B-195213, JUL 7, 1980

B-195213, JUL 7, 1980

DIGEST: AIR TRAFFIC CONTROL SPECIALIST WAS DISABLED AND GRANTED TOTAL DISABILITY COMPENSATION BY OFFICE OF WORKERS' COMPENSATION PROGRAMS. AGENCY LATER AWARDED HIM BACK PAY BECAUSE IT HAD IMPROPERLY REFUSED TO RESTORE HIM TO POSITION THAT DID NOT REQUIRE MEDICAL CERTIFICATION. HE IS ENTITLED TO BACK PAY, BUT DISABILITY COMPENSATION RECEIVED MUST BE DEDUCTED FROM BACK PAY AWARD. HOWEVER, HE IS NOT ENTITLED TO BACK PAY FOR PERIOD OF CONVALESCENCE WHEN HE WAS NOT READY, WILLING, AND ABLE TO PERFORM HIS DUTIES. AMOUNT OF ERRONEOUS PAYMENT FOR THAT PERIOD IS WAIVED UNDER 5 U.S.C. SEC. 5584 (1976).

THEODORE F. MORAN - REDUCTION IN BACK PAY:

MR. THEODORE F. MORAN, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA), THROUGH HIS UNION, THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), APPEALS THE DEDUCTION FROM HIS BACK PAY OF WORKERS' COMPENSATION BENEFITS PAID HIM BY THE OFFICE OF WORKERS COMPENSATION PROGRAMS (OWCP), DEPARTMENT OF LABOR, DURING THE PERIOD HE WAS ADJUDGED ENTITLED TO BACK PAY.

MR. MORAN WAS EMPLOYED BY FAA AS AN AIR TRAFFIC CONTROL SPECIALIST, GS- 12, IN ITS GREAT LAKES REGION, DES PLAINES, ILLINOIS. HE SUFFERED A HEART ATTACK IN JULY 1975, WHILE ON THE JOB, AND WAS MEDICALLY DISQUALIFIED BY FAA FOR THE POSITION. HE WAS GRANTED TOTAL DISABILITY COMPENSATION BY OWCP UNDER THE PROVISIONS OF 5 U.S.C. SEC. 8102 (1976), AND RECEIVED COMPENSATION PAYMENTS DURING THE PERIOD OF NOVEMBER 6, 1975, THROUGH JANUARY 28, 1978.

IN MARCH 1976 MR. MORAN SOUGHT TO RETURN TO WORK WITH FAA IN A POSITION WHICH DID NOT REQUIRE MEDICAL CERTIFICATION. THE FAA DECLINED TO RESTORE HIM TO SUCH A POSITION ON THE GROUND THAT HE WAS NOT "FULLY RECOVERED." HE APPEALED TO THE FEDERAL EMPLOYEE APPEALS AUTHORITY (FEAA), CIVIL SERVICE COMMISSION, CONTENDING THAT HE WAS SUFFICIENTLY RECOVERED TO PERFORM SATISFACTORILY IN A POSITION WITH A LESSER STRESS FACTOR.

THE FEAA ISSUED A DECISION FAVORABLE TO MR. MORAN ON JANUARY 28, 1978, HOLDING THAT MR. MORAN WAS ENTITLED TO BE RESTORED WITHIN THE AGENCY TO ANOTHER POSITION WHICH MOST NEARLY APPROXIMATED HIS FORMER POSITION, AIR TRAFFIC CONTROL SPECIALIST, GS-12. THE DECISION WAS BASED ON CIVIL SERVICE REGULATIONS IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, PART 353, SUBPART C, SECTION 353.304(B), WHICH PROVIDES THAT AN EMPLOYEE, WHO BECAUSE OF COMPENSABLE DISABILITY IS DISQUALIFIED FOR A POSITION TO WHICH HE HAS RESTORATION RIGHTS, IS ENTITLED, WITHIN 1 YEAR OF THE DATE HE BEGAN RECEIVING COMPENSATION, TO RESTORATION TO ANOTHER POSITION IN THE AGENCY FOR WHICH HE IS QUALIFIED THAT HAS LIKE SENIORITY, STATUS, AND PAY, OR THE NEAREST APPROXIMATION POSSIBLE.

