B-179464, MAR 27, 1974

B-179464: Mar 27, 1974

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INCLUDING PREFERENCE ELIGIBLE EMPLOYEES WHO HAVE THE RIGHT TO APPEAL ALLEGED IMPROPER PERSONNEL ACTIONS TO THE CIVIL SERVICE COMMISSION. ARE FOR FINAL DETERMINATION BY THE POSTAL SERVICE RATHER THAN GAO IN VIEW OF THE BROAD AUTHORITY CONFERRED ON THE POSTAL SERVICE BY THE POSTAL REORGANIZATION ACT TO COMPROMISE AND SETTLE CLAIMS AGAINST IT. INCLUDING PREFERENCE ELIGIBLE EMPLOYEES WHO HAVE THE RIGHT TO APPEAL ALLEGED IMPROPER PERSONNEL ACTIONS TO THE CIVIL SERVICE COMMISSION. ARE FOR FINAL DETERMINATION BY THE PANAMA CANAL COMPANY SINCE. IS AN INDEPENDENT AGENCY OF THE UNITED STATES AND GAO THEREFORE HAS FINAL SETTLEMENT AUTHORITY OVER CLAIMS AGAINST IT PURSUANT TO 31 U.S.C. 71. PROVIDES THAT PREFERENCE ELIGIBLE EMPLOYEES IN THE UNITED STATES POSTAL SERVICE ARE ENTITLED TO THE BENEFITS OF TITLE 5 OF THE U.S.C.

B-179464, MAR 27, 1974

QUESTIONS CONCERNING THE CORRECTNESS OF COMPUTATIONS OF BACK PAY OR SETTLEMENT OF CLAIMS FOR BACK PAY BY EMPLOYEES OF THE POSTAL SERVICE, INCLUDING PREFERENCE ELIGIBLE EMPLOYEES WHO HAVE THE RIGHT TO APPEAL ALLEGED IMPROPER PERSONNEL ACTIONS TO THE CIVIL SERVICE COMMISSION, ARE FOR FINAL DETERMINATION BY THE POSTAL SERVICE RATHER THAN GAO IN VIEW OF THE BROAD AUTHORITY CONFERRED ON THE POSTAL SERVICE BY THE POSTAL REORGANIZATION ACT TO COMPROMISE AND SETTLE CLAIMS AGAINST IT. QUESTIONS CONCERNING THE CORRECTNESS OF COMPUTATIONS OF BACK PAY OR SETTLEMENT OF CLAIMS FOR BACK PAY BY EMPLOYEES OF THE PANAMA CANAL COMPANY, INCLUDING PREFERENCE ELIGIBLE EMPLOYEES WHO HAVE THE RIGHT TO APPEAL ALLEGED IMPROPER PERSONNEL ACTIONS TO THE CIVIL SERVICE COMMISSION, ARE FOR FINAL DETERMINATION BY THE PANAMA CANAL COMPANY SINCE, AS A GOVERNMENT CORPORATION, IT HAS THE AUTHORITY TO SETTLE CLAIMS AGAINST IT. THE CANAL ZONE GOVERNMENT, HOWEVER, IS AN INDEPENDENT AGENCY OF THE UNITED STATES AND GAO THEREFORE HAS FINAL SETTLEMENT AUTHORITY OVER CLAIMS AGAINST IT PURSUANT TO 31 U.S.C. 71.

TO CIVIL SERVICE COMMISSION:

THE CHAIRMAN, CIVIL SERVICE COMMISSION, SEEKS A DECISION REGARDING THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO SETTLE DISPUTES OVER PAY MATTERS BETWEEN THE POSTAL SERVICE AND ITS EMPLOYEES, AND BETWEEN THE PANAMA CANAL COMPANY/CANAL ZONE GOVERNMENT AND THEIR EMPLOYEES WHEN DISPUTES CONCERNING BACK PAY AWARDS ARISE FOLLOWING A DECISION BY THE CIVIL SERVICE COMMISSION FAVORABLE TO THE EMPLOYEE ON AN ADVERSE ACTION APPEAL.

IN HIS SUBMISSION OF THE MATTER THE CHAIRMAN POINTS OUT THAT SECTION 1005(A)(2) OF TITLE 39, U.S.C. PROVIDES THAT PREFERENCE ELIGIBLE EMPLOYEES IN THE UNITED STATES POSTAL SERVICE ARE ENTITLED TO THE BENEFITS OF TITLE 5 OF THE U.S.C. IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS IF THEY WERE IN THE COMPETITIVE SERVICE. ONE OF THE SECTIONS IN TITLE 5 APPLICABLE TO SUCH PREFERENCE ELIGIBLE EMPLOYEES IS SECTION 7701 WHICH PROVIDES THAT A PREFERENCE ELIGIBLE EMPLOYEE AGAINST WHOM AN ADVERSE ACTION HAS BEEN TAKEN BY HIS AGENCY HAS THE RIGHT TO APPEAL FROM AN ADVERSE DECISION TO THE CIVIL SERVICE COMMISSION. THE APPELLANT'S AGENCY MUST TAKE ANY CORRECTIVE ACTION RECOMMENDED BY THE COMMISSION.

