B-229264, Feb 23, 1988

B-229264, Feb 23, 1988

DIGEST: The Merit Systems Protection Board (MSPB) found that an agency had improperly removed an employee and granted him reinstatement with backpay. During the period of removal, the employee was subsequently arrested several times and, as a result of one arrest, was incarcerated. The MSPB seeks our Office's advisory opinion on the proper period of backpay. We conclude that the employee should be considered "UNAVAILABLE" for work only during those periods when he was actually incarcerated. believe it is too speculative to determine that the agency would have suspended and removed the employee upon one of his arrests during this period.

Mr. Llewellyn M. Fischer:

This is in response to your request of October 27, 1987, for an advisory opinion on an issue involving backpay in Marshall v. Government Printing Office, MSPB Docket No. DC075281C9051. The issue on which you seek our advice is whether the Government Printing Office (GPO) is required to award backpay from the date of the improper removal of the employee to the date that the employee was first arrested or to the later date that the employee was incarcerated on a felony conviction and no longer available for work. For the following reasons, we conclude that GPO should grant the employee backpay up to the date he was incarcerated.

BACKGROUND

On August 29, 1981, GPO removed Mr. Herman Marshall from his position for falsehood, failure to report for duty without having received prior approval, and leaving his post of duty without prior approval. After various legal proceedings, the MSPB ultimately reversed his removal, ordered GPO to reinstate Mr. Marshall, and awarded him backpay. Marshall v. Government Printing Office, 31 M.S.P.R. 303 (1986).

During the time between his removal and its reversal by the MSPB, Mr. Marshall was arrested on several occasions and was incarcerated for brief periods of time in 1984 and 1985. Mr. Marshall was first arrested on various drug and weapons charges on March 30, 1982, but these charges were nol prossed (not prosecuted) on June 24, 1983. Mr. Marshall was arrested a second time and charged with distribution of heroin on October 11, 1984. He pled guilty to this charge and was sentenced to 4 to 12 years in prison on August 20, 1985. He was incarcerated under this sentence on October 2, 1985.

Mr. Marshall concedes that he is not entitled to backpay after he was incarcerated on October 2, 1985, but he contends that he should be paid for the period of March 30, 1982, when he was first arrested, to October 2, 1985. Since GPO has continued to refuse to pay him backpay for this period, he filed a petition for enforcement of the MSPB's decision of August 6, 1986, asserting that GPO had not provided him with the full backpay award to which he is entitled on the basis of the MSPB decision.

This petition for enforcement came before an Administrative Judge of the MSPB. In her Compliance Recommendation of June 24, 1987, in Mr. Marshall's case, at 3, the Administrative Judge stated:

"GPO may not now speculate on what the disciplinary actions it may have imposed on the appellant Mr. Marshall to avoid back pay. It is not that the appellant was UNAVAILABLE for work during this entire period, rather, the agency (GPO) is attempting to make him 'unavailable' for work by its speculative adverse action. To the extent that the agency would impose a retroactive adverse action on the appellant, it must initiate an appropriate adverse action, which may be the subject of a new appeal. See Washington v. Tennessee Valley Authority, 22 M.S.P.R. 377 (1984)."

The Administrative Judge found that GPO was not in compliance with the MSPB enforce its final decision in this case. As noted above, the MSPB then referred this case to our Office for an advisory opinion.

The GPO contends that Mr. Marshall would have been UNAVAILABLE for the performance of his duties on and after his first arrest on March 30, 1982, because, in accord with its policy, GPO would have indefinitely suspended Mr. Marshall due to his arrest for alleged crimes for which a sentence of imprisonment could be imposed. In addition, his unavailability for the performance of his duties was for reasons other than those related to or caused by the improper removal. Thus, under 5 C.F.R. Sec. 550.805(c)(2), GPO concludes that it cannot award Mr. Marshall backpay for the period after his first arrest on March 30, 1982.

