B-160563, JAN. 6, 1967

B-160563: Jan 6, 1967

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PATTERSON'S CASE ARE SET FORTH IN MR. PATTERSON WAS GIVEN A PROBATIONARY APPOINTMENT IN THE COMPETITIVE SERVICE AS A FIELD EXAMINER. HE WAS PLACED ON ANNUAL LEAVE FROM OCTOBER 9. HE WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS OCTOBER 29. WAS SUSPENDED FEBRUARY 16. WHICH WAS DENIED BY THE NATIONAL LABOR RELATIONS BOARD IN A LETTER DATED JANUARY 12. PATTERSON WAS PLACED ON ANNUAL LEAVE EFFECTIVE JANUARY 15. PATTERSON WAS SEPARATED FROM SERVICE EFFECTIVE JULY 15. PATTERSON WAS RESTORED TO DUTY AS A LABOR MANAGEMENT RELATIONS EXAMINER. ORDMAN POINTS OUT THAT WHILE THE ABOVE-QUOTED STATEMENT SUGGESTS THAT PUB.L. 89-380 IS NOT INTENDED TO APPLY RETROACTIVELY TO CASES DECIDED PRIOR TO ENACTMENT THEREOF.

B-160563, JAN. 6, 1967

TO CHAIRMAN, NATIONAL LABOR RELATIONS BOARD:

BY LETTER DATED DECEMBER 15, 1966, WITH ENCLOSURES, YOUR GENERAL COUNSEL, MR. ARNOLD ORDMAN, TRANSMITTED FOR OUR CONSIDERATION THE CLAIM OF MR. PAUL MARK PATTERSON, AN EMPLOYEE OF THE NATIONAL LABOR RELATIONS BOARD, FOR BACK PAY UNDER PUB.L. 89-380, ENTITLED THE "BACK PAY ACT OF 1966," APPROVED MARCH 30, 1966.

THE PERTINENT FACTS OF MR. PATTERSON'S CASE ARE SET FORTH IN MR. ORDMAN'S LETTER OF DECEMBER 15 AS FOLLOWS:

"MR. PATTERSON WAS GIVEN A PROBATIONARY APPOINTMENT IN THE COMPETITIVE SERVICE AS A FIELD EXAMINER, CAF-7 ON MARCH 29, 1948, IN THE NATIONAL LABOR RELATIONS BOARD'S TENTH REGION, ATLANTA, GEORGIA. HE WAS PLACED ON ANNUAL LEAVE FROM OCTOBER 9, 1948, THROUGH OCTOBER 28, 1948. HE WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS OCTOBER 29, 1948, AND WAS SUSPENDED FEBRUARY 16, 1949, C.O.B. ON DIRECTION OF THE CHAIRMAN, LOYALTY REVIEW BOARD, FIFTH REGION, U.S. CIVIL SERVICE COMMISSION PENDING HIS APPEAL TO THE LOYALTY REVIEW BOARD * * *. THE LOYALTY REVIEW BOARD, IN A LETTER OF NOVEMBER 4, 1949, DIRECTED RESTORATION OF MR. PATTERSON TO HIS POSITION. HE RETURNED TO DUTY NOVEMBER 8, 1949. THEREAFTER HE APPLIED FOR BACK PAY, WHICH WAS DENIED BY THE NATIONAL LABOR RELATIONS BOARD IN A LETTER DATED JANUARY 12, 1950 * * *. BY BOARD ACTION OF JANUARY 15, 1954, MR. PATTERSON WAS PLACED ON ANNUAL LEAVE EFFECTIVE JANUARY 15, 1954, C.O.B. AND SUSPENDED MARCH 3, 1954 (2 HOURS) UNDER THE AUTHORITY OF EXECUTIVE ORDER 10450. MR. PATTERSON WAS SEPARATED FROM SERVICE EFFECTIVE JULY 15, 1954, C.O.B. UNDER EXECUTIVE ORDER 10450.

"BY ORDER DATED DECEMBER 29, 1959, THE U.S. DISTRICT COURT OF THE DISTRICT OF COLUMBIA, DIRECTED THE REINSTATEMENT OF MR. PATTERSON, AND AT THE SAME TIME, ORDERED THAT HIS CLAIM FOR BACK PAY FOR THE PERIOD FROM JANUARY 15, 1954, TO THE DATE OF ORDER BE DENIED WITH PREJUDICE * * *. MR. PATTERSON WAS RESTORED TO DUTY AS A LABOR MANAGEMENT RELATIONS EXAMINER, GS-9 IN REGION 14, ST. LOUIS, MISSOURI ON JANUARY 25, 1960.'

IN HIS LETTER OF DECEMBER 15 MR. ORDMAN REFERS TO THE FOLLOWING STATEMENT IN THE CIVIL SERVICE COMMISSION'S PERSONNEL MANUAL LETTER NO. 550-17, DATED AUGUST 26, 1966, PERTAINING TO THE BACK PAY ACT OF 1966:

"THE ACT CREATES NO NEW APPELLATE RIGHTS OR RIGHTS OF REVIEW, AND IT WOULD NOT APPEAR TO BE APPROPRIATE FOR A DEPARTMENT TO REOPEN A CASE WHICH HAS ALREADY BEEN DECIDED IN ORDER TO ACCORD TO AN EMPLOYEE THE BENEFITS OF THIS ACT.'

