B-179422, SEP 27, 1973

B-179422, SEP 27, 1973

DECISION SUSTAINING, UPON REVIEW, SETTLEMENT OF JUNE 21, 1973, DENYING HIS CLAIM FOR BACK PAY FROM THE DATE OF HIS SEPARATION FROM HIS POSITION WITH THE ATLANTA ARMY DEPOT, JULY 30, 1971, UNTIL THE DATE OF HIS REINSTATEMENT, OCTOBER 19, 1972.

TO MR. RICHARDS PLAGWITZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 4, 1973, REQUESTING RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF JUNE 21, 1973, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FROM THE DATE YOU WERE SEPARATED FROM YOUR POSITION WITH THE ATLANTA ARMY DEPOT, JULY 30, 1971, UNTIL THE DATE OF YOUR REINSTATEMENT, OCTOBER 19, 1972.

THE RECORD INDICATES THAT, EFFECTIVE JULY 30, 1971, YOU WERE SEPARATED FROM YOUR POSITION WITH THE ATLANTA ARMY DEPOT FOR INEFFICIENCY. UPON APPEAL THE DEPARTMENT OF THE ARMY DIRECTED THAT YOUR SEPARATION BE CANCELED. IN THIS REGARD A NOTIFICATION OF PERSONNEL ACTION DATED OCTOBER 19, 1972, INDICATES THAT YOUR SEPARATION FOR INEFFICIENCY WAS CANCELED, THAT YOU WERE TO BEGIN ACTIVE DUTY ON OCTOBER 19, 1972, AND THAT YOU WERE ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596. THIS NOTICE WAS AMENDED ON OCTOBER 31, 1972, TO DELETE THE STATEMENT THAT YOU WERE ENTITLED TO BACK PAY AND TO PROVIDE THAT RETROACTIVE PAY WAS NOT AUTHORIZED PENDING A LEGAL DETERMINATION AS TO YOUR PAY STATUS DURING THE REMOVAL PERIOD. THIS NOTICE WAS FURTHER AMENDED ON NOVEMBER 28, 1972, TO PROVIDE THAT YOU WERE NOT ENTITLED TO BACK PAY FOR THIS PERIOD BECAUSE YOU HAD RECEIVED DISABILITY BENEFITS FROM THE OFFICE OF FEDERAL EMPLOYEES' COMPENSATION (OFEC), YOU WERE NOT READY AND ABLE TO PERFORM YOUR DUTIES DUE TO AN INCAPACITATING ILLNESS, AND YOU WERE UNAVAILABLE TO PERFORM YOUR JOB AND THIS UNAVAILABILITY WAS NOT RELATED TO, OR CAUSED BY, THE REMOVAL ACTION.

THE RECORD FURTHER INDICATES THAT YOU RECEIVED DISABILITY COMPENSATION FROM OFEC FOR THE PERIOD OF AUGUST 1, 1971, THROUGH SEPTEMBER 20, 1972. MOREOVER, YOU DID NOT RETURN TO WORK AT THE TIME OF YOUR REINSTATEMENT, BUT REQUESTED SICK LEAVE EFFECTIVE OCTOBER 19, 1972. YOU USED AND RECEIVED FULL COMPENSATION FOR YOUR ACCUMULATED SICK AND ANNUAL LEAVE FROM THAT DATE UNTIL YOU RETIRED FOR DISABILITY, EFFECTIVE APRIL 30, 1973.