THE FAA RESTORED MR. MORAN TO DUTY IN SUCH A POSITION ON THE NEXT DAY, JANUARY 29, 1978. THEREAFTER, THE ADMINISTRATOR, FAA, DETERMINED THAT, BECAUSE THE PROCEDURES FOR RESTORATION TO DUTY HAD NOT BEEN FOLLOWED BY THE AGENCY, MR. MORAN HAD UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AND WAS ENTITLED TO BACK PAY UNDER THE PROVISIONS OF THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1976), FROM OCTOBER 29, 1976, THE DATE OF FAA'S REFUSAL TO RESTORE HIM TO DUTY, THROUGH JANUARY 28, 1978. IMPLEMENTING THE ADMINISTRATOR'S ORDER, THE GREAT LAKES REGION OF FAA EXTENDED THE BACK PAY PERIOD BACK TO NOVEMBER 6, 1975, THE DATE MR. MORAN WAS GRANTED LEAVE WITHOUT PAY AND BEGAN RECEIVING OWCP BENEFITS. FOR THE ENTIRE PERIOD OF NOVEMBER 6, 1975, THROUGH JANUARY 28, 1978, MR. MORAN WAS FOUND TO BE ENTITLED TO $42,720.99 IN BACK PAY, LESS THE DISABILITY COMPENSATION HE RECEIVED OF $39,603.53, FOR A BALANCE OF $3,117.46, WHICH WAS PAID TO HIM.

MR. MORAN PROTESTS THE DEDUCTION OF THE WORKERS' COMPENSATION BENEFITS FROM HIS BACK PAY. ON HIS BEHALF, PATCO ARGUES THAT NOTHING IN THE BACK PAY ACT OR REGULATIONS AUTHORIZES THE DEDUCTION OF OWCP BENEFITS FROM THE BACK PAY AMOUNT. PATCO FURTHER ARGUES THAT THE FAA RELIES ON THE LANGUAGE OF SECTION 8116 OF TITLE 5 TO JUSTIFY THE REDUCTION AND THAT SUCH RELIANCE IS MISPLACED. PATCO'S ARGUMENT IS AS FOLLOWS:

"*** FIRST, 5 U.S.C.A. SEC. 5596(B)(2) SPECIFICALLY PROVIDES THAT AN EMPLOYEE, SUCH AS MR. MORAN, WHO IS ENTITLED TO BACK PAY, IS 'FOR ALL PURPOSES ... DEEMED TO HAVE PERFORMED SERVICES FOR THE AGENCY.' SEE *** 57 COMP.GEN. 464, 466 (1978). THUS, MR. MORAN'S UNLAWFUL SEPARATION AND THE REFUSAL TO RESTORE HIM TO DUTY 'IS REGARDED AS IF IT NEVER OCCURRED AND (MR. MORAN) IS DEEMED, FOR ALL PURPOSES, TO HAVE RENDERED SERVICE DURING THE PERIOD COVERED BY THE CORRECTIVE PERSONNEL ACTION.' (IBID.) THEREFORE, MR. MORAN QUALIFIES UNDER 5 U.S.C.A. SEC. 8116(A)(1), HIS BACK PAY IS 'IN RETURN FOR SERVICE ACTUALLY PERFORMED,' AND NO REDUCTION IN THAT BACK PAY FOR OWCP IS PERMISSIBLE.

"SECOND, 5 U.S.C.A. SEC. 8116 WAS DESIGNED TO PREVENT THE RECEIPT OF OWCP BENEFITS AND SALARY OR OTHER REMUNERATION AT ONE AND THE SAME TIME. THE STATUTE SPEAKS IN TERMS OF 'WHILE AN EMPLOYEE IS RECEIVING COMPENSATION ...' PATENTLY, THIS IS NOT MR. MORAN'S CASE. HE LONG AGO QUALIFIED FOR AND PROPERLY RECEIVED OWCP BENEFITS. THERE IS NOTHING IN SEC. 8116 TO BAR HIS RECEIPT AT A LATER TIME, NAMELY, NOW, OF HIS BACK PAY."

