B-162578, MAY 6, 1974, 53 COMP GEN 824

B-162578, MAY 6, 1974, 53 COMP GEN 824

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - DEDUCTIONS FROM BACK PAY - OUTSIDE EARNINGS - BASIS FOR DEDUCTION WHERE INCOME WAS GENERATED FROM PART-TIME TEACHING, LECTURING, AND WRITING ACTIVITIES PRIOR TO UNJUSTIFIED SEPARATION ACTION ONLY THE ADDED INCREMENT FROM SUCH ACTIVITIES DURING THE INTERIM PERIOD BETWEEN SEPARATION AND REINSTATEMENT NEED BE DEDUCTED FROM BACK PAY. THE DETERMINATION AS TO THE AMOUNT OF SUCH ADDED INCREMENT MAY BE BASED UPON A COMPARISON OF THE AMOUNT OF OUTSIDE WORK PERFORMED ON AN HOURLY BASIS OR FREQUENCY OF OCCURRENCE, OR UPON INCOME RECEIVED PRIOR TO THE SEPARATION WITH THAT OF THE INTERIM PERIOD. INCOME FROM PUBLICATION OF A BOOK DURING THE INTERIM PERIOD NEED NOT BE DEDUCTED FROM BACK PAY PROVIDED THE EMPLOYEE WAS ENGAGED SUBSTANTIALLY IN WRITING A BOOK PRIOR TO HIS SEPARATION AND PUBLICATION WOULD PROBABLY HAVE OCCURRED EVEN IF HE HAD NOT BEEN SEPARATED. GENERAL ACCOUNTING OFFICE - ADVERSARY HEARINGS - NO AUTHORITY CLAIMANT'S REQUEST THAT A HEARING BE HELD FOR THE PURPOSE OF TAKING TESTIMONY FROM WITNESSES IS DENIED BECAUSE THE GENERAL ACCOUNTING OFFICE IS NOT VESTED WITH AUTHORITY TO HOLD ADVERSARY HEARINGS FOR THE PURPOSE OF OBTAINING SWORN TESTIMONY AND THEREFORE DECISIONS OF THE COMPTROLLER GENERAL MUST BE MADE UPON THE EVIDENCE IN THE OFFICIAL RECORD PRESENTED. INTEREST - CLAIMS AGAINST UNITED STATES - RULE CLAIMANT'S REQUEST THAT INTEREST BE PAID ON BACK PAY FOUND DUE FOR THE PERIOD OF HIS SEPARATION IS DENIED BECAUSE PAYMENT OF INTEREST BY THE GOVERNMENT ON ITS UNPAID ACCOUNTS OR CLAIMS IS PERMITTED ONLY WHEN INTEREST IS PROVIDED FOR IN LEGAL AND PROPER CONTRACTS OR WHERE THE ALLOWANCE OF INTEREST IS SPECIFICALLY DIRECTED BY STATUTE.

IN THE MATTER OF BACK PAY ENTITLEMENT UPON REINSTATEMENT AFTER UNJUSTIFIED SEPARATION ACTION, MAY 6, 1974:

THIS DECISION IS IN RESPONSE TO A REQUEST BY THE DEPARTMENT OF THE AIR FORCE ARISING OUT OF THE DIRECTIVE TO IT BY THE CIVIL SERVICE COMMISSION THAT MR. A. ERNEST FITZGERALD, WHOSE EMPLOYMENT HAD BEEN TERMINATED BY REDUCTION-IN-FORCE ACTION ON JANUARY 5, 1970, BE REINSTATED AS A CIVILIAN EMPLOYEE. THE REQUEST CONCERNS THE AMOUNT OF BACK PAY WHICH SHOULD BE ALLOWED MR. FITZGERALD UPON SUCH REINSTATEMENT UNDER THE BACK PAY PROVISIONS OF 5 U.S.C. 5596.

