[Claim for Backpay]

B-206445: Dec 6, 1982

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Shirley Jones
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An individual appealed a Claims Group denial of his request for a retroactive appointment with backpay and accrued leave. The claimant was separated from a GS-13 position at the Department of Housing and Urban Development (HUD) during a reduction in force and was informed that he had certain reemployment priority rights. He was given a temporary assignment at a GS-11 classification. He stated that he repeatedly requested a permanent position and filed a petition with the Merit Systems Protection Board (MSPB). An investigator from the Office of Special Counsel (OSC) reviewed HUD personnel records and determined that it failed to accord the employee his reemployment priority rights when it hired someone else for a GS-13 position. He filed an appeal with MSPB, and as a result of discussions between HUD and OSC, he was offered another appointment with HUD. When he accepted the position, he signed a settlement agreement and HUD officials assured him that he was not waiving his right to pursue a claim for backpay. He requested MSPB, if it determined his right to pursue a backpay claim had not been abrogated, to consider his claim withdrawn. HUD affirmed that the settlement was not to be construed to prevent him from pursuing a claim for backpay. However, rather than considering his claim withdrawn, MSPB approved the settlement and accepted it. GAO held that an individual who alleged violation of his reemployment priority rights in connection with the filling of one position, and who accepted another position pursuant to a settlement agreement with the agency, which was adopted by the MSPB as its decision on the matter, is not entitled to backpay. The employee did not have a vested right to employment by virtue of statute or regulation, nor did MSPB mandate or grant backpay. Accordingly, the Claim's Group denial was affirmed.