UNDER SECTION 5596 OF TITLE 5, U.S.C. AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL IS FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION IS ENTITLED, UPON CORRECTION OF THE ACTION, TO BE PAID CERTAIN AMOUNTS OF BACK PAY. THE REGULATIONS OF THE COMMISSION REGARDING SUCH PAYMENTS ARE CONTAINED IN SUBPART H OF PART 550 OF TITLE 5, CODE OF FEDERAL REGULATIONS. HOWEVER, IT IS POINTED OUT BY THE COMMISSION THAT BECAUSE OF THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE, UNDER 31 U.S.C. 71, TO SETTLE ALL CLAIMS AGAINST THE GOVERNMENT OF THE UNITED STATES, THE COMMISSION'S BACK PAY REGULATIONS HAVE NO PROVISIONS FOR COMMISSION REVIEW OR VERIFICATION OF AGENCY BACK PAY COMPUTATIONS, OR ANY PROCESS FOR THE EMPLOYEE TO SECURE COLLECTION OR SETTLEMENT OF HIS CLAIM THROUGH COMMISSION ACTION.

THE POSTAL SERVICE, UNDER THE AUTHORITY GIVEN IT BY SECTION 410 OF TITLE 39, U.S.C. HAS CONTINUED IN EFFECT THE PROVISIONS OF THE POSTAL MANUAL THAT IMPLEMENTED THE CIVIL SERVICE COMMISSION REGULATIONS ISSUED UNDER 5 U.S.C. 5596. HOWEVER, SECTION 2008(C) OF TITLE 39, UNITED STATES CODE, PROVIDES AS FOLLOWS:

"(C) SUBJECT ONLY TO THE PROVISIONS OF THIS CHAPTER, THE POSTAL SERVICE IS AUTHORIZED TO MAKE SUCH EXPENDITURES AND TO ENTER INTO SUCH CONTRACTS, AGREEMENTS, AND ARRANGEMENTS, UPON SUCH TERMS AND CONDITIONS AND IN SUCH MANNER AS IT DEEMS NECESSARY, INCLUDING THE FINAL SETTLEMENT OF ALL CLAIMS AND LITIGATION BY OR AGAINST THE POSTAL SERVICE."

BASED ON THE FOREGOING, THE COMMISSION ASKS WHETHER THE GENERAL ACCOUNTING OFFICE OR THE UNITED STATES POSTAL SERVICE IS THE FINAL AUTHORITY IN DETERMINATIONS REGARDING THE CORRECTNESS OF COMPUTATIONS OF BACK PAY OR SETTLEMENT OF CLAIMS FOR BACK PAY BY PREFERENCE ELIGIBLES IN THE POSTAL SERVICE WHOSE APPEALS TO THE CIVIL SERVICE COMMISSION FROM ADVERSE DECISIONS ARE SUCCESSFUL.

IN ADDITION, A SITUATION SOMEWHAT SIMILAR TO THAT WITH RESPECT TO PREFERENCE ELIGIBLES IN THE POSTAL SERVICE IS PRESENTED REGARDING PREFERENCE ELIGIBLE EMPLOYEES OF THE PANAMA CANAL COMPANY/CANAL ZONE GOVERNMENT. SUCH EMPLOYEES ARE ALSO ENTITLED TO COMMISSION REVIEW OF DECISIONS IN ADVERSE ACTION APPEALS. HOWEVER, IT IS NOT CLEAR WHETHER THE PANAMA CANAL COMPANY/CANAL ZONE GOVERNMENT OR THE GENERAL ACCOUNTING OFFICE HAS THE FINAL ADMINISTRATIVE AUTHORITY TO SETTLE THEIR CLAIMS FOR BACK PAY THAT ACCRUE WHEN THEIR APPEALS TO THE COMMISSION ARE SUCCESSFUL.

THE COMMISSION SUGGESTS THAT IT MAY BE THE INTENT OF 31 U.S.C. 71 THAT THE AUTHORITY THEREIN GRANTED THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS AGAINST THE "GOVERNMENT OF THE UNITED STATES" EXTEND TO ALL CLAIMS AND OVER ALL ESTABLISHMENTS OR ORGANIZATIONS OF THE GOVERNMENT WITHOUT REGARD TO SPECIAL OR SEPARATE AUTHORITY THAT MAY BE GRANTED GOVERNMENT AGENCIES AND ESTABLISHMENTS, SUCH AS THE AUTHORITY GIVEN THE POSTAL SERVICE IN 39 U.S.C. 2008(C). IT IS ALSO SUGGESTED THAT THE ADOPTION OF THE PROVISIONS OF 5 U.S.C. 5596 BY THE POSTAL SERVICE MAY HAVE OPERATED TO CONTINUE THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS FOR BACK PAY BY POSTAL SERVICE EMPLOYEES, PARTICULARLY THE CLAIMS OF ITS PREFERENCE ELIGIBLE EMPLOYEES.