IT IS REPORTED THAT MR. FITZGERALD WAS RESTORED TO DUTY EFFECTIVE DECEMBER 10, 1973; HIS GROSS BACK PAY FOR THE PERIOD OF SEPARATION WAS $139,907.84; DEDUCTIONS FOR RETIREMENT, LUMP-SUM LEAVE PAYMENT AND SEVERANCE PAY HAVE BEEN ESTABLISHED AT $14,926.97; DEDUCTIONS, IF ANY, FOR HEALTH INSURANCE PREMIUMS FOR THE SEPARATION PERIOD HAVE NOT BEEN ESTABLISHED IN THE ABSENCE OF AN ELECTION BY MR. FITZGERALD UNDER THE PROVISIONS OF 5 U.S.C. 8908; AND HIS BACK PAY BEFORE DEDUCTION FOR OUTSIDE EARNINGS AS REQUIRED BY 5 U.S.C. 5596 IS $124,980.87.

ACCORDING TO AN AFFIDAVIT DATED NOVEMBER 16, 1973, MR. FITZGERALD, SUBSEQUENT TO HIS ERRONEOUS SEPARATION ON JANUARY 5, 1970, OBTAINED EMPLOYMENT WITH TWO COMMITTEES OF CONGRESS - JOINT ECONOMIC COMMITTEE AND HOUSE POST OFFICE AND CIVIL SERVICE COMMITTEE - AND HE SECURED A MINIMUM AMOUNT OF WORK AS A MANAGEMENT CONSULTANT. MR. FITZGERALD TAKES THE POSITION THAT DURING THE PERIOD JANUARY 6, 1970, THROUGH OCTOBER 31, 1973, HIS INCOME FROM EMPLOYMENT ENGAGED IN TO TAKE THE PLACE OF HIS AIR FORCE EMPLOYMENT TOTALED $49,661.31; $46,204.31 FROM HIS CONGRESSIONAL CONTRACTS AND $3,457 FROM MANAGEMENT CONSULTING INCLUDING DIRECTOR'S FEES. ADDITIONALLY, MR. FITZGERALD STATES:

DURING THE SAME PERIOD OF TIME, I ENGAGED IN LIMITED TEACHING, LECTURING AND WRITING ACTIVITIES WHICH ALSO GENERATED SOME INCOME. NONE OF THESE ACTIVITIES WAS PART OF WHAT HAD BEEN MY NORMAL WORK FUNCTION WITH THE DEPARTMENT OF THE AIR FORCE. THESE ADDITIONAL ACTIVITIES COULD HAVE BEEN PERFORMED OUTSIDE OF NORMAL WORK HOURS AND WERE NOT INCONSISTENT WITH, NOR DID THEY TAKE THE PLACE OF, MY EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE.

THE AGENCY REQUESTS A DECISION AS TO THE PROPER TREATMENT OF THE INTERIM EARNINGS FROM THE TEACHING, LECTURING, AND WRITING ACTIVITIES MENTIONED IN THE ABOVE QUOTE.

MR. FITZGERALD IS ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596 BECAUSE HE WAS REINSTATED IN HIS FORMER POSITION ON THE BASIS OF A TIMELY APPEAL RESULTING IN A FINDING BY APPROPRIATE AUTHORITY THAT HE HAD UNDERGONE AN UNJUSTIFIED OR AN UNWARRANTED PERSONNEL ACTION RESULTING IN THE WITHDRAWAL OF HIS PAY. HOWEVER, BACK PAY UNDER THAT PROVISION INVOLVES ADJUSTMENTS IN THE AMOUNT OF BACK PAY AND OTHER BENEFITS DUE THE EMPLOYEE. REGULATIONS OF THE CIVIL SERVICE COMMISSION IMPLEMENTING THAT PROVISION OF LAW ARE FOUND IN SECTIONS 550.801-804 OF TITLE 5, CODE OF FEDERAL REGULATIONS (CFR). SUBSECTION 550.804(E) WHICH SETS FORTH IN PART HOW THE BACK PAY DUE AN EMPLOYEE IS TO BE COMPUTED PROVIDES:

(E) IN COMPUTING THE AMOUNT OF BACK PAY DUE AN EMPLOYEE UNDER THIS SECTION AND SECTION 5596 OF TITLE 5, U.S.C. THE AGENCY SHALL DEDUCT THE AMOUNTS EARNED BY THE EMPLOYEE FROM OTHER EMPLOYMENT DURING THE PERIOD COVERED BY THE CORRECTED PERSONNEL ACTION. THE AGENCY SHALL INCLUDE AS OTHER EMPLOYMENT ONLY THAT EMPLOYMENT ENGAGED IN BY THE EMPLOYEE TO TAKE THE PLACE OF THE EMPLOYMENT FROM WHICH THE EMPLOYEE WAS SEPARATED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER 8, AT SUBPARAGRAPH S8-5F, FURTHER EXPLAINS THE REQUIREMENT OF THE ABOVE REGULATION AS FOLLOWS:

