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B-165571, JUN 1, 1972

B-165571 Jun 01, 1972
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REPRESENTING A RETROACTIVE PAYMENT OF SALARY AFTER IT WAS DETERMINED THAT HE HAD BEEN WRONGLY DENIED A PROMOTION DUE TO RACIAL DISCRIMINATION. THE RESPONSIBILITY FOR DETERMINING WHETHER FUNDS APPROPRIATED BY THE CONGRESS ARE LEGALLY AVAILABLE FOR A PARTICULAR USE RESTS WITH GAO. THE COURT OF CLAIMS DECISION IS NOT CONTROLLING. THE AWARD OF SUCH BACK PAY IS NOT AUTHORIZED UNDER 5 U.S.C. 5171. NOR IS GAO AWARE OF ANY LEGISLATION PRIOR TO PUB. THE RETROACTIVE PAY WAS ERRONEOUSLY GRANTED. ROD KREGER: THERE IS BEFORE OUR OFFICE FOR DETERMINATION A QUESTION AS TO THE LEGALITY OF THE PAYMENT OF APPROXIMATELY $700 IN FAVOR OF MR. WAS ANNOUNCED TO BE FILLED BY PROMOTION FROM THE EXISTING WORK FORCE.

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B-165571, JUN 1, 1972

CIVILIAN EMPLOYEE - RETROACTIVE APPOINTMENT - DISCRIMINATION - BACK PAY DECISION REGARDING THE LEGALITY OF THE PAYMENT OF APPROXIMATELY $700 IN FAVOR OF WALTER WHITE, AN EMPLOYEE OF THE FEDERAL SUPPLY SERVICE, REGION X, REPRESENTING A RETROACTIVE PAYMENT OF SALARY AFTER IT WAS DETERMINED THAT HE HAD BEEN WRONGLY DENIED A PROMOTION DUE TO RACIAL DISCRIMINATION. ALTHOUGH THE COURT OF CLAIMS HAS ALLOWED SUCH RETROACTIVE PAYMENTS, SEE CHAMBERS V UNITED STATES, 451 F.2D 1045 (1971), THE RESPONSIBILITY FOR DETERMINING WHETHER FUNDS APPROPRIATED BY THE CONGRESS ARE LEGALLY AVAILABLE FOR A PARTICULAR USE RESTS WITH GAO, AND THE COURT OF CLAIMS DECISION IS NOT CONTROLLING. THE AWARD OF SUCH BACK PAY IS NOT AUTHORIZED UNDER 5 U.S.C. 5171, OR 5596, NOR IS GAO AWARE OF ANY LEGISLATION PRIOR TO PUB. L. 92-261, 86 STAT. 103, WHICH AUTHORIZED SUCH PAYMENTS. ACCORDINGLY, THE RETROACTIVE PAY WAS ERRONEOUSLY GRANTED. HOWEVER, COLLECTION OF THE AMOUNT MAY BE WAIVED UNDER 5 U.S.C. 5584.

TO MR. ROD KREGER:

THERE IS BEFORE OUR OFFICE FOR DETERMINATION A QUESTION AS TO THE LEGALITY OF THE PAYMENT OF APPROXIMATELY $700 IN FAVOR OF MR. WALTER WHITE, AN EMPLOYEE OF THE FEDERAL SUPPLY SERVICE, REGION X, REPRESENTING A RETROACTIVE PAYMENT OF SALARY UNDER THE CIRCUMSTANCES STATED BELOW.

THE RECORD INDICATES THAT ON FEBRUARY 4, 1970, THE AVAILABILITY OF SIX POSITIONS, WL-6, WAS ANNOUNCED TO BE FILLED BY PROMOTION FROM THE EXISTING WORK FORCE. UNDER YOUR AGENCY PROCEDURES A REGISTER WAS PREPARED WHICH RANKED THE 55 CANDIDATES WHO APPLIED FOR THE POSITIONS. THREE APPOINTMENTS WERE MADE FROM THE SEVEN EMPLOYEES WHO RANKED HIGHEST. THE OTHER THREE POSITIONS WERE FILLED BY EMPLOYEES WHO HAD PREVIOUSLY BEEN DOWNGRADED AS A RESULT OF A REDUCTION-IN-FORCE ACTION. IN MAY 1970, AFTER THE POSITIONS HAD BEEN FILLED, MR. WHITE AND THREE OTHER BLACK EMPLOYEES, WHO WERE RANKED 13 OR BELOW, FILED A COMPLAINT ALLEGING THAT THEY HAD BEEN DISCRIMINATED AGAINST. FOLLOWING PROTRACTED PROCEEDINGS AN ADMINISTRATIVE DETERMINATION WAS MADE TOWARD THE END OF 1971 TO PROMOTE MR. WHITE RETROACTIVELY TO APRIL 19, 1970. NO PROMOTION ACTION WAS TAKEN IN CONNECTION WITH THE COMPLAINTS OF THE OTHER THREE EMPLOYEES WHO ALLEGED THEY HAD BEEN DISCRIMINATED AGAINST. INASMUCH AS AN EXAMINATION BY OUR REPRESENTATIVES OF THE RECORD DID NOT INDICATE THE PAYMENT OF RETROACTIVE PAY WAS PROPERLY DOCUMENTED AND THE CERTIFYING OFFICER DID NOT REQUEST AN ADVANCE DECISION, ALTHOUGH THE PAYMENT WAS OF DOUBTFUL LEGALITY, WE REQUESTED AN ADMINISTRATIVE REPORT.

YOUR GENERAL COUNSEL BY LETTER OF APRIL 17, 1972, ADVISED THAT YOUR DIRECTOR OF CIVIL RIGHTS DETERMINED THAT MR. WHITE WAS THE CANDIDATE MOST QUALIFIED FOR PROMOTION TO THE WL-6 POSITION AND THAT HE WOULD HAVE BEEN PROMOTED BUT FOR THE EXISTENCE OF RACIAL DISCRIMINATION. ACCORDINGLY, THE RETROACTIVE PROMOTION WAS PROCESSED ON THE BASIS THAT IT WAS PROPER UNDER THE DECISIONS OF THE COURT OF CLAIMS IN CHAMBERS V UNITED STATES, 451 F.2D 1045 (1971), AND ALLISON V UNITED STATES, 451 F.2D 1035 (1971). WE HAVE BEEN NOTIFIED THAT THE FAILURE TO PROVIDE THE CERTIFYING OFFICER WITH THE PROPER DOCUMENTS WAS AN OVERSIGHT WHICH HAS NOW BEEN REMEDIED.

IN THE CHAMBERS CASE THE PLAINTIFF, MRS. MADRITH BENNETT CHAMBERS, A BLACK RESIDENT OF BECKLEY, WEST VIRGINIA, APPLIED FOR A POSITION WITH THE SOCIAL SECURITY ADMINISTRATION (SSA), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). AFTER SHE HAD BEEN DENIED A POSITION, SHE FILED A COMPLAINT WITH SSA ALLEGING THAT SHE HAD BEEN DENIED EMPLOYMENT BECAUSE OF RACIAL DISCRIMINATION. WHEN SSA FOUND THAT THERE HAD BEEN NO DISCRIMINATION, MRS. CHAMBERS REQUESTED A REVIEW BY THE DIRECTOR OF EQUAL EMPLOYMENT OPPORTUNITY FOR HEW. UPON REVIEW THE DIRECTOR FOUND THERE HAD BEEN DISCRIMINATION AND RECOMMENDED THAT MRS. CHAMBERS BE GIVEN CONSIDERATION FOR THE NEXT SUITABLE POSITION IN SSA FOR WHICH SHE QUALIFIED AND WAS AVAILABLE. THE PLAINTIFF FELT THE REMEDY WAS INADEQUATE AND APPEALED FURTHER TO THE CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW (BAR). SHE ASKED FOR IMMEDIATE EMPLOYMENT IN THE POSITION WHICH HAD BEEN UNLAWFULLY DENIED HER, RETROACTIVE AND WITH BACK PAY. BAR DIRECTED SSA TO OFFER MRS. CHAMBERS A GS-4 POSITION AT BECKLEY, WEST VIRGINIA, WITHIN 30 DAYS OF THE RECEIPT OF SUCH DECISION. HER REQUEST FOR RETROACTIVE APPOINTMENT AND BACK PAY WAS DENIED, HOWEVER, BECAUSE BAR CONSIDERED SUCH A REMEDY AS BEYOND ITS AUTHORITY.

THEREAFTER MRS. CHAMBERS FILED HER COURT SUIT SEEKING BACK PAY FOR THE PERIOD BETWEEN MARCH 17, 1967, THE DATE SHE WAS DENIED EMPLOYMENT, AND MARCH 9, 1970, THE DATE SHE FINALLY BECAME EMPLOYED. THE COURT HELD THAT THE PLAINTIFF WAS ENTITLED TO RECOVER SINCE IT HAD BEEN ADMINISTRATIVELY DETERMINED THAT THE PLAINTIFF SHOULD BE GIVEN A SPECIFIED POSITION BECAUSE SHE HAD BEEN DISCRIMINATED AGAINST AND THE COURT'S ONLY FUNCTION WAS TO ASCERTAIN THE PLAINTIFF'S RIGHTS WHICH FLOWED FROM THAT DETERMINATION. MRS. CHAMBERS WAS AWARDED MONEY DAMAGES IN THE FORM OF BACK PAY, LESS INTERIM EARNINGS, FOR THE PERIOD SPECIFIED.

IN THE ALLISON CASE THE PLAINTIFFS WERE FIFTEEN WAGE BOARD EMPLOYEES AT THE NATIONAL INSTITUTES OF HEALTH WHO ALLEGED SYSTEMATIC RACIAL DISCRIMINATION IN THE GRANTING OF PROMOTIONS IN THEIR UNIT OVER AN EXTENDED PERIOD OF YEARS. THE AGENCY ADMITTED DISCRIMINATION IN GROSS. THE PROCEEDINGS WERE SUSPENDED TO ALLOW THE PLAINTIFFS TO APPLY FOR ADMINISTRATIVE FINDINGS WHICH SHALL SHOW, PERSON BY PERSON, WHETHER SUCH PERSON WOULD HAVE BEEN PROMOTED, WHEN, AND TO WHAT GRADE OR GRADES IN THE LIGHT OF VARIOUS SURROUNDING CIRCUMSTANCES SUCH AS THE INDIVIDUAL'S QUALIFICATIONS.

