B-205373, APR 24, 1984

B-205373, APR 24, 1984

DIGEST: 1. EMPLOYEE CLAIMS ATTORNEY FEES IN CASE WHERE GAO HELD AGENCY IMPROPERLY ATTEMPTED TO SET OFF RETIREMENT CONTRIBUTIONS AGAINST INDEBTEDNESS TO GOVERNMENT WHICH WAS DISCHARGED IN BANKRUPTCY. LELAND M. WILSON, B-205373, APRIL 2, 1982. CLAIM FOR ATTORNEY FEES IS DENIED SINCE ORIGINAL CLAIM IS NOT WITHIN SCOPE OF BACK PAY ACT, 5 U.S.C. SEC. 5596, AS AMENDED, AND THERE IS NO OTHER BASIS FOR PAYMENT OF ATTORNEY FEES. 2. EMPLOYEE CLAIMS INTEREST FOR PERIOD AGENCY IMPROPERLY WITHHELD PAYMENT OF RETIREMENT CONTRIBUTIONS IN AN ATTEMPT TO COLLECT AN INDEBTEDNESS TO THE AGENCY. ABSENT STATUTORY OR CONTRACTUAL AUTHORITY, THERE IS NO BASIS TO ASSESS INTEREST AGAINST THE GOVERNMENT.

LELAND M. WILSON - CLAIM FOR ATTORNEY FEES AND INTEREST:

ISSUES

THE ISSUES IN THIS DECISION CONCERN A CLAIM FOR ATTORNEY FEES AND INTEREST INCIDENT TO OUR PRIOR DECISION WHICH HELD THAT AN AGENCY MAY NOT SET OFF AN EMPLOYEE'S RETIREMENT CONTRIBUTIONS AGAINST THE EMPLOYEE'S INDEBTEDNESS TO THE GOVERNMENT WHERE THE INDEBTEDNESS HAD BEEN DISCHARGED IN BANKRUPTCY. THE CLAIM FOR ATTORNEY FEES IS DENIED SINCE THE MATTER IS NOT WITHIN THE SCOPE OF THE BACK PAY ACT AND SINCE THERE IS NO OTHER APPLICABLE AUTHORITY FOR THE PAYMENT OF ATTORNEY FEES. ALSO, THERE IS NO AUTHORITY TO ASSESS INTEREST AGAINST THE GOVERNMENT UNDER THESE CIRCUMSTANCES.

BACKGROUND

MR. RAYMOND P. VAN STOCKUM, ON BEHALF OF HIS CLIENT, LELAND M. WILSON, CLAIMS (1) ATTORNEY FEES IN THE AMOUNT OF $1,500; AND (2) INTEREST FOR THE 15-MONTH PERIOD HIS CLIENT WAS WRONGFULLY DEPRIVED OF HIS RETIREMENT CONTRIBUTIONS. THE CLAIM IS PRESENTED IN CONNECTION WITH MR. VAN STOCKUM'S REPRESENTATION OF MR. WILSON, IN LELAND M. WILSON, B-205373, APRIL 2, 1982.

IN THAT DECISION WE CONSIDERED MR. WILSON'S CLAIM AS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA) WHO HAD VOLUNTARILY RESIGNED FROM GOVERNMENT SERVICE AND THEREBY BECAME INDEBTED TO THE GOVERNMENT FOR VIOLATING TRAINING AND RELOCATION SERVICE AGREEMENTS. IN ORDER TO SATISFY THE INDEBTEDNESS OF NEARLY $20,000, THE FAA OBTAINED MR. WILSON'S TOTAL RETIREMENT CONTRIBUTIONS OF OVER $12,000 FROM THE OFFICE OF PERSONNEL MANAGEMENT (OPM). HOWEVER, MR. WILSON'S INDEBTEDNESS TO THE GOVERNMENT HAD BEEN DISCHARGED IN BANKRUPTCY AND HIS RETIREMENT CONTRIBUTIONS HAD BEEN EXCLUDED FROM HIS ASSETS IN BANKRUPTCY. SEE 11 U.S.C. SEC. 522(D)(10)(E) (SUPP. III 1979). ACCORDINGLY, WE HELD THAT MR. WILSON MUST BE PAID HIS RETIREMENT CONTRIBUTIONS SINCE THE AGENCY WAS ERRONEOUSLY ATTEMPTING TO USE SETOFF TO COLLECT AN INDEBTEDNESS WHICH HAD BEEN DISCHARGED IN BANKRUPTCY. B-205373, CITED ABOVE.