F. AMOUNT OF ENTITLEMENT. WHEN AN EMPLOYEE HAS BEEN SEPARATED FROM HIS POSITION BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH IS CORRECTED, THE AMOUNT OF HIS ENTITLEMENT IS THE DIFFERENCE BETWEEN THE AMOUNT HIS GOVERNMENT INCOME SHOULD HAVE BEEN AND THE AMOUNT WHICH HE ACTUALLY EARNED IN AN EMPLOYMENT OBTAINED TO TAKE THE PLACE OF HIS GOVERNMENT EMPLOYMENT. IN THIS CONNECTION, AN AMOUNT EARNED IN EMPLOYMENT OBTAINED TO TAKE THE PLACE OF FEDERAL GOVERNMENT EMPLOYMENT MEANS "NET EARNINGS" - THAT IS, GROSS EARNINGS LESS LOSSES AND CERTAIN EXPENSES INCURRED IN CONNECTION WITH THE INTERIM EMPLOYMENT OR BUSINESS. (SEE 35 COMP. GEN. 268.) *** IF THE EMPLOYEE WERE ALREADY WORKING IN A PART-TIME JOB AT THE TIME OF HIS REMOVAL, SUSPENSION, OR FURLOUGH FROM HIS GOVERNMENT EMPLOYMENT AS A RESULT OF THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE PART-TIME JOB IS NOT OTHER EMPLOYMENT WITHIN THE MEANING OF SECTION 5596 OF TITLE 5, UNITED STATES CODE, BECAUSE IT DOES NOT TAKE THE PLACE OF THE GOVERNMENT EMPLOYMENT (UNPUBLISHED COMPTROLLER GENERAL DECISION B-148637, JANUARY 29, 1968). IF THE EMPLOYEE WERE ABLE TO EXPAND HIS PART-TIME JOB TO A FULL-TIME JOB, OR WERE TO TAKE A SECOND PART-TIME JOB, AS A SUBSTITUTE FOR GOVERNMENT EMPLOYMENT, ONLY THOSE HOURS WORKED ON THE FULL-TIME JOB IN EXCESS OF THE AGGREGATE OF THE HOURS WORKED ON THE PART-TIME JOB, OR ONLY THE HOURS WORKED ON THE SECOND PART-TIME JOB, AS THE CASE MAY BE, ARE CONSIDERED AS OTHER EMPLOYMENT IN PLACE OF GOVERNMENT EMPLOYMENT. IN OTHER WORDS, THE ONLY EARNINGS FROM OTHER EMPLOYMENT THAT NEED NOT BE DEDUCTED FROM BACK PAY ARE EARNINGS FROM OUTSIDE EMPLOYMENT THE EMPLOYEE ALREADY HAD BEFORE THE UNJUSTIFIED SUSPENSION OR SEPARATION. (SEE UNPUBLISHED COMPTROLLER GENERAL DECISION B -148637, DATED JANUARY 29, 1968.) AN AGENCY SHOULD OBTAIN A STATEMENT OR AFFIDAVIT FROM THE EMPLOYEE COVERING HIS OUTSIDE EARNINGS. IN COMPUTING AN EMPLOYEE'S BACK PAY, THE LAW DOES NOT CONTEMPLATE A DAILY OR WEEKLY COMPARISON OF THE BACK PAY WITH THE EMPLOYEE'S OUTSIDE EARNINGS, BUT RATHER THE TOTAL AMOUNT OF OUTSIDE EARNINGS IS COMPARED WITH THE TOTAL AMOUNT OF BACK PAY OTHERWISE DUE. (SEE 48 COMP. GEN. 572.)

IN A MEMORANDUM OF JANUARY 15, 1974, TO THE AGENCY CIVILIAN PERSONNEL OFFICE, MR. FITZGERALD, WITH FURTHER REFERENCE TO HIS TEACHING, LECTURING, AND WRITING STATES:

1. I AM AN INDUSTRIAL ENGINEER, SPECIALIZING IN MANAGEMENT CONTROL SYSTEMS AND COST ANALYSIS, BUT FOR MANY YEARS I HAVE ALSO ENGAGED IN TEACHING, LECTURING AND WRITING.

