B-199459-OM, JAN 21, 1983

B-199459-OM, JAN 21, 1983

SUBJECT: JAMES E. BUTLER - ENTITLEMENT TO BACKPAY - REDUCTION IN FORCE - B-199459- O.M.

ACTING ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS YOUR FILE, Z-2841132, INVOLVING THE CLAIM OF MR. JAMES E. BUTLER FOR BACKPAY WHICH ALLEGEDLY AROSE DURING A REDUCTION-IN-FORCE ACTION. YOU WILL NOTE THAT BY LETTER DATED MAY 26, 1982, YOU INFORMED MR. BUTLER THAT INASMUCH AS HE HAD FILED SUIT IN THE U. S. COURT OF CLAIMS (NOW THE U. S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT), YOUR OFFICE WOULD TAKE NO FURTHER ACTION REGARDING HIS CLAIM FOR BACKPAY, BASED UPON THE DECISION OF THE MERIT SYSTEMS PROTECTION BOARD (MSPB), BUT LEAVE THE DETERMINATION OF ENTITLEMENT TO THE COURT.

IN ITS OPINION DATED NOVEMBER 12, 1982, COPY ATTACHED, THE COURT OF APPEALS AFFIRMED THE DECISION OF THE MSPB WHICH SUSTAINED MR. BUTLER'S SEPARATION FROM FEDERAL SERVICE AS A RESULT OF A REDUCTION IN FORCE (RIF). HOWEVER, THE COURT OF APPEALS DID NOT ADDRESS OR DECIDE THE ISSUE OF WHETHER MR. BUTLER IS ENTITLED TO BACKPAY. SINCE THE COMPTROLLER GENERAL OF THE UNITED STATES IS AN APPROPRIATE AUTHORITY UNDER THE APPLICABLE LAW AND REGULATIONS TO REQUIRE CORRECTION OF A PERSONNEL ACTION, AND BASED UPON REVIEW OF THE ENTIRE RECORD, WE HAVE CONCLUDED THAT MR. BUTLER IS ENTITLED TO BACKPAY FOR 25 DAYS, LESS ANY AMOUNTS HE MAY HAVE EARNED FROM OTHER EMPLOYMENT DURING THAT PERIOD.

A BRIEF STATEMENT OF FACTS, WITH PARTCULAR REFERENCE TO THE ISSUE OF ENTITLEMENT TO BACKPAY, IS AS FOLLOWS: MR. BUTLER WAS EMPLOYED BY THE NATIONAL PARK SERVICE, U. S. DEPARTMENT OF THE INTERIOR, AS AN ADMINISTRATIVE TECHNICIAN AT A YOUNG ADULT CONSERVATION CORPS CAMP OPERATED BY THE AGENCY. THE BUDGET OF THE PARK SERVICE WAS SUBSTANTIALLY REDUCED FROM THE PRIOR YEAR AND A REDUCTION IN FORCE WAS INSTITUTED. ITS OPINION AND ORDER DATED JANUARY 29, 1982, COPY ATTACHED, THE MSPB DETERMINED THAT SINCE THE CLAIMANT HAD BEEN EMPLOYED IN A TEMPORARY POSITION IN THE EXCEPTED SERVICE, THE AGENCY ERRONEOUSLY DETERMINED THAT HE WAS NOT ENTITLED TO 30 DAYS WRITTEN NOTICE OF HIS PROPOSED TERMINATION. THE MSPB BASED ITS CONCLUSION ON THE FACT THAT, SINCE MR. BUTLER'S TEMPORARY APPOINTMENT WAS FOR MORE THAN ONE YEAR, HE WAS IN TENURE GROUP III (5 C.F.R. SEC. 351.502) AND WAS, THEREFORE, ENTITLED TO 30 DAYS WRITTEN NOTICE UNDER 5 C.F.R. SEC. 351.801. THE MSPB ALSO DETERMINED THAT THE PARK SERVICE FAILED TO ESTABLISH A RETENTION REGISTER TO DETERMINE MR. BUTLER'S STATUS IN A REDUCTION IN FORCE. THE AGENCY STIPULATED THAT THE EMPLOYEE WAS NOT AFFORDED HIS 30 DAY NOTICE OF A REDUCTION IN FORCE AND WAS NOT COUNSELED REGARDING HIS RIF RIGHTS DUE TO AN AGENCY MISUNDERSTANDING OF THE PROPER RIF PROCEDURES.

