B-216285, JAN 24, 1985

B-216285: Jan 24, 1985

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ETC. - BACKPAY - UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION DIGEST: NAVY EMPLOYEE WHO WAS TERMINATED UPON BEING ADVISED THAT HE WAS AN ALIEN WAS SUBSEQUENTLY REINSTATED AS A RESULT OF A FINAL DECISION OF THE MERIT SYSTEMS PROTECTION BOARD WHICH ORDERED THE CANCELLATION OF THE EMPLOYEE'S SEPARATION. THE NAVY ASKS WHETHER ITS PAYMENT OF BACKPAY AND CONTINUED SALARY TO THE EMPLOYEE INCIDENT TO HIS REINSTATEMENT WAS PROPER. THE PAYMENTS WERE PROPER SINCE THE BOARD IS A "PROPER AUTHORITY" TO DETERMINE THAT AN EMPLOYEE HAS BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION JUSTIFYING BACKPAY AND THE GENERAL ACCOUNTING OFFICE DOES NOT REVIEW A FINAL DECISION OF THE BOARD. PEPE IATA: THE MATTER PRESENTED BY THE DEPARTMENT OF THE NAVY IS WHETHER AN INDIVIDUAL WHO WAS SEPARATED FROM HIS CIVILIAN POSITION DUE TO THE FACT THAT HE WAS AN ALIEN AND WAS THEN REINSTATED BY THE AGENCY PURSUANT TO A FINAL DECISION OF THE MERIT SYSTEMS PROTECTION BOARD WAS PROPERLY AWARDED BACKPAY AND COMPENSATION INCIDENT TO HIS CONTINUED EMPLOYMENT. /1/ THE GENERAL ACCOUNTING OFFICE WILL NOT REVIEW A FINAL DECISION OR ORDER OF THE MERIT SYSTEMS PROTECTION BOARD.

B-216285, JAN 24, 1985

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACKPAY - UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION DIGEST: NAVY EMPLOYEE WHO WAS TERMINATED UPON BEING ADVISED THAT HE WAS AN ALIEN WAS SUBSEQUENTLY REINSTATED AS A RESULT OF A FINAL DECISION OF THE MERIT SYSTEMS PROTECTION BOARD WHICH ORDERED THE CANCELLATION OF THE EMPLOYEE'S SEPARATION. THE NAVY ASKS WHETHER ITS PAYMENT OF BACKPAY AND CONTINUED SALARY TO THE EMPLOYEE INCIDENT TO HIS REINSTATEMENT WAS PROPER. THE PAYMENTS WERE PROPER SINCE THE BOARD IS A "PROPER AUTHORITY" TO DETERMINE THAT AN EMPLOYEE HAS BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION JUSTIFYING BACKPAY AND THE GENERAL ACCOUNTING OFFICE DOES NOT REVIEW A FINAL DECISION OF THE BOARD.

PEPE IATA:

THE MATTER PRESENTED BY THE DEPARTMENT OF THE NAVY IS WHETHER AN INDIVIDUAL WHO WAS SEPARATED FROM HIS CIVILIAN POSITION DUE TO THE FACT THAT HE WAS AN ALIEN AND WAS THEN REINSTATED BY THE AGENCY PURSUANT TO A FINAL DECISION OF THE MERIT SYSTEMS PROTECTION BOARD WAS PROPERLY AWARDED BACKPAY AND COMPENSATION INCIDENT TO HIS CONTINUED EMPLOYMENT. /1/ THE GENERAL ACCOUNTING OFFICE WILL NOT REVIEW A FINAL DECISION OR ORDER OF THE MERIT SYSTEMS PROTECTION BOARD. ACCORDINGLY THE BOARD'S DECISION WHICH ORDERED THE CANCELLATION OF THE EMPLOYEE'S SEPARATION IS A SUFFICIENT LEGAL BASIS UPON WHICH THE AGENCY ALLOWED THE EMPLOYEE BACKPAY AND CONTINUED COMPENSATION INCIDENT TO HIS REINSTATEMENT.

MR. PEPE IATA WAS INITIALLY EMPLOYED AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, AS A GRADE WG-8, PIPEFITTING WORKER, ON JUNE 9, 1980, UNDER A TEMPORARY APPOINTMENT. THIS TEMPORARY APPOINTMENT WAS EXTENDED ON JUNE 9, 1981, AND ON DECEMBER 27, 1981, MR. IATA'S TEMPORARY APPOINTMENT WAS CONVERTED TO A CAREER CONDITIONAL APPOINTMENT.

APPARENTLY, IN JANUARY 1984 AGENCY PERSONNEL WERE INFORMED THAT MR. IATA WAS NOT A UNITED STATES CITIZEN OR NATIONAL SINCE ONLY HIS FATHER WAS FROM AMERICAN SAMOA WHILE HIS MOTHER WAS FROM WESTERN SAMOA. THE AGENCY WAS ADVISED BY AN OFFICIAL OF THE U.S. IMMIGRATION AND NATURALIZATION SERVICE THAT IN ORDER TO HAVE BEEN A UNITED STATES NATIONAL BY REASON OF BIRTH BOTH OF THE EMPLOYEE'S PARENTS WOULD HAVE TO BE NATIVES OF AMERICAN SAMOA. ACCORDINGLY, THE AGENCY CONCLUDED THAT AS AN ALIEN MR. IATA HAD BEEN IMPROPERLY APPOINTED TO A POSITION IN THE COMPETITIVE SERVICE. THUS, ON JANUARY 26, 1984, THE AGENCY SUMMARILY TERMINATED MR. IATA'S EMPLOYMENT AND RETROACTIVELY CANCELLED ITS PRIOR ACTIONS WHICH HAD APPOINTED MR. IATA TO THE PIPEFITTING WORKER POSITION.

