B-175373, APR 21, 1972

B-175373, APR 21, 1972

CIVILIAN EMPLOYEE - UNJUSTIFIED PERSONNEL ACTION - BACK PAY - ENTITLEMENT DECISION ALLOWING THE CLAIM OF WALTER A. DEAN FOR BACK PAY INCIDENT TO THE CORRECTION OF AN UNJUSTIFIED PERSONNEL ACTION REGARDING HIS EMPLOYMENT WITH THE BUREAU OF CUSTOMS OFFICE, SEATTLE, WASHINGTON. WHETHER THE DETERMINATION OF THE CIVIL SERVICE COMMISSION THAT MR. DEAN UNDERWENT AN UNJUSTIFIED PERSONNEL ACTION WARRANTS THE WITHDRAWAL OR REDUCTION OF HIS PAY IS A MATTER OF LAW AND FACT PROPERLY FOR CONSIDERATION OF GAO. IT IS THE OPINION OF THE COMP. GEN. THAT, IN THE INSTANT CASE, ALL THE REQUIREMENTS OF THE BACK PAY ACT OF 1966, AS AMENDED, 5 U.S.C. 5596, HAVE BEEN FULFILLED. ACCORDINGLY, MR. DEAN IS ENTITLED TO FULL BACK PAY FOR THE PERIOD OF MARCH 12 THROUGH SEPTEMBER 16, 1971, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD.

TO MR. J. ELTON GREENLEE:

YOUR LETTER OF MARCH 3, 1972, REQUESTS OUR DECISION AS TO WHETHER MR. WALTER A. DEAN, A CUSTOMS SECURITY OFFICER, GS-5, EMPLOYED BY THE BUREAU OF CUSTOMS OFFICE IN SEATTLE, WASHINGTON, MAY BE PAID AT A SALARY OF $6,938 PER YEAR FOR THE PERIOD FROM MARCH 12, 1971, THROUGH SEPTEMBER 16, 1971, IN THE ABSENCE OF THE PERFORMANCE OF SERVICES UNDER HIS APPOINTMENT.

MR. DEAN WAS ADVISED OF HIS SELECTION FOR THE POSITION OF CUSTOMS SECURITY OFFICER BY LETTER DATED FEBRUARY 3, 1971, FROM MR. PRICE D. RICE, DEPUTY ASSISTANT REGIONAL COMMISSIONER (PERSONNEL) OF CUSTOMS. RESPONSE TO THIS LETTER, MR. DEAN FORWARDED A COPY OF HIS MILITARY DISCHARGE TO MR. RICE ON FEBRUARY 8, 1971. ON MARCH 9, 1971, MR. DEAN RECEIVED A TELEGRAM INFORMING HIM THAT THE OFFER OF EMPLOYMENT OF FEBRUARY 3, 1971, WAS BEING WITHDRAWN. BY A LETTER OF MARCH 11, 1971, MR. DEAN TOLD MR. RICE THAT HE STILL CONSIDERED THE OFFER BINDING AND THAT HE WOULD REPORT FOR DUTY AS INSTRUCTED BY THE LETTER OF FEBRUARY 3.

MR. DEAN REPORTED TO THE BUREAU OF CUSTOMS OFFICE IN SEATTLE ON MARCH 12, 1971, BUT HE WAS NOT PERMITTED TO ENTER ON DUTY. EFFORTS TO RESOLVE THE CASE EXTENDED OVER THE NEXT SEVERAL MONTHS, AND IN A LETTER DATED JULY 14, 1971, MR. BERNARD ROSEN, EXECUTIVE DIRECTOR OF THE CIVIL SERVICE COMMISSION, ADVISED THE COMMISSIONER OF CUSTOMS THAT THE COMMISSION HAD CONCLUDED THAT MR. DEAN HAD BEEN LEGALLY APPOINTED TO THE POSITION OF CUSTOMS SECURITY OFFICER AS OF MARCH 12, 1971, AND THAT HE WAS ENTITLED TO ALL THE RIGHTS AND BENEFITS CONFERRED BY THE APPOINTMENT OF MARCH 12. THE COMMISSION ALSO FOUND THAT MR. DEAN WAS "IMPROPERLY PREVENTED FROM ENTERING ON DUTY AS A FEDERAL EMPLOYEE" ON MARCH 12, 1971, AND THAT THIS IMPROPER ACTION WAS "TANTAMOUNT TO REMOVAL AND DISCHARGE."