NEVERTHELESS, THE MSPB CONCLUDED THAT THE AGENCY'S FAILURE TO PROVIDE MR. BUTLER WITH PROPER NOTICE OF THE RIF ACTION WAS NOT HARMFUL PROCEDURAL ERROR WITHIN THE MEANING OF 5 C.F.R. SEC. 1201.56, SINCE THE RECORD ESTABLISHED THAT IN THE ABSENCE OF THE ERROR, THE AGENCY WOULD NOT HAVE REACHED A DIFFERENT CONCLUSION AS TO THE RIF. THE BOARD ALSO STATED THAT THE EMPLOYEE WAS NOT SUBSTANTIALLY PREJUDICED BY THE AGENCY ERROR, ALTHOUGH HE WOULD HAVE REMAINED ON THE AGENCY PAYROLL FOR AN ADDITIONAL 25 DAYS IN THE ABSENCE OF THE ERROR. THE MSPB POINTED OUT THAT BACKPAY ISSUES ARE GENERALLY RESOLVED BETWEEN THE INDIVIDUAL EMPLOYEE AND HIS AGENCY BUT WHERE THIS CANNOT BE ACCOMPLISHED, UNDER 31 U.S.C. SEC. 71, THE DISPUTE IS TO BE SETTLED BY GAO. WE HAVE, THEREFORE, ASSUMED JURISDICTION OF THE ISSUE OF MR. BUTLER'S ENTITLEMENT TO BACKPAY.

THE BACK PAY ACT AUTHORITY OF 5 U.S.C. SEC. 5596 IS REMEDIAL IN NATURE, PROVIDING A REMEDY FOR WRONGFUL REDUCTION IN GRADE, REMOVALS AND SUSPENSIONS, AND OTHER UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS THAT HAVE RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE. (SEE TEXT OF STATUTE). THE IMPLEMENTING REGULATIONS ARE CONTAINED IN 5 C.F.R. PART 550, SUBPART H.

UNDER THE STATUTE, UPON CORRECTION OF THE PERSONNEL ACTION, THE EMPLOYEE IS ENTITLED TO RECEIVE FOR THE PERIOD THE PERSONNEL ACTION WAS IN EFFECT, AN AMOUNT EQUAL TO ALL OR ANY PART OF HIS PAY THAT HE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD. UNDER THE GOVERNING REGULATION, AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION CAN ONLY BE CORRECTED IF IT IS FOUND BY APPROPRIATE AUTHORITY THAT THE WITHDRAWAL OF THE PAY DUE AN EMPLOYEE WAS THE CLEAR AND DIRECT RESULT OF, AND WOULD NOT HAVE OCCURRED, BUT FOR THE ERRONEOUS PERSONNEL ACTION. THE COMPTROLLER GENERAL IS LISTED AS AN "APPROPRIATE AUTHORITY."

IN THE INSTANT CASE, THE PROCEDURAL ERROR COMMITTED AND ADMITTED BY THE PARK SERVICE IN NOT GIVING MR. BUTLER THE REQUIRED 30-DAY NOTICE OF THE IMPENDING REDUCTION IN FORCE CLEARLY CONSTITUTED AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION BY THE AGENCY. AS A RESULT OF SUCH PROCEDURAL ERROR, MR. BUTLER WAS REMOVED FROM THE AGENCY PAYROLL 25 DAYS PRIOR TO THE DATE HE WOULD HAVE BEEN REMOVED HAD HE BEEN PROVIDED THE REQUISITE 30-DAY NOTICE. WE CONCLUDE THAT THE EMPLOYEE IS ENTITLED TO BACKPAY FROM THE DATE OF HIS DISCHARGE TO THE DATE HE WOULD HAVE BEEN DISCHARGED HAD HE BEEN GIVEN THE PROPER 30-DAY NOTICE OF THE REDUCTION IN FORCE.

YOU ARE THEREFORE REQUESTED TO TAKE THE ACTION REQUIRED, EITHER DIRECTLY OR THROUGH THE AGENCY, TO RETROACTIVELY ADJUST MR. BUTLER'S SALARY IN ACCORDANCE WITH THE FOREGOING.