B-148637, JAN. 24, 1967
Highlights
THE DEPARTMENT MAY NOT DELETE ANY PERIOD FROM COMPUTATION THE BASIS THAT THE EMPLOYEE WAS UNDER OBLIGATION TO MAKE AN EFFORT TO SECURE OTHER EMPLOYMENT DURING THE PERIOD COVERED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.'. AS INDICATED IN YOUR LETTER THE RULE THAT AN EMPLOYEE MAY BE DENIED BACK PAY FOR PERIODS OF UNJUSTIFIED SEPARATION OR SUSPENSION ON THE BASIS THAT HE DID NOT ATTEMPT TO SECURE EMPLOYMENT TO REPLACE HIS GOVERNMENT EMPLOYMENT IS BASED ON THE COURT OF CLAIMS DECISION IN SCHWARTZ V. WERE SIMILAR TO THOSE CONTAINED IN THE 1950 ACT. THE COMMISSION BELIEVES THAT AN UNNECESSARY ADMINISTRATIVE BURDEN MAY BE PLACED ON THE AGENCIES IN DETERMINING WHETHER THAT RULE IS APPLICABLE IN EACH CASE INVOLVING A PAYMENT MADE UNDER THE NEW BACK PAY ACT.
B-148637, JAN. 24, 1967
TO UNITED STATES CIVIL SERVICE COMMISSION:
WE REFER TO YOUR LETTER OF DECEMBER 21, 1966, CONCERNING THE PROPOSED ADDITION OF THE FOLLOWING SUBSECTION TO CIVIL SERVICE REGULATION 550.804 ISSUED UNDER THE AUTHORITY OF THE BACK PAY ACT OF 1966, APPROVED MARCH 30, 1966, PUB.L. 89-380, 80 STAT. 94:
"/F) IN COMPUTING THE AMOUNT OF BACK PAY DUE AN EMPLOYEE UNDER THIS SECTION AND SECTION 3 OF THE ACT, THE DEPARTMENT MAY NOT DELETE ANY PERIOD FROM COMPUTATION THE BASIS THAT THE EMPLOYEE WAS UNDER OBLIGATION TO MAKE AN EFFORT TO SECURE OTHER EMPLOYMENT DURING THE PERIOD COVERED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.'
AS INDICATED IN YOUR LETTER THE RULE THAT AN EMPLOYEE MAY BE DENIED BACK PAY FOR PERIODS OF UNJUSTIFIED SEPARATION OR SUSPENSION ON THE BASIS THAT HE DID NOT ATTEMPT TO SECURE EMPLOYMENT TO REPLACE HIS GOVERNMENT EMPLOYMENT IS BASED ON THE COURT OF CLAIMS DECISION IN SCHWARTZ V. UNITED STATES, 149 CT.CL. 145, 181 F.SUPP. 408 (1960). THAT CASE INVOLVED A REINSTATEMENT UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476. SINCE THE BACK PAY PROVISIONS OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (1964 ED.), INCLUDING THE DEDUCTING OF INTERIM EARNINGS FROM BACK PAY OTHERWISE DUE, WERE SIMILAR TO THOSE CONTAINED IN THE 1950 ACT, THE RULE OF THE SCHWARTZ CASE HAS BEEN APPLIED TO THE COMPUTATION OF BACK PAY UNDER SECTION 6 (B). CF. 41 COMP. GEN. 418.
THE BACK PAY ACT OF 1966 REPEALED THE BACK PAY PROVISIONS OF THE ACTS MENTIONED ABOVE AND SUBSTITUTED SOMEWHAT SIMILAR--- THOUGH IN CERTAIN RESPECTS MORE LIBERAL--- PROVISIONS IN LIEU THEREOF. THE REQUIREMENT FOR DEDUCTION OF AMOUNTS OTHERWISE EARNED DURING THE PERIOD TO BE COVERED BY BACK PAY REMAINED SUBSTANTIALLY THE SAME.
ABSENT ANY OTHER CONSIDERATION THERE WOULD APPEAR TO BE AMPLE BASIS FOR APPLYING THE RULE IN THE SCHWARTZ CASE TO THE CURRENT BACK PAY ACT. HOWEVER, THE COMMISSION BELIEVES THAT AN UNNECESSARY ADMINISTRATIVE BURDEN MAY BE PLACED ON THE AGENCIES IN DETERMINING WHETHER THAT RULE IS APPLICABLE IN EACH CASE INVOLVING A PAYMENT MADE UNDER THE NEW BACK PAY ACT. DURING AN INFORMAL DISCUSSION WITH MEMBERS OF YOUR STAFF IT WAS AGREED THAT PERHAPS THE PROPOSED REGULATION SHOULD BE MODIFIED TO PERMIT AGENCIES TO DISREGARD THE RULE OF THE SCHWARTZ CASE ONLY WHEN THE EMPLOYEE'S RESTORATION OCCURRED WITHIN ONE YEAR OF HIS ERRONEOUS SEPARATION OR SUSPENSION. A MODIFICATION OF THE PROPOSED REGULATION TO THAT EXTENT WILL PERMIT THE GOVERNMENT TO APPLY THE RULE OF THE SCHWARTZ CASE IN APPROPRIATE CASES INVOLVING EXTENDED PERIODS OF SEPARATION AND YET RELIEVE THE AGENCIES OF THE BURDEN OF DETERMINING WHETHER SUCH RULE IS APPLICABLE IN MOST CASES. WE BELIEVE THAT SUCH AN APPROACH WOULD BE MORE IN KEEPING WITH THE INTERESTS OF THE GOVERNMENT.
TO ACCOMPLISH THE FOREGOING WE SUGGEST THE INSERTION OF THE WORDS "IF THE EMPLOYEE HAS BEEN RESTORED WITHIN ONE YEAR AFTER HIS ERRONEOUS SEPARATION OR SUSPENSION" AFTER THE WORDS "SECTION 3 OF THE ACT," IN THE PROPOSED REGULATION.
WE APPRECIATE THE OPPORTUNITY OF COMMENTING ON THE PROPOSED REGULATION.