ON SEPTEMBER 2, 1971, THE DEPARTMENT OF THE TREASURY ACQUIESCED TO THE COMMISSION'S RECOMMENDATIONS AND REQUESTED THE BUREAU OF CUSTOMS TO PUT MR. DEAN ON ITS ROLLS. MR. DEAN REPORTED FOR DUTY ON SEPTEMBER 17, 1971. THE APPOINTMENT STANDARD FORM 50 HAS AN EFFECTIVE DATE OF MARCH 12, 1971, AND BEARS THE NOTATION: "MR. DEAN HAS BEEN IN LEAVE WITHOUT PAY STATUS FROM MARCH 12, 1971, THROUGH SEPTEMBER 16, 1971."

MR. DEAN'S CLAIM COMES WITHIN THE PROVISIONS OF THE BACK PAY ACT OF 1966, AS AMENDED, 5 U.S.C. 5596, THE LAW WITH RESPECT TO AWARDING BACK PAY DUE TO UNJUSTIFIED PERSONNEL ACTION. THIS STATUTE 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.

SINCE THE CIVIL SERVICE COMMISSION DETERMINED THAT MR. DEAN WAS EMPLOYED BY THE BUREAU OF CUSTOMS AS OF MARCH 12, 1971, HE IS "AN EMPLOYEE OF AN EXECUTIVE AGENCY" FOR THE PURPOSES OF 5 U.S.C. 5596. THE CIVIL SERVICE COMMISSION LETTER OF JULY 14, 1971, SIGNED BY MR. BERNARD ROSEN, EXECUTIVE DIRECTOR OF THE COMMISSION, CONSTITUTES THE REQUIRED ADMINISTRATIVE DETERMINATION BY AN APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION THAT MR. DEAN HAD UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THIS BEING A MATTER PRIMARILY FOR DETERMINATION BY THE EMPLOYING ACTIVITY, THE CIVIL SERVICE COMMISSION, OR THE COURTS. 164815, AUGUST 22, 1968, COPY ENCLOSED. WHETHER SUCH UNJUSTIFIED OR UNWARRANTED ACTION OPERATES TO WITHDRAW OR REDUCE THE PAY OF AN EMPLOYEE IS A MATTER OF LAW AND FACT PROPERLY FOR CONSIDERATION OF OUR OFFICE. SINCE MR. DEAN WAS PLACED IN A LEAVE WITHOUT-PAY STATUS FOR THE PERIOD MARCH 12, 1971, THROUGH SEPTEMBER 16, 1971, HE CLEARLY SUFFERED A WITHDRAWAL OF ALL OF HIS PAY. ACCORDINGLY, AND SINCE THE ACTION OF THE BUREAU OF CUSTOMS ON SEPTEMBER 17, 1971, IN MAKING THE APPOINTMENT RETROACTIVE TO MARCH 12, 1971, CONSTITUTES A CORRECTION OF THE PERSONNEL ACTION, WE CONCLUDE THAT ALL THE REQUIREMENTS OF 5 U.S.C. 5596 HAVE BEEN MET.

IN VIEW OF THE FOREGOING, MR. DEAN IS ENTITLED TO BACK PAY FOR THE PERIOD OF MARCH 12, 1971, THROUGH SEPTEMBER 16, 1971, IN AN AMOUNT EQUAL TO WHAT HE WOULD HAVE EARNED DURING THAT PERIOD IF HE HAD BEEN ALLOWED TO ENTER ON DUTY ON MARCH 12, 1971, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD.