B-198202 L/M, DEC 31, 1981

B-198202 L/M, DEC 31, 1981

DIGEST: THERE IS NO BASIS UPON WHICH TO OVERTURN DETERMINATION IN THOMAS E. WITTER V. PENNSYLVANIA NATIONAL GUARD, B-198202, DECEMBER 29, 1980, WHEREIN IT WAS HELD THAT APPROPRIATED FUNDS ARE NOT AVAILABLE TO PAY COURT JUDGMENT IN WITTER, WHERE THE UNITED STATES WAS NOT A PARTY TO THE ACTION. THE RECORD SHOWS THAT COURT JUDGMENT ALLOWING BACKPAY FOR FORMER NATIONAL GUARD TECHNICIAN AGAINST THE STATE AS EMPLOYER INCLUDED 30-DAY PERIOD FOR WHICH STATE ADJUTANT GENERAL HAD ALLOWED BACKPAY. THUS, BACKPAY FOR SUCH PERIOD IS A STATE AND NOT A FEDERAL OBLIGATION.

MR. JAMES C. HISE, NATIONAL GUARD BUREAU:

WE REFER AGAIN TO YOUR SUBMISSION DATED MARCH 31, 1981, WHEREIN YOU REQUEST THAT WE RECONSIDER, IN PART, COMPTROLLER GENERAL'S DECISION, THOMAS E. WITTER V. PENNSYLVANIA NATIONAL GUARD, 462 F.SUPP. 299 (1978), B-198202, DECEMBER 29, 1980. IN THAT DECISION THIS OFFICE DETERMINED THAT APPROPRIATED FUNDS WERE NOT AVAILABLE UNDER 31 U.S.C. SEC. 724A OR OTHERWISE TO REIMBURSE THE COMMONWEALTH OF PENNSYLVANIA FOR THE COST OF THE JUDGMENT RENDERED BY THE DISTRICT COURT IN WITTER. THE BASIS OF THIS DETERMINATION WAS THAT THE JUDGMENT WAS AGAINST THE COMMONWEALTH OF PENNSYLVANIA. YOU NOW REQUEST RECONSIDERATION OF THAT PART OF OUR DECISION WHICH HELD THAT THE COMMONWEALTH OF PENNSYLVANIA MUST REPAY THE AMOUNT OF $853.20 WHICH HAD BEEN PAID OUT OF FEDERAL FUNDS AS BACKPAY FOR THE 30-DAY PERIOD FROM AUGUST 31 TO SEPTEMBER 29, 1969.

IN BRIEF, THE RECORD SHOWS THAT IN JULY 1975 MR. WITTER BROUGHT SUIT AGAINST THE PENNSYLVANIA NATIONAL GUARD AND THE ADJUTANT GENERAL OF THE PENNSYLVANIA NATIONAL GUARD FOR DAMAGES AS A RESULT OF THE FAILURE TO REEMPLOY HIM AS A NATIONAL GUARD TECHNICIAN UPON HIS RETURN FROM ACTIVE MILITARY DUTY IN VIETNAM. HAVING DETERMINED THAT HE WAS ENTITLED TO REEMPLOYMENT BY THE STATE UPON HIS RELEASE FROM ACTIVE DUTY THE DISTRICT COURT FOUND ON DECEMBER 14, 1978, THAT MR. WITTER WAS ENTITLED TO ALL THE BENEFITS HE WOULD HAVE RECEIVED HAD HE BEEN PLACED ON MILITARY LEAVE OF ABSENCE BY THE PENNSYLVANIA NATIONAL GUARD WHEN HE LEFT FOR ACTIVE DUTY AND BEEN REEMPLOYED UPON HIS RETURN. IN ADDITION, THE COURT FOUND THAT THE FAILURE TO PLACE MR. WITTER ON MILITARY LEAVE AND TO REEMPLOY HIM UPON HIS RETURN VIOLATED THE PENNSYLVANIA MILITARY LEAVE OF ABSENCE ACT, 5 P.S. 7301 ET SEQ.

ON OCTOBER 2, 1979, THE TRIAL JUDGE ORDERED THE DEFENDANT TO PAY MR. WITTER DAMAGES IN THE TOTAL AMOUNT OF $6,115.03. THIS AMOUNT REPRESENTS BACKPAY FOR THE PERIOD FROM AUGUST 1969 THROUGH JANUARY 1974, TOGETHER WITH INTEREST COMPUTED AT THE RATE OF 6 PERCENT PER ANNUM. OF THAT AMOUNT, $853.20 HAD BEEN PAID OUT OF FEDERAL FUNDS AS BACKPAY FOR THE PERIOD FROM AUGUST 31, TO SEPTEMBER 29, 1969.

WE HELD IN THE DECISION OF DECEMBER 29, 1980, THAT SINCE THE UNITED STATES WAS NOT NAMED AS A DEFENDANT IN THE CASE AND SINCE THE JUDGMENT IN WITTER WAS AGAINST THE COMMONWEALTH OF PENNSYLVANIA, APPROPRIATED FUNDS WERE NOT AVAILABLE UNDER 31 U.S.C. SEC. 724A OR OTHERWISE TO REIMBURSE THE COMMONWEALTH OF PENNSYLVANIA FOR THE COST OF THE JUDGMENT. WE ALSO STATED THEREIN THAT ALTHOUGH MR. WITTER WOULD HAVE BEEN PAID FROM FEDERAL FUNDS HAD HE BEEN REEMPLOYED BY THE PENNSYLVANIA NATIONAL GUARD SUBSEQUENT TO THE EFFECTIVE DATE OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968, THIS WOULD NOT MAKE FEDERAL FUNDS AVAILABLE FOR PAYMENTS UNDER THE BACK PAY ACT AS THE MATTER HAS BEEN SETTLED BY THE COURTS. ACCORDINGLY, WE HELD THAT APPROPRIATED FUNDS ARE NOT AVAILABLE TO REIMBURSE THE COMMONWEALTH THE COST OF THE JUDGMENT IN WITTER AND THAT THE PART OF THE JUDGMENT PAID OUT OF FEDERAL FUNDS IN THE AMOUNT OF $853.20 SHOULD BE COLLECTED FROM THE COMMONWEALTH OF PENNSYLVANIA.