2. I WAS HEAVILY ENGAGED IN TEACHING, LECTURING AND WRITING IN THE PERIOD IMMEDIATELY PRECEDING MY ILLEGAL FIRING BY THE AIR FORCE. (SEE ATTACHMENTS 1 AND 2.) (NOT ATTACHED.)

3. WHILE MY FIRING WAS BEING APPEALED, I SOUGHT AND SECURED ALTERNATIVE EMPLOYMENT WITH CONGRESSIONAL COMMITTEES AND WITH PRIVATE ORGANIZATIONS. YOU HAVE MY AFFIDAVIT ON THIS. I ALSO CONTINUED MY TEACHING, LECTURING AND WRITING ACTIVITIES.

4. SO LONG AS THE ACTIVITIES THEMSELVES AND PAY FOR THEM ARE ALLOWABLE CONCURRENTLY WITH GOVERNMENT EMPLOYMENT, THE AMOUNT AND, TO A LARGE EXTENT, THE TIMING OF RECEIPTS OF MONEY ARE IMMATERIAL TO THE QUESTION AT HAND. WHEN THE PAYER IS NON-GOVERNMENT, THE RATE OF COMPENSATION FOR SUCH ALLOWABLE ACTIVITIES IS THE SOLE CONCERN OF BUYER, SELLER AND THE INTERNAL REVENUE SERVICE. AS FOR THE TIMING OF RECEIPT OF MONEY PAID OR ADVANCED FOR THE TYPE OF TEACHING I HAVE BEEN DOING, FOR LECTURING AND FOR WRITING, EARNINGS MAY BE RETAINED IN PUBLISHERS' OR OTHER AGENTS' ACCOUNTS FOR THE BENEFIT OF THE AGENTS' PRINCIPAL AND TO BE DRAWN AT THE DISCRETION OF THE PRINCIPAL. THIS ARRANGEMENT IS PERMITTED IN RECOGNITION OF THE FACT THAT THERE IS LITTLE OR NO YEAR-TO-YEAR CORRELATION OF WORK DONE AND PAY RECEIVED IN THIS TYPE OF WORK. A MAJOR BOOK, FOR EXAMPLE, IS USUALLY THE END PRODUCT OF YEARS OF EXPERIENCE AND RESEARCH, ALL OF WHICH MUST TAKE PLACE BEFORE THE BOOK IS WRITTEN AND SOLD. SUBSEQUENTLY, YEARS MAY PASS BEFORE ANOTHER PRODUCT IS MARKETED. OTHER WRITING AND LECTURES FOR THE PURPOSE OF TEACHING NON-STANDARD, UNIQUE SUBJECT MATTER HAVE SIMILAR LEAD TIMES. IN SUCH CASES, THE AUTHOR AND LECTURER IS, IN EFFECT, SELLING AN ACCUMULATION OF EXPERIENCE, RESEARCH, ANALYSIS AND INSIGHTS. CERTAINLY THIS WAS TRUE OF THE WORK I HAVE BEEN DOING ALONG THESE LINES.

THE REFERENCES TO WRITING OF A BOOK ARE PERTINENT IN VIEW OF THE PUBLICATION OF "THE HIGH PRIESTS OF WASTE" BY A. ERNEST FITZGERALD, W. W. NORTON AND COMPANY, INC., NEW YORK, COPYRIGHT 1972.

BY LETTER OF MARCH 12, 1974, MR. FITZGERALD'S ATTORNEY ADVISED THAT NET EARNINGS FROM LECTURING AND WRITING - TEACHING ACTIVITY IS INCLUDED IN LECTURING - DURING THE PERIOD OF MR. FITZGERALD'S SEPARATION UP TO OCTOBER 31, 1973, TOTALED $47,975 - $34,238 FROM LECTURING AND MISCELLANEOUS WRITING AND $13,737 FROM HIS BOOK.

