B-207507(1),L/M, SEP 22, 1982

B-207507(1),L/M: Sep 22, 1982

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HOUSE OF REPRESENTATIVES: THIS IS IN RESPONSE TO YOUR LETTER DATED FEBRUARY 1. WE ARE WITHHOLDING CONSIDERATION OF HIS CLAIMS AT THE PRESENT TIME CONSISTENT WITH THE POLICY OF OUR OFFICE TO DECLINE CONSIDERATION OF MATTERS WHICH ARE PENDING BEFORE COURTS OR APPELLATE BOARDS. HIS REQUEST TO EXERCISE HIS RETURN RIGHTS TO THE EASTERN REGION WAS APPROVED. HE WAS REASSIGNED TO THE POSITION OF AIR TRAFFIC CONTROL SPECIALIST AT ISLIP-MACARTHUR AIRPORT. HE WAS NOTIFIED THAT THE FAA INTENDED TO REMOVE HIM FROM HIS POSITION FOR PARTICIPATION IN A STRIKE AGAINST THE GOVERNMENT. HE WAS INFORMED THAT THE FAA WOULD SEPARATE HIM FROM HIS POSITION. WE HAVE BEEN INFORMED BY THE FAA THAT MR. THOMAS HAS FILED AN APPEAL OF HIS SEPARATION WHICH IS CURRENTLY PENDING BEFORE THE MERIT SYSTEMS PROTECTION BOARD (MSPB).

B-207507(1),L/M, SEP 22, 1982

PRECIS-UNAVAILABLE

THOMAS J. DOWNEY, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER DATED FEBRUARY 1, 1982, WITH ENCLOSURES, CONCERNING THE CLAIMS OF MR. RONALD C. THOMAS. FOR THE FOLLOWING REASONS, WE ARE WITHHOLDING CONSIDERATION OF HIS CLAIMS AT THE PRESENT TIME CONSISTENT WITH THE POLICY OF OUR OFFICE TO DECLINE CONSIDERATION OF MATTERS WHICH ARE PENDING BEFORE COURTS OR APPELLATE BOARDS.

THE RECORD IN HIS CASE DEMONSTRATES THAT AFTER COMPLETING A 2-YEAR TOUR OF DUTY AS AN INSTRUCTOR AT THE FEDERAL AVIATION ADMINISTRATION (FAA) ACADEMY, OKLAHOMA CITY, OKLAHOMA, HIS REQUEST TO EXERCISE HIS RETURN RIGHTS TO THE EASTERN REGION WAS APPROVED. ON APRIL 4, 1980, AS PART OF THE PROCESS OF RETURNING TO THE EASTERN REGION, HE SIGNED FAA FORM 1520-1, A STANDARD TRAVEL AND TRANSPORTATION AGREEMENT BY WHICH HE AGREED TO REMAIN IN GOVERNMENT SERVICE FOR A PERIOD OF 12 MONTHS FOLLOWING THE DATE OF HIS RELOCATION IN CONSIDERATION OF THE GOVERNMENT'S PAYMENT OF TRAVEL, TRANSPORTATION, AND OTHER APPLICABLE EXPENSES. HE WAS REASSIGNED TO THE POSITION OF AIR TRAFFIC CONTROL SPECIALIST AT ISLIP-MACARTHUR AIRPORT, RONKONKOMA, NEW YORK, EFFECTIVE JUNE 6, 1980, AND HE COMPLETED 1 YEAR IN SERVICE THERE ON JUNE 6, 1981, THUS FULFILLING THE TERMS OF HIS TRAVEL AND TRANSPORTATION AGREEMENT.

MR. THOMAS' SUBSEQUENT SEPARATION FROM FAA EMPLOYMENT CAME ABOUT IN THE FOLLOWING MANNER. ON AUGUST 3, 1981, A NATIONWIDE STRIKE BY MANY AIR TRAFFIC CONTROL EMPLOYEES OF THE FAA OCCURRED. BY LETTER DATED AUGUST 8, 1981, HE WAS NOTIFIED THAT THE FAA INTENDED TO REMOVE HIM FROM HIS POSITION FOR PARTICIPATION IN A STRIKE AGAINST THE GOVERNMENT, AND FOR UNAUTHORIZED ABSENCE FROM DUTY COMMENCING AUGUST 3, 1981. BY LETTER DATED AUGUST 21, 1981, HE WAS INFORMED THAT THE FAA WOULD SEPARATE HIM FROM HIS POSITION, EFFECTIVE AUGUST 24, 1981.

