B-202849, MAR 9, 1982

B-202849, MAR 9, 1982

DIGEST: 1. TWO EMPLOYEES, WHO SUCCESSFULLY APPEALED REMOVAL ACTIONS BEFORE MERIT SYSTEMS PROTECTION BOARD, CLAIM ATTORNEY FEES IN CONNECTION WITH THE APPEALS. CLAIMS FOR ATTORNEY FEES UNDER AUTHORITY OF CIVIL SERVICE REFORM ACT OF 1978 ARE DENIED SINCE EMPLOYEES' APPEALS WERE PENDING ON EFFECTIVE DATE OF REFORM ACT. SAVINGS PROVISION IN SECTION 902(B) OF REFORM ACT PRECLUDES APPLICATION OF ITS PROVISIONS TO ADMINISTRATIVE PROCEEDINGS PENDING ON ITS EFFECTIVE DATE. 2. EMPLOYEE WHO WAS EMPLOYED IN NAVY APPRENTICESHIP PROGRAM ALSO RECEIVED VETERANS' EDUCATIONAL ASSISTANCE. THE VA BENEFITS WERE TERMINATED UPON HIS REMOVAL FROM NAVY POSITION, AND, AFTER SUCCESSFUL APPEAL OF REMOVAL, VA BENEFITS LAPSED DUE TO 10-YEAR TIME LIMITATION. ALTHOUGH ERRONEOUS REMOVAL CAUSED TERMINATION OF VA BENEFITS, THERE IS NO ENTITLEMENT TO REIMBURSEMENT OF LOST VA BENEFITS UNDER BACK PAY ACT WHICH RESTORES MONETARY BENEFITS THAT ARE INCIDENT TO FEDERAL EMPLOYMENT.

CARL V. COX AND EMIL F. HAWES - ATTORNEY FEES - REMOVAL ACTIONS:

ISSUES

ONE ISSUE IN THIS DECISION IS THE ENTITLEMENT OF TWO EMPLOYEES TO ATTORNEY FEES INCIDENT TO THEIR SUCCESSFUL APPEALS OF REMOVAL ACTIONS. HOLD THAT CLAIMS FOR ATTORNEY FEES UNDER THE AUTHORITY GRANTED BY THE CIVIL SERVICE REFORM ACT OF 1978 MAY NOT BE PAID IN VIEW OF THE PROVISION OF THE REFORM ACT PRECLUDING THE APPLICATION OF THE ACT TO ADMINISTRATIVE PROCEEDINGS WHICH WERE PENDING ON ITS EFFECTIVE DATE. A SECOND ISSUE IS THE ENTITLEMENT OF AN EMPLOYEE TO PAYMENT OF VETERANS' ADMINISTRATION BENEFITS WHICH WERE TERMINATED INCIDENT TO HIS ERRONEOUS REMOVAL FROM HIS POSITION. WE HOLD THAT ALTHOUGH THE ERRONEOUS REMOVAL CAUSED TERMINATION OF THE VA BENEFITS, THERE IS NO ENTITLEMENT TO PAYMENT UNDER THE BACK PAY ACT FOR MONETARY BENEFITS WHICH ARE NOT INCIDENT TO FEDERAL EMPLOYMENT.

BACKGROUND

THIS DECISION IS IN RESPONSE TO CLAIMS FILED BY MESSRS. CARL V. COX AND EMIL F. HAWES FOR ATTORNEY FEES INCIDENT TO THEIR SUCCESSFUL APPEALS OF REMOVAL ACTIONS. IN ADDITION, MR. COX CLAIMS REIMBURSEMENT FOR VETERANS EDUCATIONAL BENEFITS WHICH WERE DENIED TO HIM DURING THE PERIOD OF HIS REMOVAL.

MR. HAWES, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, WAS REMOVED FROM HIS POSITION ON JANUARY 15, 1979, BUT ON APPEAL, HE WAS RESTORED TO HIS POSITION BY DECISION OF THE MERIT SYSTEMS PROTECTION BOARD (MSPB) DATED SEPTEMBER 29, 1979. HIS CLAIM FOR PAYMENT OF ATTORNEY FEES IN THE AMOUNT OF $4,415.49 WAS DENIED BY THE MSPB ON JANUARY 11, 1980, AND HIS REQUEST FOR RECONSIDERATION WAS DENIED ON NOVEMBER 10, 1980. THE REASON GIVEN BY THE MSPB FOR DENYING ATTORNEY FEES UNDER 5 U.S.C. SEC. 7701(G)(1) (SUPP. III 1979), WAS THAT THE AUTHORITY TO PAY ATTORNEY FEES DID NOT APPLY TO ADMINISTRATIVE PROCEEDINGS PENDING ON JANUARY 11, 1979, THE EFFECTIVE DATE OF THE CIVIL SERVICE REFORM ACT OF 1978, PUB.L. NO. 95-454, 92 STAT. 1111, OCTOBER 13, 1978. THE BOARD RULED THAT THE ADMINISTRATIVE PROCEEDING IN MR. HAWES' CASE COMMENCED ON DECEMBER 12, 1978, THE DATE HE RECEIVED NOTICE OF THE PROPOSED ADVERSE ACTION. SEE 5 C.F.R. SEC. 1201.191 (1981).