IN CONNECTION WITH OUR CONSIDERATION OF THESE ACTIVITIES OUR ATTENTION HAS BEEN DIRECTED TO DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 5500.7, AUGUST 8, 1967, CONCERNING STANDARDS OF CONDUCT WHICH STATES IN PARAGRAPH X.D. AS FOLLOWS:

DOD PERSONNEL ARE ENCOURAGED TO ENGAGE IN TEACHING, LECTURING, AND WRITING. HOWEVER, AN EMPLOYEE SHALL NOT, EITHER FOR OR WITHOUT COMPENSATION, ENGAGE IN TEACHING, LECTURING, OR WRITING THAT IS DEPENDENT ON INFORMATION OBTAINED AS A RESULT OF HIS GOVERNMENT EMPLOYMENT, EXCEPT WHEN THAT INFORMATION HAS BEEN PUBLISHED OR IS AVAILABLE TO THE GENERAL PUBLIC OR WILL BE MADE AVAILABLE ON REQUEST, OR WHEN THE AGENCY HEAD GIVES WRITTEN AUTHORIZATION FOR THE USE OF NONPUBLIC INFORMATION ON THE BASIS THAT THE USE IS IN THE PUBLIC INTEREST. ***

WHILE WE DO NOT QUESTION MR. FITZGERALD'S AFFIDAVIT THE TEST WHICH HAS BEEN APPLIED BY THIS OFFICE TO DETERMINE WHETHER INCOME RECEIVED IS DEDUCTIBLE FROM BACK PAY IS NOT WHETHER THE WORK WHICH GENERATED THE INCOME WAS COMPATIBLE WITH THE GOVERNMENT DUTIES OR WHETHER THE WORK COULD HAVE BEEN PERFORMED IN ADDITION TO HIS GOVERNMENT DUTIES. B 150550, JANUARY 28, 1963. RATHER THE DETERMINATION IS BASED UPON A COMPARISON OF THE OUTSIDE WORK PERFORMED OR INCOME RECEIVED PRIOR TO THE IMPROPER SEPARATION AND THAT PERFORMED AFTER SUCH SEPARATION. B 176048, FEBRUARY 28, 1973. SEE ALSO FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, SUPRA.

SINCE MR. FITZGERALD ENGAGED IN LECTURING AND WRITING PRIOR TO HIS SEPARATION AS WELL AS THEREAFTER DURING THE INTERIM PRIOR TO HIS RESTORATION, THE AMOUNT RECEIVED FOR LECTURING DURING THE PERIOD OF HIS SEPARATION NEED NOT BE DEDUCTED FROM HIS BACK PAY TO THE EXTENT THAT HE IS ABLE TO ESTABLISH THE VOLUME OF SUCH LECTURING AND WRITING ACTIVITIES PRIOR TO HIS SEPARATION. THIS MAY BE DONE ON AN EARNINGS BASIS, ON AN HOURLY BASIS, OR ON THE BASIS OF THE NUMBER OF LECTURES GIVEN AND ARTICLES WRITTEN DURING A REPRESENTATIVE PERIOD PRIOR TO HIS SEPARATION. IF IT IS SHOWN THAT HIS ACTIVITIES IN THESE FIELDS DID NOT INCREASE SUBSTANTIALLY DURING HIS PERIOD OF SEPARATION NO DEDUCTION FROM BACK PAY IS REQUIRED. IF, ON THE OTHER HAND, HE ENGAGED IN SUBSTANTIALLY MORE LECTURING AND WRITING ACTIVITIES AFTER HIS SEPARATION, DEDUCTION SHOULD BE MADE IN AN AMOUNT COMMENSURATE WITH THE INCREASE IN SUCH ACTIVITY. THUS, IF HE GAVE TWICE AS MANY LECTURES DURING THE INTERIM PERIOD HALF OF HIS EARNINGS FROM THAT SOURCE SHOULD BE DEDUCTED. IF MR. FITZGERALD CHOOSES TO BASE THE COMPARISON ON MONEY EARNED, DEDUCTION SHOULD BE MADE FOR THE AMOUNT EARNED AFTER SEPARATION WHICH IS IN EXCESS OF HIS EARNINGS PRIOR TO HIS SEPARATION.