SECTION 2008(C) OF TITLE 39, U.S.C. ENACTED BY THE POSTAL REORGANIZATION ACT, APPROVED AUGUST 12, 1970, PUBLIC LAW 91-375, 84 STAT. 719, CONFERRED BROAD AUTHORITY ON THE POSTAL SERVICE TO SETTLE AND COMPROMISE CLAIMS BY OR AGAINST IT. ACCORDINGLY, WE HAVE CONSISTENTLY TAKEN THE POSITION THAT CLAIMS AGAINST THE POSTAL SERVICE ARE NO LONGER SUBJECT TO THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE. THIS IS SO SINCE THE SPECIFIC AUTHORITY GRANTED THE POSTAL SERVICE TO SETTLE CLAIMS AGAINST IT TAKES PRECEDENT OVER THE MORE GENERAL AUTHORITY OF THE GENERAL ACCOUNTING OFFICE UNDER 31 U.S.C. 71 TO SETTLE CLAIMS AGAINST THE "GOVERNMENT OF THE UNITED STATES." FURTHER, THE AUTHORITY OF OUR OFFICE TO REVIEW AND VERIFY AGENCY COMPUTATIONS OF BACK PAY FOLLOWING CORRECTION OF AN UNJUSTIFIED PERSONNEL ACTION DOES NOT FLOW FROM A SPECIFIC STATUTORY AUTHORITY TO DO SO UNDER 5 U.S.C. 5596, BUT RATHER FROM THE MORE GENERAL AUTHORITY TO SETTLE CLAIMS UNDER 31 U.S.C. 71. SINCE, AS PREVIOUSLY INDICATED, THE AUTHORITY TO SETTLE CLAIMS AGAINST THE POSTAL SERVICE IS NOW VESTED IN THE POSTAL SERVICE, IT IS OUR VIEW THAT QUESTIONS CONCERNING THE CORRECTNESS OF COMPUTATIONS OF BACK PAY OR SETTLEMENT OF CLAIMS FOR BACK PAY BY PREFERENCE ELIGIBLES IN THE POSTAL SERVICE WHOSE APPEALS TO THE COMMISSION ARE SUCCESSFUL ARE FOR DETERMINATION BY THE POSTAL SERVICE.

REGARDING PREFERENCE ELIGIBLES EMPLOYED BY THE PANAMA CANAL COMPANY OR CANAL ZONE GOVERNMENT, THE PANAMA CANAL COMPANY WAS CREATED AS A GOVERNMENT CORPORATION BY THE ACT OF JUNE 29, 1948, CH. 706, 62 STAT. 1075, AS AMENDED SEPTEMBER 26, 1950, CH. 1049, 64 STAT. 1041. SECTION 65 OF CHAPTER 5, TITLE 2, CANAL ZONE CODE (76A STAT. 11 (1962)), SETS FORTH THE GENERAL POWERS OF THE PANAMA CANAL COMPANY, AND PROVIDES, IN PART, AS FOLLOWS:

"(A) THE PANAMA CANAL COMPANY MAY:

"(3) SUE AND BE SUED IN ITS CORPORATE NAME ***.

"(5) DETERMINE THE CHARACTER OF, AND NECESSITY FOR, ITS OBLIGATIONS AND EXPENDITURES AND THE MANNER IN WHICH THEY SHALL BE INCURRED, ALLOWED, AND PAID, AND INCUR, ALLOW, AND PAY THEM ***."

IN VIEW OF THAT STATUTORY PROVISION THIS OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS AGAINST THE PANAMA CANAL COMPANY, INCLUDING CLAIMS FOR BACK PAY BY PREFERENCE ELIGIBLES. THE PANAMA CANAL COMPANY IS NOT PRECLUDED, HOWEVER, FROM SEEKING AN ADVANCE DECISION OF AN ADVISORY NATURE FROM THIS OFFICE WHERE DOUBT EXISTS REGARDING COMPUTATIONS OF BACK PAY. SEE, E.G., 27 COMP. GEN. 429 (1948).

THE CANAL ZONE GOVERNMENT, ON THE OTHER HAND, IS AN INDEPENDENT AGENCY OF THE UNITED STATES WHICH HAS NOT BEEN AUTHORIZED BY STATUTE TO SETTLE ITS CLAIMS. THUS THE AUTHORITY OF OUR OFFICE UNDER 31 U.S.C. 71 WOULD EXTEND TO CLAIMS AGAINST THE CANAL ZONE GOVERNMENT. ACCORDINGLY, THE FINAL ADMINISTRATIVE AUTHORITY FOR THE SETTLEMENT OF CLAIMS FOR BACK PAY BY PREFERENCE ELIGIBLES EMPLOYED BY THE CANAL ZONE GOVERNMENT IS THE GENERAL ACCOUNTING OFFICE.