MR. COX, ALSO AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, WAS REMOVED FROM HIS POSITION AS WELDER APPRENTICE ON OCTOBER 27, 1978, BUT ON APPEAL, HE WAS RESTORED TO HIS POSITION BY A DECISION OF THE MSPB DATED APRIL 13, 1979. WE HAVE BEEN ADVISED THAT HIS CLAIM FOR ATTORNEY FEES WAS DENIED BY THE MSPB, AND MR. COX, THROUGH HIS ATTORNEY, MR. WILLIAM J. NOLD, SEEKS REIMBURSEMENT OF ATTORNEY FEES IN THE AMOUNT OF $2,704.15. IN ADDITION, MR. COX SEEKS REIMBURSEMENT OF VETERANS' EDUCATIONAL ASSISTANCE BENEFITS IN THE AMOUNT OF $529.20 WHICH WERE TERMINATED UPON HIS REMOVAL FROM THE APPRENTICESHIP PROGRAM. ONCE MR. COX WAS RESTORED TO HIS POSITION WITH THE NAVY HE WAS NO LONGER ELIGIBLE FOR VA EDUCATIONAL BENEFITS BECAUSE 10 YEARS HAD PASSED SINCE HIS LAST ACTIVE MILITARY SERVICE. MR. COX ARGUES THAT THE NAVY SHOULD REIMBURSE HIM FOR THE VA BENEFITS WHICH HE WOULD HAVE RECEIVED BUT FOR THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.

DISCUSSION

ATTORNEY FEES

WITH REGARD TO THE PAYMENT OF ATTORNEY FEES WE NOTE THAT WITH THE ENACTMENT OF THE CIVIL SERVICE REFORM ACT OF 1978, AUTHORITY WAS VESTED IN THE MERIT SYSTEMS PROTECTION BOARD UNDER 5 U.S.C. SEC. 7701(G)(1) (SUPP. III 1979) TO AWARD REASONABLE ATTORNEY FEES TO EMPLOYEES WHO PREVAIL ON APPEAL UNDER CERTAIN CONDITIONS. THIS AUTHORITY IN SECTION 7701 IS LIMITED TO THE MSPB, AND THE ONLY APPEAL FROM DETERMINATIONS OF THE MSPB IS TO THE UNITED STATES COURT OF CLAIMS OR A UNITED STATES COURT OF APPEALS. SEE 5 U.S.C. SEC. 7703 (SUPP. III 1979).

AS THE MSPB POINTED OUT IN ITS DECISION ON MR. HAWES' CLAIM FOR ATTORNEY FEES, THE REFORM ACT PRECLUDES THE APPLICATION OF ITS PROVISIONS TO ADMINISTRATIVE PROCEEDINGS PENDING ON ITS EFFECTIVE DATE, JANUARY 11, 1979. SECTION 902(B) OF THE REFORM ACT (SET OUT IN 5 U.S.C. SEC. 1101 NOTE) PROVIDES AS FOLLOWS:

"NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE PROCEEDINGS PENDING AT THE TIME SUCH PROVISION TAKES EFFECT. ORDERS SHALL BE ISSUED IN SUCH PROCEEDINGS AND APPEALS SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED."

SINCE ADMINISTRATIVE PROCEEDINGS WERE PENDING IN THE CASES OF MESSRS. COX AND HAWES ON THE EFFECTIVE DATE OF THE REFORM ACT, JANUARY 11, 1979, THERE IS NO ENTITLEMENT TO ATTORNEY FEES UNDER SECTION 7701(G)(1).