PRIOR TO THE COURT CASES CITED, WE HELD IN 48 COMP. GEN. 502 (1969) THAT AN EMPLOYEE WHO HAD BEEN DENIED A PROMOTION DUE TO DISCRIMINATION COULD NOT BE AWARDED BACK PAY BECAUSE SUCH PAY WAS NOT AUTHORIZED BY 5 U.S.C. 7151, WHICH DIRECTS THE PRESIDENT TO USE HIS EXISTING AUTHORITY TO INSURE EQUAL EMPLOYMENT OPPORTUNITY WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN, OR IMPLEMENTING CIVIL SERVICE REGULATIONS (UNDER AUTHORITY DELEGATED BY EXECUTIVE ORDER NO. 11246, SEPTEMBER 24, 1965, NOW SUPERSEDED BY EXECUTIVE ORDER NO. 11478, AUGUST 13, 1969). IN THIS DECISION WE ALSO HELD THAT SUCH PAY WAS NOT AUTHORIZED UNDER THE "BACK PAY STATUTE," NOW CODIFIED IN 5 U.S.C. 5596. SUBSEQUENTLY IN 50 COMP. GEN. 581 (1971) WE CONSIDERED THE CASE OF AN EMPLOYEE WHO WAS CLASSIFIED AS GS- 9 ALTHOUGH SHE PERFORMED GS-11 DUTIES. WE HELD THAT BACK PAY COULD BE AUTHORIZED SINCE SUCH ACTION COULD BE VIEWED AS THE CORRECTION OF AN INTENTIONAL ILLEGAL APPOINTMENT OR MISCLASSIFICATION - A VIOLATION OF BOTH 5 U.S.C. 7151 AND GOVERNING REGULATIONS. AND GOVERNING REGULATIONS.

THE CIRCUMSTANCES IN MR. WHITE'S CASE ARE SIMILAR TO THOSE IN OUR 1969 DECISION RATHER THAN THOSE FOR WHICH BACK PAY MAY BE AUTHORIZED UNDER OUR 1971 DECISION. WHILE OUR OFFICE GIVES CAREFUL CONSIDERATION TO DECISIONS OF THE COURT OF CLAIMS IN RELATION TO MATTERS COMING BEFORE US, THE RESPONSIBILITY FOR DETERMINING WHETHER FUNDS APPROPRIATED BY THE CONGRESS ARE LEGALLY AVAILABLE FOR A PARTICULAR USE RESTS WITH OUR OFFICE. COMP. GEN. 648 (1935); 31 ID. 73 (1951); 45 ID. 700, 707 (1966). IN THE CHAMBERS CASE THE COURT HELD THAT THE PLAINTIFF WAS ENTITLED TO THE ONLY REMEDY THE COURT WAS AUTHORIZED TO GIVE, A MONEY JUDGMENT (451 F.2D 1054). THE COURT DID NOT CONFER AN EMPLOYEE STATUS OR BASE ITS JUDGMENT ON THE "BACK PAY STATUTE." IN OTHER WORDS THE DECISION WAS BASED ON THE COURT'S GENERAL AUTHORITY TO AFFORD A MONETARY REMEDY TO CLAIMANTS ON THE STRENGTH OF EXECUTIVE ORDERS AND ADMINISTRATIVE REGULATIONS NOT EXPRESSLY SO PROVIDING. THERE WAS NO SUGGESTION THAT THE CIVIL SERVICE COMMISSION WAS AUTHORIZED TO ISSUE REGULATIONS PROVIDING FOR BACK PAY IN DISCRIMINATION CASES. ACCORDINGLY, WE ARE OF THE OPINION THAT THE PAYMENT OF BACK PAY TO MR. WHITE WAS ERRONEOUS. CF. 39 COMP. GEN. 639, 640 (1960) AND COURT CASES CITED THEREIN.

IN VIEW OF THE ABOVE AND SINCE WE ARE NOT AWARE OF ANY LEGISLATION GRANTING BACK PAY TO FEDERAL EMPLOYEES IN DISCRIMINATION CASES PRIOR TO PUBLIC LAW 92-261, APPROVED MARCH 24, 1972, 86 STAT. 103, THE PAYMENT OF RETROACTIVE PAY TO MR. WHITE WAS ERRONEOUS. HOWEVER, UNDER THE CIRCUMSTANCES IT APPEARING THAT SUCH ERRONEOUS PAYMENT WAS MADE WITHOUT ANY FAULT ON THE PART OF THE EMPLOYEE OR ANY OTHER INTERESTED PARTY, THE COLLECTION OF SUCH AMOUNT IS HEREBY WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584.

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