IN YOUR REQUEST FOR RECONSIDERATION YOU SUGGEST THAT THE FEDERAL GOVERNMENT'S PAYMENT OF THE $853.20 AMOUNT CAN BE JUSTIFIED UNDER THE BACK PAY ACT, 5 U.S.C. SEC. 5596, AS AN ACTION SEPARATE AND DISTINCT FROM THE JUDGMENT. YOU STATE THAT THE BACKPAY FOR THE PERIOD AUGUST 31 TO SEPTEMBER 29, 1969, WAS AWARDED BY THE ADJUTANT GENERAL OF THE PENNSYLVANIA NATIONAL GUARD AFTER HE DETERMINED, AS A RESULT OF THE ORIGINAL COURT ORDER, THAT MR. WITTER SHOULD HAVE BEEN REINSTATED AS A NATIONAL GUARD TECHNICIAN UPON THE TERMINATION OF HIS MILITARY ACTIVE DUTY IN AUGUST 1969. BACKPAY WAS LIMITED TO 1 MONTH BASED ON THE ADJUTANT GENERAL'S FINDING THAT MR. WITTER WOULD HAVE BEEN SEPARATED FROM SERVICE AS A NATIONAL GUARD TECHNICIAN AFTER 30 DAYS DUE TO THE ABSENCE OF AN AVAILABLE MILITARY POSITION WHICH HE COULD OCCUPY AS REQUIRED BY 32 U.S.C. SEC. 709. YOU POINT OUT THAT UNDER THE NATIONAL GUARD TECHNICIANS ACT NATIONAL GUARD TECHNICIANS BECAME FEDERAL EMPLOYEES ON JANUARY 1, 1969, AND THAT THE STATE ADJUTANT GENERAL THEREAFTER EMPLOYED TECHNICIANS UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES OF THE ARMY AND THE AIR FORCE. THUS, YOU ASSERT THAT THE ADJUTANT GENERAL'S ACTION ALLOWING MR. WITTER BACKPAY FROM FEDERAL FUNDS UNDER THE BACK PAY ACT, 5 U.S.C. SEC. 5596, WAS CORRECT SINCE IT WAS TAKEN ON ACCOUNT OF AN ERRONEOUS FEDERAL PERSONNEL ACTION.

HAD THE ADJUTANT GENERAL'S DETERMINATION TO AWARD MR. WITTER BACKPAY BEEN MADE UNDER DIFFERENT CIRCUMSTANCES, NOT INVOLVING COURT ACTION BY THE CLAIMANT, PAYMENT FROM FEDERAL FUNDS MIGHT HAVE BEEN SUSTAINED UNDER THE AUTHORITY OF 5 U.S.C. SEC. 5596. HOWEVER, THE RECORD CLEARLY ESTABLISHES THAT THE PAYMENT WAS MADE ON THE BASIS OF THE COURT ORDER ISSUED 4 MONTHS EARLIER IN AN ATTEMPT TO DEFINE THE SCOPE OF THE DAMAGES TO BE AWARDED. THE RECORD SHOWS THAT THE JUDGMENT ENTERED BY THE COURT ON OCTOBER 2, 1979, AGAINST THE COMMONWEALTH OF PENNSYLVANIA INCLUDED AN AWARD OF BACKPAY WHICH INCLUDED THE PERIOD FROM AUGUST 1969 AND THAT THE AMOUNT WHICH HAD BEEN PAID FROM FEDERAL FUNDS WAS INCLUDED IN THE TOTAL AMOUNT OF SUCH JUDGMENT AGAINST THE COMMONWEALTH. IN ADDITION, AS YOU NOTE THE ADJUTANT GENERAL'S DETERMINATION TO ALLOW BACKPAY FOR A 30-DAY PERIOD WAS PREDICATED UPON THE COURT'S DETERMINATION ON DECEMBER 14, 1978, THAT MR. WITTER WAS ENTITLED TO BACKPAY UNDER 38 U.S.C. SEC. 2022 DUE TO THE FAILURE OF THE COMMONWEALTH, AS A STATE EMPLOYER, TO REEMPLOY HIM. UNDER THE CIRCUMSTANCES WE MUST CONTINUE TO VIEW THE JUDGMENT OF THE COURT IN WITTER AS CREATING PURELY A STATE LIABILITY TO PROVIDE BACKPAY FOR THE PERIOD AUGUST 1969 TO JANUARY 1974.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH TO OVERTURN THE DETERMINATION OF DECEMBER 29, 1980, THAT NO APPROPRIATED FUNDS ARE AVAILABLE TO PAY ANY PART OF THE COURT JUDGMENT IN THE AMOUNT OF $6,115.03 WHICH INCLUDES THE $853.20 PAYMENT MADE FROM FEDERAL FUNDS.