B-169753, JUN. 29, 1970

B-169753: Jun 29, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REINSTATEMENT AS AN EMPLOYEE OF THE ARMY WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 30. YOU WERE ADVISED IN THE SAID SETTLEMENT THAT THE DEPARTMENT OF THE ARMY HAD REPORTED THAT YOU RESIGNED EFFECTIVE JANUARY 31. YOU WERE ALSO ADVISED THAT THIS OFFICE HAS NO JURISDICTION OVER MATTERS INVOLVING YOUR REINSTATEMENT IN YOUR FORMER POSITION OR RESTORATION TO DUTY THEREIN. THAT SINCE YOUR CLAIM FOR DAMAGES IS ONE SOUNDING IN TORT THIS OFFICE HAS NO JURISDICTION TO CONSIDER SUCH CLAIM. SUCH STATEMENTS CONCERNING THE LACK OF JURISDICTION IN THIS OFFICE TO CONSIDER A PETITION OF A SEPARATED OR RETIRED EMPLOYEE FOR RESTORATION TO HIS FORMER POSITION OR TO AWARD DAMAGES FOR WRONGFUL REMOVAL ARE CORRECT AND MUST BE AFFIRMED.

B-169753, JUN. 29, 1970

TO DANIEL KIRK:

YOUR LETTER OF MAY 4, 1970, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR BACK PAY, DAMAGES, AND REINSTATEMENT AS AN EMPLOYEE OF THE ARMY WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 30, 1970.

YOU WERE ADVISED IN THE SAID SETTLEMENT THAT THE DEPARTMENT OF THE ARMY HAD REPORTED THAT YOU RESIGNED EFFECTIVE JANUARY 31, 1969, WITHOUT GIVING A REASON THEREFOR AND THAT YOU HAD RECEIVED FULL COMPENSATION FOR ALL SALARY DUE YOU THROUGH THAT DATE. YOU WERE ALSO ADVISED THAT THIS OFFICE HAS NO JURISDICTION OVER MATTERS INVOLVING YOUR REINSTATEMENT IN YOUR FORMER POSITION OR RESTORATION TO DUTY THEREIN, AND THAT SINCE YOUR CLAIM FOR DAMAGES IS ONE SOUNDING IN TORT THIS OFFICE HAS NO JURISDICTION TO CONSIDER SUCH CLAIM. THE SETTLEMENT INDICATED THAT JURISDICTION OVER THE QUESTION OF YOUR REINSTATEMENT RESTS WITH YOUR FORMER EMPLOYING AGENCY, THE CIVIL SERVICE COMMISSION, AND THE COURTS.

SUCH STATEMENTS CONCERNING THE LACK OF JURISDICTION IN THIS OFFICE TO CONSIDER A PETITION OF A SEPARATED OR RETIRED EMPLOYEE FOR RESTORATION TO HIS FORMER POSITION OR TO AWARD DAMAGES FOR WRONGFUL REMOVAL ARE CORRECT AND MUST BE AFFIRMED. HENCE, THIS OFFICE IS WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM THEREFOR.

SECTION 5596 OF TITLE 5, U. S. CODE, CODIFYING THE LAW WITH RESPECT TO AWARDING BACK PAY DUE TO UNJUSTIFIED PERSONNEL ACTION, PROVIDES THAT AN EMPLOYEE OF AN EXECUTIVE AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY OF THE EMPLOYEE IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD.

IN THE ABSENCE OF YOUR REINSTATEMENT OR RESTORATION TO DUTY BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION, THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT TO YOU OF ANY BACK PAY. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR BACK PAY MUST BE, AND IS SUSTAINED.