IN REGARD TO MR. THOMAS' CLAIMS WE NOTE THE FOLLOWING. THE DATES FOR HIS DEPENDENT'S TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS OCCURRED AFTER THE STRIKE OF AUGUST 3, 1981, BUT PRIOR TO HIS SEPARATION DATE OF AUGUST 24, 1981. HIS CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES BEGINS AFTER THE STRIKE DATE AND EXTENDS BEYOND HIS SEPARATION DATE. THE REAL ESTATE SETTLEMENT DATE (AUGUST 13, 1981) ALSO OCCURRED AFTER THE STRIKE BEGAN, BUT BEFORE HIS SEPARATION DATE. WE ALSO NOTE THAT HIS CLAIM FOR SHIPPING HOUSEHOLD GOODS DOES NOT CONTAIN THE SHIPPING AND WEIGHT DOCUMENTATION REQUIRED BY FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (MAY 1973) (FTR), PARA. 2-8.3(A)(3).

WE HAVE BEEN INFORMED BY THE FAA THAT MR. THOMAS HAS FILED AN APPEAL OF HIS SEPARATION WHICH IS CURRENTLY PENDING BEFORE THE MERIT SYSTEMS PROTECTION BOARD (MSPB). IN LIGHT OF THE TIMING OF THE EVENTS SET FORTH ABOVE, SOME OF WHICH OCCURRED AFTER THE STRIKE BEGAN, THE VARIOUS FTR PROVISIONS, SUCH AS THE PRUDENT PERSON RULE AND THE OFFICIAL BUSINESS RULE IN FTR PARA. 1-1.3, AND THE REQUIREMENTS FOR REIMBURSEMENT OF REAL ESTATE EXPENSES UNDER FTR PARA. 2-6.1, WE BELIEVE THAT HIS ENTITLEMENT TO THE CLAIMED EXPENSES MAY DEPEND ON THE LEGAL STATUS AND EFFECT OF HIS SEPARATION FROM FAA EMPLOYMENT. THE QUESTION OF THE VALIDITY OF FAA'S TERMINATION OF HIS EMPLOYMENT HAS ALREADY BEEN BROUGHT BEFORE THE MERIT SYSTEMS PROTECTION BOARD. SECTION 1205(A)(1) OF TITLE 5, UNITED STATES CODE, PROVIDES THAT THE BOARD WILL HEAR AND ADJUDICATE ALL MATTERS WITHIN ITS JURISDICTION AND TAKE FINAL ACTION ON SUCH MATTERS, AND SECTION 7703 OF TITLE 5, UNITED STATE CODE, PROVIDES FOR DIRECT JUDICIAL REVIEW OF DECISIONS OF THE BOARD.

SINCE MR. THOMAS' TRAVEL AND REAL ESTATE EXPENSE ENTITLEMENT MAY DEPEND ON THE LEGAL STATUS AND EFFECT OF HIS SEPARATION, AND SINCE THAT SAME DETERMINATION IS NOW BEFORE THE MERIT SYSTEMS PROTECTION BOARD, WE ARE WITHHOLDING CONSIDERATION OF HIS CLAIMS CONSISTENT WITH THE POLICY OF OUR OFFICE TO DECLINE CONSIDERATION OF MATTERS WHICH ARE PENDING BEFORE COURTS OR APPELLATE BOARDS.

WHEN MR. THOMAS' EMPLOYMENT STATUS WITH THE FAA IS FINALLY DETERMINED, HE MAY RESUBMIT HIS CLAIMS TO OUR OFFICE.

WE TRUST THIS PROVES RESPONSIVE TO YOUR INQUIRY.