ON APRIL 16, 1984, MR. IATA APPEALED THE TERMINATION OF HIS EMPLOYMENT AT THE NAVAL SHIPYARD TO THE SEATTLE REGIONAL OFFICE OF THE MERIT SYSTEMS PROTECTION BOARD. THE BOARD DETERMINED THAT MR. IATA WAS AN EMPLOYEE SINCE HE HAD BEEN APPOINTED BY THE AGENCY AND ENTERED INTO DUTY UNDER ALL THE CRITERIA OF 5 U.S.C. SEC. 2105(A). THE BOARD DETERMINED THAT HIS APPOINTMENT WAS NOT IN VIOLATION OF AN ABSOLUTE STATUTORY PROHIBITION, /2/ AND THAT THE EVIDENCE DID NOT SHOW THAT HE WAS GUILTY OF FRAUD, MISREPRESENTATION OF CONCEALMENT OF A MATERIAL MATTER.

THUS, THE BOARD DETERMINED THAT MR. IATA WAS AN EMPLOYEE OF THE UNITED STATES, AND, AS SUCH, WAS ENTITLED TO THE PROCEDURAL PROTECTIONS GRANTED FEDERAL EMPLOYEES IN 5 U.S.C. SEC. 7513 IN CONNECTION WITH ADVERSE PERSONNEL ACTIONS INCLUDING REMOVAL. THE BOARD STATED THAT THE AGENCY FAILED TO ACCORD MR. IATA ANY OF THE PROCEDURAL RIGHTS PROVIDED IN 5 U.S.C. SEC. 7513 AND THAT THIS "TOTAL FAILURE" TO FOLLOW THE REQUIRED ADVERSE ACTION PROCEDURES CONSTITUTED "HARMFUL PROCEDURAL ERROR" REQUIRING REVERSAL OF THE AGENCY'S DECISION TO TERMINATE MR. IATA. ACCORDINGLY THE BOARD ORDERED THE AGENCY TO CANCEL ITS ACTIONS REVOKING MR. IATA'S APPOINTMENTS. THE BOARD'S DECISION BECAME FINAL ON JULY 17, 1984.

AS A RESULT OF THE BOARD'S DECISION DIRECTING THE CANCELLATION OF HIS SEPARATION, MR. IATA WAS REINSTATED IN HIS GRADE WG-8 POSITION ON SEPTEMBER 10, 1984. IN CONNECTION WITH HIS REINSTATEMENT THE AGENCY GRANTED HIM BACKPAY UNDER 5 U.S.C. SEC. 5596 FOR THE PERIOD COVERING HIS ERRONEOUS SEPARATION. THE AGENCY NOW ASKS WHETHER ITS PAYMENT OF BACKPAY AND CONTINUED SALARY TO MR. IATA INCIDENT TO HIS REINSTATEMENT PURSUANT TO THE MERIT SYSTEMS PROTECTION BOARD'S FINAL DECISION IS PROPER.

THE MERIT SYSTEMS PROTECTION BOARD IS AN "APPROPRIATE AUTHORITY" FOR THE PURPOSE OF DETERMINING THAT AN EMPLOYEE HAS BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION JUSTIFYING BACKPAY. SEE 5 U.S.C. SEC. 550.803; GREGORIO NATIVIDAD, B-213316, FEBRUARY 23, 1984, AND ANTHONY F. LIBRANDE, B-206617, MAY 18, 1982. THE MERIT SYSTEMS PROTECTION BOARD HELD THAT MR. IATA HAD BEEN IMPROPERLY REMOVED FROM HIS POSITION AND DIRECTED THE CANCELLATION OF SUCH REMOVAL. THERE IS NO AUTHORITY FOR THE GENERAL ACCOUNTING OFFICE TO REVIEW DECISIONS AND ORDERS OF THE MERIT SYSTEMS PROTECTION BOARD. SEE ARTHUR DRAKE, B-213690, APRIL 16, 1984, AND GREGORIO NATIVIDAD, B-213316, SUPRA.

ACCORDINGLY, THERE IS NO BASIS FOR US TO OBJECT TO THE AGENCY'S REINSTATEMENT OF MR. IATA TO HIS POSITION WITH THE PUGET SOUND NAVAL SHIPYARD OR TO THE PAYMENT OF APPROPRIATE BACKPAY.

/1/ THE REQUEST FOR A DECISION IS SUBMITTED BY MS. C. M. MOWREY, HEAD DISBURSING DIVISION, PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON.

/2/ THE BOARD POINTED OUT THAT 10 U.S.C. SEC. 7473 PERMITS THE SECRETARY OF THE NAVY TO APPROVE THE APPOINTMENT OF NON-CITIZENS DESPITE OTHER LAWS TO THE CONTRARY. IN ADDITION, A RECURRING PROVISION IN THE ANNUAL APPROPRIATIONS ACTS FOR THE DEPARTMENT OF DEFENSE DURING THE PERIOD OF MR. IATA'S EMPLOYMENT PROVIDED THAT PROVISIONS OF LAW PROHIBITING THE PAYMENT OF COMPENSATION TO, OR EMPLOYMENT OF, NONCITIZENS WOULD NOT APPLY TO PERSONNEL OF THE DEPARTMENT OF DEFENSE. SECTION 704 OF PUBLIC LAW 98-212, DECEMBER 8, 1983; 97 STAT. 1421, 1437 AND SIMILAR PROVISIONS EFFECTIVE DURING FISCAL YEARS 1979 THROUGH 1984 WHICH WERE CONTAINED IN THE APPROPRIATIONS ACTS FOR THE DEPARTMENT OF DEFENSE.