MR. ORDMAN POINTS OUT THAT WHILE THE ABOVE-QUOTED STATEMENT SUGGESTS THAT PUB.L. 89-380 IS NOT INTENDED TO APPLY RETROACTIVELY TO CASES DECIDED PRIOR TO ENACTMENT THEREOF, SECTION 3 OF THE ACT AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED UNDER SECTION 4 OF THE ACT RAISE SOME DOUBT AS TO AN AGENCY'S AUTHORITY TO REVIEW PRIOR PERSONNEL ACTIONS.

MR. ORDMAN, THEREFORE, REQUESTS OUR CONSIDERATION OF THE FOLLOWING QUESTIONS RELATING TO MR. PATTERSON'S CLAIM FOR BACK PAY:

"1. DOES THE BACK PAY ACT OF 1966 AUTHORIZE THE NATIONAL LABOR RELATIONS BOARD TO RECONSIDER ITS DECISION OF JANUARY 15, 1950, WHICH DENIED THE CLAIM OF MR. PATTERSON FOR BACK PAY COVERING THE PERIOD OCTOBER 9, 1948- NOVEMBER 7, 1949, THE DECISION BEING BASED ON THE ACT OF JUNE 10, 1948 (PUBLIC LAW 623), AND THE FACT THAT MR. PATTERSON WAS AT THAT TIME SERVING A PROBATIONARY PERIOD?

"2. IF THE AGENCY HAS SUCH AUTHORITY UNDER THE ACT, DOES SECTION 3 PERMIT AN AWARD OF BACK PAY ALTHOUGH THE UNWARRANTED PERSONNEL ACTION WAS IN FACT CORRECTED EFFECTIVE NOVEMBER 8, 1949?

"3. IF YOUR ANSWERS TO QUESTIONS 1 AND 2 ARE IN THE AFFIRMATIVE, IS IT LEGAL AND PROPER TO MAKE A SIMILAR APPLICATION OF THE BACK PAY ACT OF 1966 TO THE CLAIM FOR BACK PAY COVERING THE PERIOD JANUARY 15, 1954-JANUARY 24, 1960 IN VIEW OF THE COURT ORDER OF DECEMBER 29, 1959, DENYING THE CLAIM FOR BACK PAY WITH PREJUDICE AND ENJOINING MR. PATTERSON FROM FILING AGAIN IN ANY AGENCY OR COURT?

SECTION 3 OF PUB.L. 89-380 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 3. EACH CIVILIAN OFFICER OR EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION TAKEN PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT, WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF SUCH OFFICER OR EMPLOYEE---"

IN HIS REPORT ON H.R. 1647 (CONTAINED IN SENATE REPORT NO. 1062, DATED MARCH 10, 1966) MR. JOHN W. MACY, JR., CHAIRMAN OF THE UNITED STATES CIVIL SERVICE COMMISSION, MADE THE FOLLOWING REMARKS IN CLARIFICATION OF THE STATUTORY LANGUAGE QUOTED ABOVE:

"* * * IT LIMITS COVERAGE TO UNJUSTIFIED OR UNWARRANTED ACTIONS TAKEN ON OR AFTER THE DATE OF ENACTMENT, EXCEPT FOR (1) TIMELY EMPLOYEE APPEALS NOT YET DECIDED AT THE TIME OF ENACTMENT, AND (2) PRIOR ACTIONS REVIEWED AT AGENCY DISCRETION AND CORRECTED ON WHICH THE DECISION FAVORABLE TO THE EMPLOYEE IS MADE ON OR AFTER THE DATE OF ENACTMENT, WHETHER OR NOT THE REVIEW WAS BEGUN BEFORE ENACTMENT. * * *"

THE LANGUAGE OF SECTION 3 OF THE ACT, UNDERSCORED ABOVE, TOGETHER WITH THE ABOVE-QUOTED STATEMENT OF MR. MACY, CLEARLY INDICATES THAT THE PROVISIONS OF PUB.L. 89-380 ARE INAPPLICABLE IN CASES WHERE THE EMPLOYEE HAS BEEN RESTORED TO DUTY PRIOR TO THE DATE OF ENACTMENT OF THAT LAW. SEE DECISION OF MAY 23, 1966, B-159133, 45 COMP. GEN. --.

THE FACTS HERE ARE THAT MR. PATTERSON WAS RESTORED TO DUTY ON NOVEMBER 8, 1949, AND ON JANUARY 25, 1960, FOLLOWING TWO SEPARATE ADVERSE PERSONNEL ACTIONS. SINCE BOTH CORRECTIVE ACTIONS WERE EFFECTED PRIOR TO THE DATE OF ENACTMENT OF PUB.L. 89-380, THE PROVISIONS OF THAT LAW ARE INAPPLICABLE TO MR. PATTERSON'S CLAIM FOR BACK PAY.

FURTHER, IT IS OUR OPINION THAT ANY CLAIM MR. PATTERSON MAY HAVE HAD FOR BACK PAY INCIDENT TO HIS REMOVAL FROM THE SERVICE IN 1954 NOW IS RES JUDICATA BY VIRTUE OF THE ORDER OF THE UNITED STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA, ENTERED DECEMBER 29, 1959. HIS CLAIM UNDER THE PRIOR BACK PAY STATUTE FOR THE EARLIER PERIOD WOULD APPEAR TO BE BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237 AND ITS RELATED LEGISLATION, SECTION 236, REVISED STATUTES, 31 U.S.C. 71.