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Availability of Funds To Reimburse State for Cost of Judgment

B-198202 Dec 29, 1980
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Highlights

An advance decision was requested as to whether appropriated funds were available to reimburse Pennsylvania an amount it paid as damages pursuant to a judgment against the state in favor of a National Guard technician. Although the United States was not named a defendant in that case, the request was made in view of the fact that the federal government provides the funds for technicians' salaries and the Adjutant General of a state National Guard has been held to be an agent of the United States in matters such as employment of such technicians. The National Guard contended that the judgment in question would have run against the United States but for the failure of the adjutant general of the Pennsylvania National Guard to request federal representation in the judicial proceeding. The National Guard also contended that the judgment could have been satisfied under the Back Pay Act rather than out of state funds. The record indicated that the technician resigned his position with the National Guard so that he could go on active duty in Vietnam. Upon his return from Vietnam, he requested reemployment which was denied on the basis that the position which he had occupied had been filled and there was no similar position available. The former employee brought suit against the Pennsylvania National Guard for damages for the difference in salary and benefits he would have received had he been reemployed and the salary he actually received for a period. At the time he left for active duty, the claimant was a state rather than a federal employee. As such, he was entitled to either reemployment by the state or all the employee benefits he would have enjoyed had he been placed on military leave of absence by the state. Pennsylvania was ordered to pay him damages which represented backpay with interest. Part of the judgment was paid out of federal funds. GAO stated that the United States was not named as a defendant in the case, and the judgment was against the State of Pennsylvania. Backpay was awarded under a federal regulation which applied only to private, state, or local government employers. Appropriations of funds provided for regular governmental operations or activities, out of which a cause of action arose, are not available to pay judgments of courts in the absence of specified authority. Under the judgment rendered, Pennsylvania was liable for the damages. Therefore, it was held that the amount paid out of federal funds would be collected from the State.

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