The agency also contends that, although the charges of the first arrest were not prosecuted, the agency could still sustain an adverse action based on them by proving the underlying misconduct that led to the arrest by a preponderance of the evidence. Additionally, GPO states that Mr. Marshall was arrested for a second time and charged with distribution of heroin on October 11, 1984. He later pled guilty to these charges. The GPO argues that after the second arrest, it would have determined that reasonable cause existed to conclude that Mr. Marshall had committed a crime for which a sentence of imprisonment might be imposed and would have indefinitely suspended Mr. Marshall. Thus, GPO contends that the indefinite suspension it would have imposed after the second arrest would terminate its backpay liability as of October 11, 1984, the date of the second arrest. Finally, we note that GPO's brief states that in light of the Administrative Judge's Compliance Recommendation in this case, and pending the MSPB decision, GPO has commenced a retroactive adverse action against Mr. Marshall based on his arrests and convictions after his improper removal.

In response, Mr. Marshall, through his counsel, contends that he should be considered as "available" for the performance of his duties after his first arrest on March 30, 1982, because GPO does not have a clear policy on indefinite suspensions after arrest, and in any event, the charges were not prosecuted. In addition, he contends that any "unavailability" at any time for the performance of his duties was for reasons related to or caused by the improper removal. Thus, he concludes that under 5 C.F.R. Sec. 550.805(c)(2) (1987), GPO is required to award him backpay.

Mr. Marshall also contends that an agency cannot sustain an adverse action on the basis of an arrest where the charges were not prosecuted. Finally, he contends that assuming the agency could have indefinitely suspended him legally after his second arrest on October 11, 1984, which ultimately resulted in a conviction, GPO would still be liable for his backpay up to that date.

OPINION

The Back Pay Act, 5 U.S.C. Sec. 5596(b) (1982), provides in relevant part that an employee who has undergone an unjustified or unwarranted personnel action:

"(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, less any amounts earned by the employee through other employment during that period. ..."

The Office of Personnel Management's (OPM) regulations in 5 C.F.R. Sec. 550.805 (1987) which implement this statute provide, in relevant part, that:

"(b) No employee shall be granted more pay, allowances, and differentials under section 5596 of title 5, United States Code, and this subpart than he or she would have been entitled to receive if the unjustified or unwarranted personnel action had not occurred.

"(c) Except as provided in paragraph (d) of this section, in computing the amount of back pay under section 5596 of title 5, United States Code, and this subpart, an agency may not include--

"(1) Any period during which an employee was not ready, willing, and able to perform his or her duties because of an incapacitating illness or injury; or

"(2) Any period during which an employee was unavailable for the performance of his or her duties for reasons other than those related to, or caused by, the unjustified or unwarranted personnel action.

"(d) In computing the amount of back pay under section 5596 of title 5, United States Code, and this subpart, an agency shall grant, upon request of an employee, any sick or annual leave available to the employee for a period of incapacitation if the employee can establish that the period of incapacitation was the result of illness or injury."

We believe that Mr. Marshall can be considered "unavailable" for work only during those periods when he was actually incarcerated. We agree with the MSPB Administrative Judge that it is too speculative to determine whether GPO would have suspended and removed the employee upon his arrest in March 1982 or upon his arrest in October 1984. Unless GPO is able to sustain a retroactive adverse action based upon either his first or second arrests, we conclude that Mr. Marshall would be considered available for work and entitled to backpay up to the date of his felony incarceration in October 1985.

We also note, however, that there appear to be two periods of illness, July 20, 1982 to February 20, 1983, and March 21, 1984 to May 9, 1984, for which Mr. Marshall, upon request, could be granted sick or annual leave, if any is available. See 5 C.F.R. Sec. 550.805(d) (1987). Lastly, we note that Mr. Marshall was also incarcerated for brief periods in late 1984 and early 1985. See his answer to question # 14 on the Agency's Interrogatories. Should the MSPB decide that Mr. Marshall is entitled to backpay to the date of his incarceration on October 2, 1985, those earlier periods of incarceration should be deducted from the backpay award.

As you requested, we are providing a copy of this advisory opinion to the attorneys for the parties involved. We would appreciate it if you would inform us of the MSPB's decision in this matter.