B-174304, JUL 14, 1972

B-174304: Jul 14, 1972

Additional Materials:

Contact:

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

 

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

GAO AND THE COURT OF CLAIMS HAVE CONSISTENTLY HELD THAT THE ONLY EARNINGS FROM OTHER EMPLOYMENT THAT NEED NOT BE DEDUCTED FROM BACK PAY ARE EARNINGS FROM OUTSIDE EMPLOYMENT THAT THE EMPLOYEE ALREADY HAD BEFORE AN UNJUSTIFIED SUSPENSION OR SEPARATION. JACK ROSENMAN REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. YOU INDICATE THAT AFTER YOU WERE DISCHARGED FROM YOUR POSITION AT LAKEHURST NAVAL AIR STATION. YOU WERE REHIRED BY THE POST OFFICE. YOU WERE REEMPLOYED BY THE DEPARTMENT OF THE NAVY ON NOVEMBER 22. YOU NOW ARE EMPLOYED BY BOTH AGENCIES. THE AGENCY SHALL TO TAKE THE PLACE OF THE EMPLOYMENT FROM WHICH THE EMPLOYEE WAS SEPARATED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.". OUR OFFICE AND THE COURT OF CLAIMS HAVE HELD THAT THE ONLY EARNINGS FROM OTHER EMPLOYMENT THAT NEED NOT BE DEDUCTED FROM BACK PAY ARE EARNINGS FROM OUTSIDE EMPLOYMENT THE EMPLOYEE ALREADY HAD BEFORE AN UNJUSTIFIED SUSPENSION OR SEPARATION.

B-174304, JUL 14, 1972

CIVILIAN EMPLOYEE - RESTORATION TO POSITION - DEDUCTIONS FROM BACK PAY DECISION REGARDING THE DEDUCTION OF EARNINGS MADE BY JACK ROSENMAN AS A PART-TIME EMPLOYEE OF THE POSTAL SERVICE FROM THE BACK PAY AWARDED HIM FOLLOWING HIS RESTORATION TO A POSITION WITH THE DEPARTMENT OF THE NAVY UNDER THE PROVISIONS OF 5 U.S.C. 5596. GAO AND THE COURT OF CLAIMS HAVE CONSISTENTLY HELD THAT THE ONLY EARNINGS FROM OTHER EMPLOYMENT THAT NEED NOT BE DEDUCTED FROM BACK PAY ARE EARNINGS FROM OUTSIDE EMPLOYMENT THAT THE EMPLOYEE ALREADY HAD BEFORE AN UNJUSTIFIED SUSPENSION OR SEPARATION. SEE B-173426, AUGUST 27, 1971, AND PAROCZOY V. UNITED STATES, 177 CT. CL. 754 (1966). THUS, WHILE THE PROVISIONS OF 39 U.S.C. 1001 PERMIT AN EMPLOYEE OF THE POST OFFICE TO HOLD A POSITION WITH ANOTHER GOVERNMENT AGENCY CONCURRENTLY, THEY DO NOT PROVIDE THAT THE EARNINGS FROM SUCH A POSITION SHALL NOT BE DEDUCTED FROM ANY BACK PAY AWARD MADE UPON RESTORATION TO THE SECOND POSITION.

TO MR. JACK ROSENMAN

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1972, REGARDING THE PROPRIETY OF DEDUCTING YOUR EARNINGS AS A PART-TIME EMPLOYEE OF THE POSTAL SERVICE FROM THE BACK PAY AWARDED YOU FOLLOWING RESTORATION TO YOUR POSITION WITH THE DEPARTMENT OF THE NAVY UNDER THE PROVISIONS OF 5 U.S.C. 5596.

YOU INDICATE THAT AFTER YOU WERE DISCHARGED FROM YOUR POSITION AT LAKEHURST NAVAL AIR STATION, LAKEHURST, NEW JERSEY, YOU WERE REHIRED BY THE POST OFFICE, LAKEWOOD, NEW JERSEY, AS A PART-TIME EMPLOYEE IN MAY 1971. PRIOR TO THE TRIAL INCIDENT TO YOUR COURT SUIT FOR RESTORATION, THE PROVISIONS OF 39 U.S.C. 1001(D) BECAME EFFECTIVE PERMITTING YOU TO HOLD TWO FEDERAL POSITIONS CONCURRENTLY (ONE WITH THE POST OFFICE AND ONE WITH ANOTHER GOVERNMENTAL AGENCY). SUBSEQUENTLY, YOU WERE REEMPLOYED BY THE DEPARTMENT OF THE NAVY ON NOVEMBER 22, 1971. YOU NOW ARE EMPLOYED BY BOTH AGENCIES. YOU BELIEVE THAT 39 U.S.C. 1001(D) PRECLUDES THE SETOFF OF PAY EARNED IN YOUR POST OFFICE POSITION FROM YOUR BACK PAY AWARD.

SECTION 5596 OF TITLE 5, U.S.C. PROVIDES THAT THE AMOUNTS EARNED BY AN EMPLOYEE THROUGH OTHER EMPLOYMENT DURING THE PERIOD OF A WRONGFUL REMOVAL SHALL BE DEDUCTED FROM THE EMPLOYEE'S BACK PAY AWARD UPON RESTORATION TO HIS POSITION. THE REGULATION PROMULGATED BY THE CIVIL SERVICE COMMISSION TO IMPLEMENT THIS STATUTORY PROVISION, 5 CFR 550.804, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(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 TO TAKE THE PLACE OF THE EMPLOYMENT FROM WHICH THE EMPLOYEE WAS SEPARATED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION."

IN APPLYING THE STATUTE AND REGULATION, CITED ABOVE, AND SIMILAR STATUTES, OUR OFFICE AND THE COURT OF CLAIMS HAVE HELD THAT THE ONLY EARNINGS FROM OTHER EMPLOYMENT THAT NEED NOT BE DEDUCTED FROM BACK PAY ARE EARNINGS FROM OUTSIDE EMPLOYMENT THE EMPLOYEE ALREADY HAD BEFORE AN UNJUSTIFIED SUSPENSION OR SEPARATION. SEE B-173426, AUGUST 27, 1971, AND B-153737, MAY 4, 1964, COPIES ENCLOSED. ALSO SEE PAROCZOY V. UNITED STATES, 177 CT. CL. 754 (1966).

IN THE INSTANT CASE IT APPEARS THAT, WHILE YOU HAD PREVIOUSLY WORKED FOR THE POST OFFICE, YOU DID NOT OBTAIN YOUR CURRENT POST OFFICE POSITION UNTIL YOU HAD BEEN SEPARATED FROM YOUR POSITION WITH THE DEPARTMENT OF THE NAVY. THEREFORE, OUR VIEW IS THAT THE EARNINGS FROM THAT POSITION WOULD BE PROPERLY FOR SETOFF AGAINST YOUR BACK PAY AWARD. ALTHOUGH THE PROVISIONS OF 39 U.S.C. 1001 PERMIT AN EMPLOYEE OF THE POST OFFICE TO HOLD A POSITION WITH ANOTHER GOVERNMENT AGENCY CONCURRENTLY, THEY DO NOT PROVIDE EITHER EXPLICITLY OR BY IMPLICATION THAT THE EARNINGS FROM A POST OFFICE POSITION OBTAINED AFTER AN EMPLOYEE HAS BEEN SEPARATED FROM ANOTHER AGENCY SHALL NOT BE DEDUCTED FROM THE EMPLOYEE'S BACK PAY AWARD UPON RESTORATION TO THE SECOND POSITION.