CITING 46 COMP. GEN. 139 (1966), OUR SETTLEMENT LETTER OF JUNE 21, 1973, CONCLUDED THAT YOU ARE NOT ENTITLED TO BACK PAY FOR THE PERIOD YOU WERE SEPARATED FROM EMPLOYMENT AND RECEIVING DISABILITY COMPENSATION, BECAUSE YOU WERE DISABLED AND UNABLE TO WORK IN THE POSITION FROM WHICH YOU WERE WRONGFULLY DISCHARGED. HOWEVER, YOU STATE THAT YOU WERE REMOVED FOR INEFFICIENCY, NOT DISABILITY TO PERFORM THE DUTIES OF YOUR POSITION, AND THAT THROUGHOUT THE APPEAL OF YOUR REMOVAL NO CONSIDERATION WAS GIVEN TO YOUR PHYSICAL ABILITY TO PERFORM THE DUTIES OF YOUR POSITION. YOU ALSO STATE THAT THERE WAS A LEGALLY BINDING AGREEMENT BETWEEN THE ATLANTA ARMY DEPOT AND YOU, ENTITLING YOU TO BACK PAY. YOU FURTHER STATE THAT YOU WERE ADVISED BY A LETTER FROM A SPECIAL EXAMINER FOR OFEC THAT THE ATLANTA ARMY DEPOT HAD TO PAY YOU BACK PAY AND DEDUCT ONLY THE AMOUNT YOU HAD RECEIVED DURING THIS PERIOD AS DISABILITY COMPENSATION.

SECTION 5596 OF TITLE 5, U.S.C. AUTHORIZES THE PAYMENT OF BACK PAY TO AN EMPLOYEE WHO HAS UNDERGONE AN UNJUSTIFIED PERSONNEL ACTION THAT RESULTS IN THE REDUCTION OF HIS PAY, ALLOWANCES, OR DIFFERENTIALS. THE MEASURE OF BACK PAY UPON THE CORRECTION OF THE UNJUSTIFIED PERSONNEL ACTION IS THE AMOUNT OF PAY THE EMPLOYEE NORMALLY WOULD HAVE EARNED IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY THE EMPLOYEE THROUGH OTHER EMPLOYMENT DURING THAT PERIOD. THE STATUTE ALSO PROVIDES THAT THE CIVIL SERVICE COMMISSION SHALL PRESCRIBE REGULATIONS IMPLEMENTING THESE PROVISIONS.

THE IMPLEMENTING REGULATION, 5 CFR 550.804, PRESCRIBED BY THE COMMISSION UNDER THIS STATUTE PROVIDES IN PART AS FOLLOWS:

"(D) IN COMPUTING THE AMOUNT OF BACK PAY UNDER THIS SECTION AND SECTION 5596 OF TITLE 5, UNITED STATES CODE, THE AGENCY MAY NOT (1) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS NOT READY AND ABLE TO PERFORM HIS JOB BECAUSE OF INCAPACITATING ILLNESS, EXCEPT THAT THE AGENCY SHALL GRANT UPON THE REQUEST OF THE EMPLOYEE ANY SICK OR ANNUAL LEAVE TO HIS CREDIT TO COVER THE PERIOD OF INCAPACITY BY REASON OF ILLNESS, OR (2) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS UNAVAILABLE FOR THE PERFORMANCE OF HIS JOB AND HIS UNAVAILABILITY WAS NOT RELATED TO, OR CAUSED BY, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION."

DECISIONS OF THE UNITED STATES COURT OF CLAIMS AND THIS OFFICE HAVE CONSISTENTLY HELD THAT RECOVERY OF BACK PAY FOR A PERIOD OF WRONGFUL SEPARATION REQUIRES A SHOWING THAT THE EMPLOYEE WAS READY, WILLING, AND ABLE TO PERFORM HIS JOB DURING THE PERIOD OF SEPARATION. LECH V. UNITED STATES, 187 C. CLS. 471 (1969); EVERETT V. UNITED STATES, 169 C. CLS. 11 (1965); 46 COMP. GEN. 139 (1966); B-172128, APRIL 12, 1971.

