[Request for Advance Decision Concerning Computation of Backpay Upon Reinstatement To Former Position]

The Federal Aviation Administration (FAA) requested an advance decision regarding the proper computation of an employee's backpay and the propriety of reimbursing him for real estate expenses. The record showed that, although the employee had been selected for promotion to the GS-13 grade level at another duty site, he was removed from service before receiving the promotion due to his alleged participation in the air traffic controllers strike. Upon reviewing the employee's appeal of his removal, the Merit Systems Protection Board found that FAA had not proven that the employee had in fact been on strike, but that he had been absent without leave for one day. Pursuant to this finding, the agency's adverse action was reduced to a 60-day suspension, after which the employee was reinstated to his former GS-12 grade level. The employee requested that his backpay be recomputed on the basis of the promotion which he would have received had he not been separated. The employee also claimed reimbursement for the expenses of selling his house which he incurred in anticipation of his promotion and transfer. GAO found that: (1) the record clearly established that the employee would have been promoted to the higher grade level but for the unjustified personnel action which resulted in his removal; and (2) since the employee had notice of his impending removal prior to entering into the agreement for the sale of his house, the claimed real estate expenses are not allowable. Accordingly, the employee's backpay should be recomputed on the basis of the higher grade level, but the claimed real estate expenses may not be paid.