Retroactive Reinstatement by Order of Merit Systems Protection Board

A General Services Administration (GSA) disbursing officer requested an advance decision as to whether he may honor a final decision of the Merit Systems Protection Board (MSPB) which retroactively reinstated an employee to a certain position with the agency. In addition, the employee asked GAO to consider the allowance of attorney fees in connection with his successful appeal to the MSPB. The employee filed an appeal with the MSPB alleging that GSA had failed to accord him priority consideration for reemployment upon cessation of disability compensation for a work-related injury. In an Opinion and Order, the MSPB mandated GSA to retroactively reemploy the appellant and to comply with specific actions under applicable legislation. Since all administrative appeal rights had been exhausted, the MSPB considered the case closed. GAO will not review the MSPB Opinion and Order and advised the disbursing officer that the MSPB Order represented the legal authority to make the payments of backpay in regard to the employee's reinstatement. The claim for attorney fees was made under the Civil Service Reform Act of 1978 which grants the MSPB the authority to award reasonable attorney fees to employees who prevail on appeal. However, this claim was precluded under the Act, because it was made before the effective date of the Act. Therefore, GAO concluded that there was no authority to pay attorney fees in this case.