B-206646 L/M, JUN 1, 1982, OFFICE OF GENERAL COUNSEL

B-206646 L/M, JUN 1, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION REQUESTS A LEGAL OPINION ON A PROPOSED PLAN TO LESSEN THE POTENTIAL WORKLOAD ASSOCIATED WITH NUMEROUS APPEALS OR GRIEVANCES THAT ARE EXPECTED TO BE FILED IN CONNECTION WITH APPROXIMATELY 30,000 FURLOUGHS IN THE NEAR FUTURE. WHILE OUR OFFICE IS NOT AWARE OF ANY APPEAL OR GRIEVANCE WHICH HAS BEEN FILED CONCERNING THIS PLAN, THE ADMINISTRATOR'S LETTERS INDICATE THAT SUCH AN EVENT MAY OCCUR IF HE DECIDES TO IMPLEMENT HIS PLAN. ACCORDINGLY, WHERE THE POSSIBILITY OF LITIGATION IS IMMINENT, WE WILL FOLLOW OUR LONGSTANDING PRACTICE OF NOT ACTING PENDING RESOLUTION OF THE LITIGATION.

J. E. MURDOCK, III, ESQ., U. S. DEPARTMENT OF TRANSPORTATION:

THIS IS IN RESPONSE TO YOUR LETTERS OF MARCH 5 AND 19, 1982, TO THE COMPTROLLER GENERAL IN WHICH YOU REQUEST A LEGAL OPINION ON A PROPOSED PLAN TO LESSEN THE POTENTIAL WORKLOAD ASSOCIATED WITH NUMEROUS APPEALS OR GRIEVANCES THAT ARE EXPECTED TO BE FILED IN CONNECTION WITH APPROXIMATELY 30,000 FURLOUGHS IN THE NEAR FUTURE. THE PROPOSED PLAN WOULD PERMIT THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION (FAA), TO MAKE A CONTINGENT DETERMINATION IN ADVANCE THAT IF AN "APPROPRIATE AUTHORITY,"OUTSIDE OF THE FAA AND AS DEFINED IN 5 C.F.R. SEC. 550.803 (1982) SHOULD MAKE A FINAL DETERMINATION THAT THE PLANNED FAA FURLOUGHS ARE ILLEGAL, THEN THE REMEDY GRANTED IN THE CASE OR CASES LITIGATED WILL BE APPLIED TO OTHER FURLOUGHED FAA EMPLOYEES WHO HAVE NOT FILED AN APPEAL OR GRIEVED THE FURLOUGH ACTION.

AFTER CAREFUL CONSIDERATION OF YOUR LETTERS, INFORMAL DISCUSSIONS WITH YOUR STAFF, AND UPON REVIEW OF THE OFFICE OF PERSONNEL MANAGEMENT'S VIEWS, AS EXPRESSED IN ITS GENERAL COUNSEL'S LETTER TO YOU OF MARCH 31, 1982, WE BELIEVE THAT IT WOULD BE INAPPROPRIATE TO ISSUE A DECISION AT THIS TIME.

IT IS A LONGSTANDING PRACTICE OF THIS OFFICE NOT TO ACT ON MATTERS WHICH ARE BEFORE A COURT OR AN ADMINISTRATIVE FORUM DURING THE PENDENCY OF LITIGATION. 58 COMP.GEN. 282, 286 (1979). WHILE WE ARE NOT AWARE OF ANY APPEAL OR GRIEVANCE WHICH HAS BEEN FILED CONCERNING YOUR PROPOSED PLAN, YOUR LETTERS INDICATE THAT SUCH AN EVENT MAY BE EXPECTED TO OCCUR IF YOU DECIDE TO IMPLEMENT IT. WHERE THE POSSIBILITY OF LITIGATION IS IMMINENT, WE WILL FOLLOW OUR PRACTICE OF NOT ACTING PENDING RESOLUTION OF THE LITIGATION. SEE JOHN H. AGEE, B-189031, MARCH 31, 1978.

ADDITIONALLY, WE THINK THAT THE LEGALITY OF YOUR PROPOSED PLAN IS CLOSELY CONNECTED WITH THE SUBJECT MATTER OF POSSIBLE LITIGATION - THE LEGALITY OF THE FURLOUGH ITSELF. THUS, APPEALS TO THE MERIT SYSTEMS PROTECTION BOARD OR GRIEVANCE PROCEDURES, AS APPROPRIATE, MAY RESULT IN RULINGS ON BOTH MATTERS BY OTHER FORUMS. IN THIS REGARD, WE NOTE THAT 5 U.S.C. SEC. 1205(A)(1) (SUPP. III 1979) PROVIDES THAT THE BOARD WILL HEAR AND ADJUDICATE ALL MATTERS WITHIN ITS JURISDICTION AND TAKE FINAL ACTION ON SUCH MATTERS, AND THAT 5 U.S.C. SEC. 7703 (SUPP. III 1979) PROVIDES FOR DIRECT JUDICIAL REVIEW OF DECISIONS OF THE BOARD. SEE ALSO 58 COMP.GEN. 198, 200 (1979).

ALTHOUGH WE DECLINE TO EXPRESS AN OPINION ON THE LEGALITY OF THE PROPOSED PLAN AT THIS TIME, WE OFFER THE FOLLOWING INFORMATION, AS REQUESTED BY YOUR STAFF, ABOUT WHICH APPROPRIATION ACCOUNTS WOULD BE CHARGED IF THE FURLOUGHS ARE FOUND TO BE ILLEGAL.

IN THE EVENT THAT AN "APPROPRIATE AUTHORITY," OTHER THAN A COURT OF COMPETENT JURISDICTION, MAKES A FINAL DETERMINATION THAT THE PLANNED FURLOUGHS ARE ILLEGAL, THE BACKPAY DUE SHOULD BE CHARGED TO THE APPROPRIATION ACCOUNTS WHICH WOULD HAVE BEEN CHARGED HAD THE AGENCY MADE THE PAYMENTS WHEN THEY WERE ORIGINALLY DUE. IF, BECAUSE OF THE AMOUNT OF TIME INVOLVED, THE APPROPRIATIONS FOR MORE THAN 1 FISCAL YEAR ARE INVOLVED, THE CHARGES SHOULD BE APPORTIONED AMONG ALL OF THE RELEVANT APPROPRIATION ACCOUNTS CONCERNED. DR. KATSURA FUKUI, 58 COMP.GEN. 115, 119 (1978). HOWEVER, SHOULD THE APPLICABLE APPROPRIATIONS BALANCE BE EXHAUSTED, A DEFICIENCY APPROPRIATION WOULD BE NECESSARY PRIOR TO THE BACKPAY PAYMENTS BEING MADE. 54 COMP.GEN. 393, 395 (1974). IN THE EVENT THAT SUCH A FINAL DETERMINATION ULTIMATELY RESULTS FROM A COURT'S JUDGMENT RATHER THAN ADMINISTRATIVE ACTION, THEN THE BACKPAY PAYMENTS MAY BE PAID FROM THE PERMANENT INDEFINITE APPROPRIATION CONTAINED IN 31 U.S.C. SEC. 724A (SUPP. III 1979) WHEN PROPERLY CERTIFIED. 58 COMP.GEN. 311 (1979). SEE ALSO B-199291, JUNE 19, 1981.