B-213690, APR 16, 1984

B-213690, APR 16, 1984

DIGEST: VETERANS ADMINISTRATION EMPLOYEE'S CLAIM FOR BACKPAY FOR PERIOD OF SUSPENSION INCIDENT TO ARREST ON CRIMINAL CHARGES IS DENIED. ALTHOUGH CHARGES WERE EVENTUALLY DISMISSED, AGENCY'S INDEFINITE SUSPENSION HAD BEEN AFFIRMED BY FINAL ORDER OF THE MERIT SYSTEMS PROTECTION BOARD. SINCE THERE HAS BEEN NO FINDING UNDER BACK PAY ACT (5 U.S.C. SEC. 5596) BY APPROPRIATE AUTHORITY THAT SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, AND SINCE THIS OFFICE WILL NOT REVIEW DECISIONS AND ORDERS OF MSPB, THERE IS NO LEGAL BASIS TO CONSIDER CLAIM FOR BACKPAY.

ARTHUR DRAKE - BACKPAY FOR PERIOD OF SUSPENSION - MSPB FINAL DECISION:

THIS DECISION IS IN RESPONSE TO A REQUEST FROM THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 31, CONCERNING THE CLAIM OF MR. ARTHUR DRAKE FOR RETROACTIVE REINSTATEMENT AND BACKPAY IN CONNECTION WITH A PERIOD OF SUSPENSION FROM HIS EMPLOYMENT BY THE VETERANS ADMINISTRATION (VA). THIS DECISION HAS BEEN HANDLED AS A LABOR-RELATIONS MATTER UNDER OUR PROCEDURES CONTAINED IN PART 22, TITLE 4, CODE OF FEDERAL REGULATIONS (1983), WHICH REQUIRES THAT ALL INTERESTED PARTIES BE SERVED WITH COPIES OF THE SUBMISSION.

MR. DRAKE, AN EMPLOYEE OF THE VA, WAS NOTIFIED ON AUGUST 13, 1981, OF A PROPOSED INDEFINITE SUSPENSION PENDING RESOLUTION OF CRIMINAL CHARGES IN CONNECTION WITH HIS ARREST ON AUGUST 11, 1981, AT THE WADE PARK UNIT OF THE VA MEDICAL CENTER IN CLEVELAND, OHIO. MR. DRAKE WAS PLACED ON INDEFINITE SUSPENSION FROM DUTY AND PAY STATUS EFFECTIVE AUGUST 22, 1981, AND ADVISED OF HIS RIGHT TO APPEAL THE SUSPENSION ACTION TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB). MR. DRAKE APPEALED THE SUSPENSION ACTION TO THE MSPB WHICH AFFIRMED THE INDEFINITE SUSPENSION ON DECEMBER 18, 1981, DECIDING THAT THE AGENCY'S ACTION, "WAS FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE FEDERAL SERVICE." THERE BEING NO APPEAL TAKEN, THE MSPB'S DECISION BECAME FINAL ON JANUARY 22, 1982. ON MAY 7, 1982, MR. DRAKE'S ATTORNEY PROVIDED THE CLEVELAND VA MEDICAL CENTER WITH A COPY OF THE JOURNAL ENTRY FROM THE COUNTY COMMON PLEAS COURT APPARENTLY DISMISSING THE CRIMINAL CHARGES ON MAY 6, 1982. SUBSEQUENT TO A REVIEW OF HIS CASE FILE, THE MEDICAL CENTER APPROVED MR. DRAKE'S RETURN TO DUTY EFFECTIVE OCTOBER 12, 1982., RETROACTIVE TO MAY 7, 1982.

MR. DRAKE NOW CONTENDS BEFORE THIS OFFICE THAT IF HE WAS INNOCENT OF ALL CHARGES ON MAY 7, 1982, HE WAS ALSO INNOCENT ON AUGUST 11, 1981, AND, THUS, HE SHOULD BE RETROACTIVELY RESTORED TO DUTY IN A PAY STATUS TO AUGUST 11, 1981. ACCORDINGLY, HE CLAIMS BACKPAY FOR THE PERIOD OF THE INDEFINITE SUSPENSION BETWEEN AUGUST 11, 1981, AND MAY 7, 1982.

MR. DRAKE'S ENTITLEMENT TO BACKPAY FOR THE PERIOD OF HIS SUSPENSION REQUIRES A FINDING THAT THE SUSPENSION WAS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF THE BACK PAY ACT, 5 U.S.C. SEC. 5596(B) (1982), WHICH STATES:

"(B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL OR AN ADMINISTRATIVE DETERMINATION (INCLUDING A DECISION RELATING TO AN UNFAIR LABOR PRACTICE OR A GRIEVANCE) IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW, RULE, REGULATION, OR COLLECTIVE BARGAINING AGREEMENT, TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT -

"(I) AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, WHICH THE EMPLOYEE NORMALLY WOULD HAVE EARNED OR RECEIVED DURING THE PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED ***."

THE APPROPRIATE AUTHORITY UNDER SECTION 5596 IN MR. DRAKE'S CASE WAS THE VETERANS ADMINISTRATION WITH THE RIGHT OF APPEAL TO THE MSPB. SEE 5 C.F.R. SEC. 550.803 AND 5 C.F.R. SEC. 1201.3(A)(3). MR. DRAKE APPEALED HIS SUSPENSION TO THE MSPB WHICH AFFIRMED THE AGENCY'S INDEFINITE SUSPENSION BY FINAL ORDER OF JANUARY 22, 1982. THERE IS NO AUTHORITY FOR THE GENERAL ACCOUNTING OFFICE TO REVIEW DECISIONS AND ORDERS OF THE MERIT SYSTEMS PROTECTION BOARD. GREGORIO NATIVIDAD, B-213316, FEBRUARY 23, 1984; JACK M. HANING, B-211388, JANUARY 17, 1984, 64 COMP.GEN. .

DURING OUR REVIEW OF THE RECORD, WE NOTED THAT THE JOURNAL ENTRY OF THE COURT OF COMMON PLEAS, WHICH DOCUMENTED THE DISMISSAL OF THE CHARGES AGAINST MR. DRAKE, CARRIED THE DATE MAY 6, 1982. HOWEVER, THAT DATE APPEARS TO BE THE DATE ON WHICH THIS JOURNAL ENTRY WAS FILED WITH THE CLERK, NOT THE ACTUAL DATE ON WHICH THE CHARGES WERE DISMISSED. UPON REVIEWING THE JOURNAL ENTRY ITSELF, IT APPEARS THAT THE CHARGES WERE ACTUALLY DISMISSED ON APRIL 29, 1982, NOT MAY 6, 1982. IF THAT IS CORRECT, THEN MR. DRAKE'S ENTITLEMENT TO BACKPAY SHOULD BEGIN ON APRIL 30, 1982, NOT MAY 7, 1982. THE VA MEDICAL CENTER SHOULD ASCERTAIN WHETHER OUR INTERPRETATION OF THE JOURNAL ENTRY IS CORRECT, AND, IF IT IS, MR. DRAKE'S BACKPAY SHOULD BE ADJUSTED SO THAT IT BEGINS ON APRIL 30, 1982.

ACCORDINGLY, SINCE NO APPROPRIATE AUTHORITY HAS DETERMINED THAT MR. DRAKE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION INCIDENT TO HIS CLAIM, HE IS NOT ENTITLED TO ADDITIONAL BACKPAY, EXCEPT TO THE EXTENT OUTLINED ABOVE.