WE DISAGREE WITH PATCO FOR THE FOLLOWING REASONS. THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1976), PROVIDES THAT AN AGENCY EMPLOYEE FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION IS ENTITLED UPON CORRECTION OF THE ACTION TO RECOVER THE AMOUNT HE WOULD HAVE EARNED DURING THAT PERIOD AS IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT. THE ACT FURTHER PROVIDES THAT FOR ALL PURPOSES THE EMPLOYEE IS DEEMED TO HAVE PERFORMED SERVICES FOR THE AGENCY DURING THAT PERIOD. SECTION 5596 ENTITLES AN EMPLOYEE TO THE PAY HE NORMALLY WOULD HAVE EARNED DURING THE PERIOD OF THE IMPROPER ACTION AS IF HE HAD PERFORMED SERVICES FOR THE AGENCY DURING THAT PERIOD. THE STATUTE REQUIRES THE AGENCY TO MAKE THE EMPLOYEE WHOLE, CIAMBELLI V. UNITED STATES, 203 CT.CL. 680, 687 (1974), BUT RECOVERY IS LIMITED TO COMPENSATION LOST. SEEBACH V. UNITED STATES, 182 CT.CL. 342, 353 (1968).

THUS, THE IMPLEMENTING BACK PAY REGULATIONS, 5 C.F.R. SEC. 550.804(A) PROVIDE THAT THE AGENCY SHALL RECOMPUTE THE EMPLOYEES PAY FOR THE PERIOD OF THE CORRECTIVE ACTION AS IF THE IMPROPER PERSONNEL ACTION HAD NOT OCCURRED, BUT IN NO CASE WILL THE EMPLOYEE BE GRANTED MORE PAY THAN HE WOULD HAVE BEEN ENTITLED TO BY LAW OR REGULATION. MR. MORAN WOULD NOT HAVE RECEIVED NOR BEEN ENTITLED TO THE OWCP BENEFITS IF HE HAD BEEN EMPLOYED AND PERFORMING SERVICES FOR THE AGENCY AT THAT TIME. SINCE HE DID RECEIVE THOSE BENEFITS, MR. MORAN IS MADE WHOLE, AS IF HE HAD PERFORMED HIS REGULAR DUTIES AND RECEIVED HIS REGULAR PAY, BY DEDUCTING THOSE BENEFITS FROM HIS BACK PAY AWARD.

NOR DOES SECTION 8116(A) OF TITLE 5 HELP MR. MORAN. IN FACT, SECTION 8116(A) ON ITS FACE WOULD APPEAR TO BAR ANY BACK PAY AWARD TO MR. MORAN. HOWEVER, THE COURT OF CLAIMS IN EVERETT V. UNITED STATES, 169 CT.CL. 11, 340 F. 2D 352 (1965), HELD THAT THIS SECTION WAS ONLY INTENDED TO PRECLUDE PERSONAL INJURY ACTIONS AGAINST THE UNITED STATES AND DID NOT PRECLUDE RECOVERY FOR A WHOLLY DIFFERENT WRONG, NAMELY IMPROPER DISCHARGE UNDER THE LLOYD-LAFOLLETTE ACT IN THAT CASE. BY THE SAME TOKEN, SECTION 8116(A) DOES NOT PRECLUDE RECOVERY IN THE PRESENT CASE FOR AN UNWARRANTED PERSONNEL ACTION UNDER THE BACK PAY ACT, 5 U.S.C. SEC. 5596.

THIS DOES NOT MEAN THAT THE BACK PAY RECOVERY IS UNDIMINISHED BY OFFSETS OTHERWISE APPLICABLE. SUCH AN INTERPRETATION GOES FAR BEYOND THE PURPOSE OF THE BACK PAY ACT TO PROVIDE A "MAKE WHOLE" REMEDY. THERE IS NOTHING IN EVERETT, SUPRA, TO SUPPORT SUCH AN INTERPRETATION. IN FACT, THE PLAINTIFF IN EVERETT, IN SEEKING BACK PAY FOR BEING IMPROPERLY REMOVED FROM HIS POSITION, SOUGHT ONLY TO RECOVER HIS SALARY FOR THE REMOVAL PERIOD, "*** LESS THE AMOUNTS OF FEDERAL EMPLOYEES' DISABILITY COMPENSATION PAYMENTS HE HAS RECEIVED."

