though the Commission subsequently felt compelled to reiterate its December 5 recommendation and to answer the State Department's December 22 documented refusal to comply with that recommendation. The same result is reached under the rule that the period of limitations on a suit is tolled while administrative remedies are being pursued and that it does not begin to run until the Civil Service Commission has finally passed on the case.10 Here again the finality of the December 5, 1952, recommendation is not affected by the Commission's subsequent reiteration of that recommendation. Since the plaintiff's petition was filed more than six years after his discharge and more than six years after the Civil Service Commission's final recommendation, we have no recourse but to hold that these claims are barred by limitations. In the alternative, the plaintiff urges that under a socalled continuing claim theory he is entitled in any event to all back pay accrued within six years immediately prior 10 See Adler v. United States, 134 C. Cls. 200, 203 (1956); cert. denied 352 U.S. 894. |