ALTHOUGH THERE IS SEPARATE AUTHORITY FOR THE PAYMENT OF ATTORNEY FEES CONTAINED IN THE BACK PAY ACT, AS AMENDED BY THE REFORM ACT, 5 U.S.C. SEC. 5596(B)(1)(A)(II) (SUPP. III 1979), THAT AUTHORITY IS ALSO LIMITED BY THE SAVINGS PROVISIONS IN SECTION 902(B) OF THE REFORM ACT. SEE LESLIE H. GRAHAM, JR., B-197737, JANUARY 8, 1982. SEE ALSO THE FINAL BACK PAY ACT REGULATIONS, SECTION 550.806(H), APPEARING AT 46 FED.REG. 58271, 58277, DECEMBER 1, 1981. THEREFORE, WE CONCLUDE THAT THERE IS NO AUTHORITY TO PAY ATTORNEY FEES INCIDENT TO THESE TWO APPEALS.

VETERANS' BENEFITS

WITH REGARD TO MR. COX'S CLAIM FOR REIMBURSEMENT FOR LOST VA BENEFITS, WE NOTE THAT UNDER THE BACK PAY ACT AN EMPLOYEE IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE ALL OR PART OF THE "PAY, ALLOWANCES, OR DIFFERENTIALS" THAT HE WOULD HAVE RECEIVED IF THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED. THE IMPLEMENTING REGULATIONS TO THE BACK PAY ACT FURTHER DEFINE "PAY, ALLOWANCES, AND DIFFERENTIALS" AS "MONETARY AND EMPLOYMENT BENEFITS TO WHICH AN EMPLOYEE IS ENTITLED BY STATUTE OR REGULATION BY VIRTUE OF THE PERFORMANCE OF A FEDERAL FUNCTION." SECTION 550.803, 46 FED.REG. 58271, 58275, DECEMBER 1, 1981. THE "ANALYSIS OF COMMENTS" ACCOMPANYING THESE FINAL REGULATIONS CITES EXAMPLES OF MONETARY AND EMPLOYMENT BENEFITS SUCH AS RETIREMENT COVERAGE, LIFE AND HEALTH INSURANCE PROGRAMS, AND SPECIAL PAY TO PHYSICIANS AND DENTISTS. SEE 46 FED.REG. 58271, 58272, DECEMBER 1, 1981. IN ADDITION, THE FEDERAL PERSONNEL MANUAL SUPP. 990-2, BOOK 550, S8 -3(F) DEFINES "ALLOWANCE" AS FOLLOWS:

"'ALLOWANCES' MEAN LIVING QUARTERS ALLOWANCE; POST OR COST OF LIVING ALLOWANCE; EDUCATIONAL ALLOWANCE; EDUCATIONAL TRAVEL ALLOWANCE; SEPARATE MAINTENANCE ALLOWANCE; REMOTE WORKSITE ALLOWANCE; UNIFORM ALLOWANCE; MEDICAL TREATMENT ALLOWANCE; TRAVEL EXPENSES TO PURSUE AN APPEAL OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION; HEALTH AND LIFE INSURANCE; AND OTHER SUBSTANTIAL MONETARY AND EMPLOYMENT BENEFITS TO WHICH AN EMPLOYEE IS ENTITLED BY LAW AND IMPLEMENTING REGULATION IN SPECIFIC CIRCUMSTANCES BY VIRTUE OF HIS OR HER FEDERAL EMPLOYMENT STATUS."

IT APPEARS THAT MR. COX, BY VIRTUE OF HIS STATUS AS A VETERAN, WAS RECEIVING VETERANS' EDUCATIONAL ASSISTANCE PURSUANT TO 38 U.S.C. SECS. 1651 ET SEQ., WHILE HE WAS EMPLOYED IN A NAVY APPRENTICESHIP PROGRAM. ALTHOUGH WE AGREE THAT BUT FOR THE ERRONEOUS REMOVAL HE WOULD HAVE CONTINUED TO RECEIVE VA BENEFITS, WE CANNOT SAY THAT MR. COX RECEIVED THE VA BENEFITS BY VIRTUE OF HIS FEDERAL EMPLOYMENT STATUS. WE BELIEVE THE BACK PAY ACT LIMITS REIMBURSEMENT TO THOSE MONETARY BENEFITS WHICH ARE INCIDENT TO FEDERAL EMPLOYMENT. NOT EVERY EMPLOYEE IN AN APPRENTICESHIP PROGRAM IS ENTITLED TO VA EDUCATIONAL ASSISTANCE, ONLY THOSE WHO QUALIFY UNDER PROVISIONS OF TITLE 38, UNITED STATES CODE. THEREFORE, WE HOLD THAT MR. COX MAY NOT BE REIMBURSED UNDER THE BACK PAY ACT FOR THE VA BENEFITS HE LOST BECAUSE OF HIS REMOVAL.

ACCORDINGLY, THE CLAIMS ARE HEREBY DENIED.