REGARDING EARNINGS FROM WRITING A BOOK NO COMPARISON ALONG THE ABOVE LINES APPEARS TO BE POSSIBLE. IT WOULD BE REASONABLE IN THE CIRCUMSTANCES OF THIS CASE NOT TO DEDUCT THE EARNINGS DERIVED FROM THE PUBLICATION OF THE BOOK PROVIDED MR. FITZGERALD IS ABLE TO FURNISH A NOTARIZED AFFIDAVIT THAT HE WAS ENGAGED IN PREPARING A BOOK FOR A SUBSTANTIAL PERIOD PRIOR TO HIS SEPARATION AND THAT HE WOULD HAVE PUBLISHED A BOOK EVEN IF HE HAD NOT BEEN SEPARATED. IF, HOWEVER, THE WRITING OF THE BOOK RESULTED FROM HIS DISCHARGE NO SUCH AFFIDAVIT COULD BE FURNISHED AND THE INCOME RECEIVED FROM THE PUBLICATION OF THE BOOK SHOULD BE DEDUCTED FROM BACK PAY.

IF AND WHEN MR. FITZGERALD SUBMITS A COMPARISON OR COMPARISONS AND OTHER EVIDENCE REFERRED TO ABOVE, PAYMENT OF ANY AMOUNT CLEARLY DUE HIM UNDER THIS DECISION SHOULD BE MADE. ANY AMOUNT WHICH REMAINS IN DISPUTE SHOULD BE REFERRED HERE FOR DISPOSITION. IN THAT CONNECTION WE NOTE THAT MR. FITZGERALD IS ENTITLED TO BACK PAY FROM NOVEMBER 1 TO DECEMBER 10, 1973, FOR WHICH PERIOD HE HAS NOT SUBMITTED EVIDENCE OF HIS OUTSIDE EARNINGS. EVIDENCE OF SUCH OUTSIDE EARNINGS SHOULD BE OBTAINED BEFORE ANY PAYMENT IS MADE.

BY LETTER OF JANUARY 23, 1974, MR. FITZGERALD'S ATTORNEY REQUESTED THAT, IN THE EVENT AN UNFAVORABLE DECISION WERE TO BE MADE ON THE BASIS OF MATERIAL SUBMITTED, MR. FITZGERALD BE GIVEN AN OPPORTUNITY TO INTRODUCE FURTHER EVIDENCE IN SUPPORT OF HIS POSITION BEFORE SUCH ADVERSE DECISION IS REACHED AND THAT A HEARING BE HELD FOR THE PURPOSE OF TAKING TESTIMONY FROM ANY WITNESSES THAT MR. FITZGERALD OR THE AIR FORCE MAY WISH TO CALL. THE ATTORNEY WAS ADVISED THAT THIS OFFICE IS NOT VESTED WITH AUTHORITY TO HOLD ADVERSARY HEARINGS FOR THE PURPOSE OF OBTAINING SWORN TESTIMONY AND THEREFORE DECISIONS OF THE COMPTROLLER GENERAL MUST BE MADE UPON THE EVIDENCE IN THE OFFICIAL RECORD PRESENTED. THE OPPORTUNITY WAS GIVEN, HOWEVER, FOR THE SUBMISSION OF ANY ADDITIONAL DATA AND THE RECORD HAS BEEN KEPT OPEN FOR THIS PURPOSE DURING THE CONSIDERATION OF THE MATTER. LETTER OF FEBRUARY 4, 1974, MR. FITZGERALD'S ATTORNEY URGED THAT INTEREST BE PAID ON THE AMOUNT OF BACK PAY FOUND DUE HIM FOR THE PERIOD OF HIS SEPARATION FROM THE DEPARTMENT OF THE AIR FORCE. IT IS WELL SETTLED THAT SUCH PAYMENT MAY NOT BE MADE EXCEPT WHEN INTEREST IS PROVIDED FOR IN LEGAL AND PROPER CONTRACTS OR WHEN ALLOWANCE OF INTEREST IS SPECIFICALLY DIRECTED BY STATUTE. SEE ANGARICA V. BAYARD, 127 U.S. 251 (1888); UNITED STATES V. NORTH AMERICAN TRANSPORTATION AND TRADING CO., 253 U.S. 330 (1920); SEABOARD AIR LINE RAILWAY CO. V. UNITED STATES, 261 U.S. 299 (1923); SMYTH V. UNITED STATES, 302 U.S. 329 (1937); UNITED STATES V. HOTEL CO., 329 U.S. 585 (1947).

THE BACK PAY DUE MR. FITZGERALD IS FOR DETERMINATION IN ACCORDANCE WITH THIS DECISION.