MR. VAN STOCKUM NOW CLAIMS, ON BEHALF OF HIS CLIENT, MR. WILSON, ATTORNEY FEES IN THE AMOUNT OF $1,500 WHICH WERE INCURRED IN PURSUING CLAIMS BEFORE THE FAA AND OUR OFFICE FOR RECOVERY OF THE RETIREMENT CONTRIBUTION. ADDITION, HE CLAIMS INTEREST ON THE AMOUNT OF THE RETIREMENT CONTRIBUTION FOR THE PERIOD FROM APRIL 1981, WHEN MR. WILSON CLAIMED THE REFUND, TO JULY 1982, WHEN THE FAA MADE PAYMENT PURSUANT TO OUR DECISION.

OPINION

ATTORNEY FEES

GENERALLY, WE HAVE HELD THAT REIMBURSEMENT OF ATTORNEY FEES MAY NOT BE ALLOWED IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY. NORMAN E. GUIDABONI, 57 COMP.GEN.444 (1978); AND MANZANO AND MARSTON, 55 COMP.GEN. 1418 (1976). HOWEVER, THE BACK PAY ACT OF 1966, AS AMENDED BY THE CIVIL SERVICE REFORM ACT OF 1978, PUB.L. 95-454, 92 STAT. 1216, NOW PROVIDES STATUTORY AUTHORITY TO PAY ATTORNEY FEES TO EMPLOYEES FOUND TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. 5 U.S.C. SEC. 5596(B)(1)(A)(II)(1982). THE IMPLEMENTING REGULATIONS ARE CONTAINED IN 5 C.F.R. SEC. 550.806, AND WE REQUESTED COMMENTS FROM THE FAA ON THIS ISSUE. SEE 5 C.F.R. SEC. 550.806(B).

THE FAA ARGUES THAT ITS EFFORT TO COLLECT A DEBT OWED TO THE UNITED STATES WAS NOT A "PERSONNEL ACTION" UNDER THE BACK PAY ACT SIMPLY BECAUSE THE DEBT WAS INCURRED WHILE MR. WILSON WAS A FEDERAL EMPLOYEE. THEREFORE, SINCE MR. WILSON WAS NOT AFFECTED BY A "PERSONNEL ACTION," THE FAA CONCLUDES THAT HE IS NOT ENTITLED TO CLAIM ATTORNEY FEES UNDER THE BACK PAY ACT.

MR. VAN STOCKUM CONTENDS THAT THE ACTION TAKEN BY THE AGENCY WAS AN "UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION" UNDER THE BACK PAY ACT SINCE (1) THE BANKRUPTCY COURT HAD DISCHARGED THE INDEBTEDNESS; (2) THE RETIREMENT CONTRIBUTION IS "PART OF THE PAY, ALLOWANCES, AND DIFFERENTIALS OF THE EMPLOYEE" AS SPECIFIED IN THE BACK PAY ACT; AND (3) THE FAA REFUSED TO HONOR THE ORDER OF THE BANKRUPTCY COURT DISCHARGING THE INDEBTEDNESS.

THUS, THE THRESHOLD QUESTION BEFORE US IS WHETHER THIS MATTER FALLS WITHIN THE PURVIEW OF THE BACK PAY ACT. THE ACT REFERS TO AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF THE "PAY, ALLOWANCES, OR DIFFERENTIALS" OF AN "EMPLOYEE". THE REGULATIONS IMPLEMENTING THE BACK PAY ACT ISSUED BY OPM DEFINE AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" IN 5 C.F.R. SEC. 550.803 AS FOLLOWS:

"*** AN ACT OF COMMISSION OR AN ACT OF OMISSION (I.E., FAILURE TO TAKE AN ACTION OR CONFER A BENEFIT) THAT AN APPROPRIATE AUTHORITY SUBSEQUENTLY DETERMINES, ON THE BASIS OF SUBSTANTIVE OR PROCEDURAL DEFECTS, TO HAVE BEEN UNJUSTIFIED OR UNWARRANTED UNDER APPLICABLE LAW, EXECUTIVE ORDER, RULE, REGULATION, OR MANDATORY PERSONNEL POLICY ESTABLISHED BY AN AGENCY OR THROUGH A COLLECTIVE BARGAINING AGREEMENT. SUCH ACTIONS INCLUDE PERSONNEL ACTIONS AND PAY ACTIONS (ALONE OR IN COMBINATION)."

THIS REGULATION ALSO DEFINES PAY, ALLOWANCES, AND DIFFERENTIALS AS ANY "MONETARY AND EMPLOYMENT BENEFITS TO WHICH AN EMPLOYEE IS ENTITLED BY STATUTE OR REGULATION BY VIRTUE OF THE PERFORMANCE OF A FEDERAL FUNCTION." 5 C.F.R. SEC. 550.803.