ERNEST E. SARGENT, 57 COMP.GEN. 464 (1978), CITED BY MR. MORAN, DOES NOT SUPPORT HIS CONTENTION THAT THE DISABILITY BENEFITS SHOULD NOT BE DEDUCTED. THERE, AN EMPLOYEE OF THE DISTRICT OF COLUMBIA WAS FOUND TO BE ENTITLED TO BACK PAY FOR WRONGFUL SEPARATION. WE HELD THAT THE AMOUNTS HE HAD RECEIVED FROM THE DISTRICT AS SEVERANCE PAY AND UNEMPLOYMENT COMPENSATION HAD TO BE DEDUCTED FROM HIS BACK PAY. OUR REASONING WAS THAT THE EMPLOYEE WAS ENTITLED TO RECEIVE THE AMOUNT HE WOULD HAVE RECEIVED IF THE UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED AND THAT HE WAS DEEMED TO BE EMPLOYED AT ALL TIMES DURING HIS WRONGFUL SEPARATION. SINCE SEVERANCE PAY IS CONDITIONED ON SEPARATION, WE SAID THAT THE EMPLOYEE COULD NOT CLAIM BOTH BACK PAY AND SEVERANCE PAY FOR THE SAME PERIOD.

SINCE WORKERS' COMPENSATION IS CONDITIONED UPON DISABILITY TO WORK, THE SAME CONCLUSION ARRIVED AT IN SARGENT MUST BE REACHED WITH RESPECT TO WORKERS' COMPENSATION BENEFITS. HENCE, THE TOTAL DISABILITY COMPENSATION THAT MR. MORAN RECEIVED FROM OWCP MUST BE DEDUCTED FROM HIS BACK PAY.

THE HEAD OF THE AGENCY IS AN APPROPRIATE AUTHORITY TO DETERMINE IF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAS OCCURRED. 5 C.F.R. SEC. 550.803(D) (1978). WE DO NOT QUESTION THAT DETERMINATION BY FAA. HOWEVER, IN COMPUTING BACK PAY UNDER 5 U.S.C. SEC. 5596, THE AGENCY MAY NOT INCLUDE ANY PERIOD FOR WHICH THE EMPLOYEE WAS NOT READY, WILLING, AND ABLE TO PERFORM HIS OR HER DUTIES BECAUSE OF AN INCAPACITATING ILLNESS OR INJURY. 5 C.F.R. SEC. 550.804(D)(1) (1978). THIS OFFICE HAS LONG DENIED RECEIPT OF BACK PAY BASED ON SUCH A DETERMINATION. 46 COMP.GEN. 139 (1966); 41 COMP.GEN. 774 (1962); LEE E. HOFFLER, B-128314, JANUARY 8, 1979.

IN AWARDING BACK PAY FOR THE PERIOD FROM OCTOBER 29, 1976, THROUGH JANUARY 28, 1978, THE FAA ADMINISTRATOR IMPLICITLY FOUND THAT MR. MORAN WAS READY, WILLING AND ABLE TO WORK DURING THAT PERIOD. HOWEVER, THE REGIONAL OFFICE EXTENDED THE BACK PAY PERIOD BACK TO NOVEMBER 6, 1975. SINCE MR. MORAN WAS CONVALESCING FROM HIS HEART ATTACK IN JULY 1975 UNTIL HE FIRST REQUESTED TO RETURN TO WORK IN MARCH 1976, HE WAS NOT READY, WILLING, AND ABLE TO PERFORM HIS DUTIES DURING THE CONVALESCENT PERIOD. HENCE, HE WAS NOT ENTITLED TO BACK PAY DURING THAT TIME, AND FAA'S PAYMENT OF BACK PAY FOR THAT PERIOD WAS IMPROPER.

THE PAYMENT OF BACK PAY MADE TO MR. MORAN FOR THE PERIOD OF CONVALESCENCE FROM NOVEMBER 6, 1975, UNTIL MARCH 1976, WAS AN ERRONEOUS PAYMENT OF PAY AND REPRESENTS A DEBT OWED TO THE GOVERNMENT BY MR. MORAN. HOWEVER, THE COMPTROLLER GENERAL MAY WAIVE A CLAIM OF THE GOVERNMENT, THE COLLECTION OF WHICH WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. 5 U.S.C. SEC. 5584 (1976). GENERALLY, THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OCCURRED THROUGH ADMINISTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. 4 C.F.R. SEC. 91.5(C) (1979). THE FACTS IN THIS CASE SHOW THAT THE CRITERIA HAVE BEEN MET. ACCORDINGLY, THE COLLECTION OF THE OVERPAYMENT IS HEREBY WAIVED.