AS INDICATED ABOVE THE RECORD INDICATES THAT DURING THE PERIOD OF YOUR REMOVAL YOU RECEIVED DISABILITY COMPENSATION ON THE BASIS OF YOUR PHYSICAL INABILITY TO PERFORM THE DUTIES OF YOUR POSITION. MOREOVER, UPON REVERSAL OF YOUR REMOVAL ACTION YOU DID NOT RETURN TO WORK AND YOU RETIRED FOR DISABILITY, EFFECTIVE APRIL 30, 1973, WHEN YOUR ANNUAL AND SICK LEAVE WAS EXHAUSTED. ON THE BASIS OF THESE FACTS, WE CONCLUDE THAT YOU WERE NOT ABLE TO PERFORM THE DUTIES OF YOUR POSITION DURING THE PERIOD OF YOUR REMOVAL. THE FACT THAT YOUR REMOVAL WAS FOR INEFFICIENCY RATHER THAN DISABILITY OR THAT YOUR PHYSICAL ABILITY TO PERFORM YOUR JOB WAS NOT CONSIDERED AT THE TIME OF YOUR SEPARATION OR APPEAL OF THIS ACTION IS NOT MATERIAL TO THE DETERMINATION OF WHETHER YOU WERE ABLE TO PERFORM YOUR JOB DURING THE PERIOD OF SEPARATION FOR THE PURPOSE OF ENTITLEMENT TO BACK PAY UNDER 5 U.S.C. 5596.

YOU ALSO CONTEND THAT YOU HAD A LEGALLY BINDING AGREEMENT WITH THE ATLANTA ARMY DEPOT ENTITLING YOU TO BACK PAY UNDER 5 U.S.C. 5596. HOWEVER, IT APPEARS THAT SUCH AGREEMENT WAS MADE PRIOR TO THE DETERMINATION THAT YOU WERE NOT ABLE TO PERFORM YOUR JOB DURING THE PERIOD OF SEPARATION. SINCE THE AGREEMENT WAS BASED ON INCOMPLETE FACTS AND IT WAS LATER DETERMINED THAT YOU WERE NOT ABLE TO PERFORM YOUR JOB DURING THE PERIOD OF YOUR REMOVAL, IT WAS AN ERRONEOUS AGREEMENT AND DOES NOT PROVIDE A BASIS FOR YOU TO RECOVER BACK PAY. IN THIS CONNECTION IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942); 44 ID. 337 (1964); 46 ID. 348 (1966).

THE LETTER FROM OFEC DATED OCTOBER 16, 1972, TO WHICH YOU REFER, WAS ALSO WRITTEN PRIOR TO THE DETERMINATION THAT YOU WOULD NOT BE ABLE TO RECOVER BACK PAY FOR THE PERIOD OF YOUR SEPARATION. MOREOVER, THIS LETTER DOES NOT STATE THAT YOU ARE ENTITLED TO BACK PAY, BUT BASED ON THE BELIEF THAT YOU WOULD RECEIVE BACK PAY FOR THE PERIOD IN QUESTION, IT STATES THAT YOUR DISABILITY COMPENSATION HAD BEEN TERMINATED AND THAT ANY DISABILITY COMPENSATION RECEIVED BY YOU FOR A PERIOD FOR WHICH YOU RECEIVED BACK PAY WOULD BE FOR RECOVERY. IN THIS REGARD OFEC HAS NO AUTHORITY TO MAKE A DETERMINATION OF YOUR ENTITLEMENT TO BACK PAY UNDER 5 U.S.C. 5596. SEE 5 CFR 550.803. IN THIS CONNECTION WE HAVE BEEN INFORMALLY ADVISED THAT WHEN OFEC WAS ADVISED THAT YOU WERE NOT DETERMINED TO BE ELIGIBLE FOR BACK PAY, IT CANCELED ITS COLLECTION ACTION FOR PAYMENTS PREVIOUSLY MADE AND PAID YOU COMPENSATION FOR THE PERIOD SEPTEMBER 21 TO OCTOBER 18, 1972.

IN VIEW OF THE ABOVE, THE SETTLEMENT OF JUNE 21, 1973, IS SUSTAINED.