WHILE THE LANGUAGE OF THE BACK PAY ACT AND THE IMPLEMENTING REGULATIONS IS BROAD AND APPEARS TO ENCOMPASS MANY SITUATIONS, WE BELIEVE THAT MR. WILSON'S CLAIM DOES NOT FALL WITHIN THE SCOPE OF THE BACK PAY ACT.

THE CONGRESSIONAL INTENT OF THE BACK PAY ACT OF 1966 WAS TO INSURE THAT AN EMPLOYEE IS ENTITLED TO PAY OR BENEFITS LOST AS A RESULT OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. S.REP. NO. 1062, 89TH CONG., 2D SESS., REPRINTED IN 1966 U.S.C. CONG. & AD. NEWS 2097, 2099. SEE UNITED STATES V. TESTAN, ET AL., 424 U.S. 392, 405 (1976) WHERE IT IS STATED THAT:

"THE STATUTE'S LANGUAGE WAS INTENDED TO PROVIDE A MONETARY REMEDY FOR WRONGFUL REDUCTIONS IN GRADE, REMOVALS, SUSPENSIONS, AND OTHER UNWARRANTED OR UNJUSTIFIED ACTIONS AFFECTING PAY OR ALLOWANCES THAT COULD OCCUR IN THE COURSE OF REASSIGNMENTS AND CHANGE FROM FULL-TIME TO PART-TIME WORK."

MR. WILSON'S CLAIM WAS NOT FOR MONEY WITHHELD FROM HIS PAY OR ALLOWANCES WHILE EMPLOYED BY THE FAA NOR FOR ADDITIONAL PAY OR ALLOWANCES HE WOULD HAVE RECEIVED BUT FOR THE FAA'S ACTION. INSTEAD, MR. WILSON'S CLAIM WAS FOR PAYMENT OF HIS RETIREMENT CONTRIBUTIONS, A SUM OF MONEY HELD BY OPM FOR PAYMENT IN A LUMP-SUM AMOUNT OR AS A DEFERRED RETIREMENT ANNUITY. SEE 5 U.S.C. SECS. 8338 AND 8342(A). WE BELIEVE THIS REPRESENTS A MONEY CLAIM FOR WHICH A REMEDY UNDER THE BACK PAY ACT IS NOT AVAILABLE. THERE WAS NO DOUBT AS TO MR. WILSON'S ENTITLEMENT TO HIS RETIREMENT CONTRIBUTIONS; THE ONLY QUESTION FOR DECISION WAS THE AUTHORITY OF FAA TO SET OFF THIS AMOUNT AGAINST HIS INDEBTEDNESS.

WITHOUT ENUMERATING WHAT ACTIONS ARE OR ARE NOT WITHIN THE SCOPE OF THE BACK PAY ACT, WE CONCLUDE THAT THIS CLAIM IS NOT WITHIN ITS SCOPE. ABSENT ANY OTHER AUTHORITY FOR THE PAYMENT OF ATTORNEY FEES, WE DENY MR. VAN STOCKUM'S CLAIM FOR ATTORNEY FEES.

INTEREST

MR. VAN STOCKUM ALSO CLAIMS INTEREST ON THE AMOUNT OF THE RETIREMENT REFUND FOR THE 15-MONTH PERIOD THE FAA WRONGFULLY WITHHELD PAYMENT FROM MR. WILSON. OUR OFFICE HAS LONG HELD THAT INTEREST CHARGES MAY NOT BE ASSESSED AGAINST THE GOVERNMENT IN THE ABSENCE OF EXPRESS STATUTORY OR CONTRACTUAL AUTHORITY. SEE JACK M. HANING, B-211388, JANUARY 17, 1984, AND DECISIONS CITED THEREIN. SEE ALSO FITZGERALD V. STAATS, 578 F.2D 435 (D.C. CIR. 1978). NEITHER THE BACK PAY ACT NOR ANY OTHER APPLICABLE STATUTE SPECIFICALLY PROVIDES FOR THE PAYMENT OF INTEREST ON AWARDS OF BACKPAY RESULTING FROM AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. SEE HANING, CITED ABOVE, AND VAN WINKLE V. MCLUCAS, 537 F.2D 246 (6TH CIR. 1976), CERT.DEN., 429 U.S. 1093 (1977). THEREFORE, WE DENY THE CLAIM FOR PAYMENT OF INTEREST ON THE REFUND OF MR. WILSON'S RETIREMENT CONTRIBUTIONS.