Ainsworth v. United States

• Decision Date: 17 July 1968
• Docket Number: No. 269-65.,269-65.
• Citation: 185 Ct. Cl. 110,399 F.2d 176
• Parties: Royce AINSWORTH v. The UNITED STATES.
• Court: U.S. Claims Court

185 Ct. Cl. 110, 399 F.2d 176 (1968)

Royce AINSWORTH v. The UNITED STATES.

No. 269-65.

United States Court of Claims.

July 17, 1968.

COPYRIGHT MATERIAL OMITTED

James D. Hill, Washington, D. C., attorney of record, for plaintiff.

Sheldon J. Wolfe, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

LARAMORE, Judge.

This case was before us on the question of liability in Ainsworth v. United States, 180 Ct.Cl. 166 (1967), wherein we granted plaintiff's cross-motion for summary judgment and denied defendant's motion for summary judgment. We held that, under the reasoning of Born v. Allen, 110 U.S.App.D.C. 217, 291 F.2d 345 (1960) and Born v. United States, 155 Ct.Cl. 821 (1961), the Federal Aviation Agency (FAA) had denied plaintiff the procedural rights to which he was entitled.

There had been a reduction in force in the Washington, D. C. area, and plaintiff's function was transferred to Oklahoma City, Oklahoma. Plaintiff was given, but refused to accept, the opportunity to transfer with his function. Plaintiff was neither informed of, nor given an opportunity to pursue, his appeal rights before the Civil Service Commission. We found that, as a veteran who had served for two years as an Accident Investigation Specialist under a temporary appointment pending establishment of a register (TAPER), his appointment was for an "indefinite" term and, therefore, he was entitled to the procedural rights provided for in section 14 of the Veterans' Preference Act of 1944, ch. 287, 58 Stat. 387, 390-391, as amended, Act of August 19, 1964, P.L. 88-448, title II, § 202, 78 Stat. 486, 5 U. S.C. §§ 861, 863, 864 (1964 Ed.). We held that his separation was improper, and the case was returned to the trial commissioner¹ pursuant to Rule 47(c) (2) for a determination of the amount of recovery. Subsequently, on August 7, 1967, plaintiff was reemployed by the FAA as an Air Safety Investigator (General).

On August 31, 1967, the parties filed a Stipulation to Agreed Matters and to the Contentions of the Parties. They agreed that (1) plaintiff was restored to duty by the FAA on August 7, 1967; (2) the gross amount of back salary, inclusive of increments, to which plaintiff is entitled for the period of his separation from November 24, 1963 through August 6, 1967, totals $40,028.40; (3) the court should deduct from the $40,028.40 (a) the sum of $848.97, representing plaintiff's only outside earnings during the period he was separated, and (b) the sum of $275, representing premiums under the Federal Employees' Group Life Insurance Act of 1954, ch. 752, 68 Stat. 736, 5 U.S.C. §§ 2091-2103 (1964 Ed.) which should be credited to plaintiff in the Employees' Life Insurance Fund for the period November 24, 1963 through July 29, 1967; and (4) no amount should be deducted from said gross amount for crediting to plaintiff's Federal Employees' Health Benefits because pursuant to the Federal Personnel Manual, subchapter S8-5, Supp. 890-1, he elects not to have his prior enrollment reinstated retroactively. By deducting the $848.97 and $275, the parties agreed that, aside from the disputed items, plaintiff is entitled to a judgment of $38,904.43.

The parties stipulated that three items were unresolved. First, plaintiff claims that he is entitled to the sum of $2,042.28, representing the cash value of 240 hours of accumulated annual leave as of January 1, 1967, and 132 hours of current annual leave which he accrued between January 1 and August 6, 1967 (totaling 372 hours). Plaintiff asks the court to enter a judgment of $40,946.71 (the $38,904.43 agreed to in the stipulation plus the $2,042.28 cash value of annual leave). Defendant, as part of the stipulation, contends that the 372 hours of accumulated and accrued current annual leave can only be credited to plaintiff's leave account as of August 6, 1967.

Second, defendant contends that the $992.96 lump-sum cash payment which plaintiff received for 214 hours of accumulated and accrued annual leave as of the time of his separation should be deducted from the amount of the court's judgment for plaintiff.

Third, defendant contends that $915.07 should be deducted from the judgment as retroactive taxes (for the period November 24, 1963 through August 6, 1967) which defendant is obliged to collect pursuant to the Federal Insurance Contributions Act (FICA), as amended, 79 Stat. 382, 393, 26 U.S.C. §§ 3102, 3122 (Supp. II, 1964 Ed.).

Neither the stated total number of hours of accumulated and accrued leave, nor the amounts of money involved in the three items in controversy, are disputed by the parties. In essence, plaintiff contends that he is entitled to a judgment of $40,946.71 ($38,904.43 plus $2,042.28), and defendant contends that plaintiff is entitled to a net judgment of only $36,996.40 ($38,904.43 less $915.07 and less $992.96).

Following a pretrial conference both parties advised the trial commissioner that they would neither introduce additional evidence, nor file requested findings of fact, and that they would rely on the facts contained in the above-mentioned stipulation and their legal memoranda submitted in support of their respective positions. In addition, they asked the trial commissioner to close proof.

The trial commissioner closed proof by order, filed November 20, 1967. Prior thereto, plaintiff filed a motion for the entry of a partial summary judgment in the net amount of $36,996.40 (defendant admitted plaintiff was entitled to that amount). Defendant opposed the motion, and it was denied by the court, by order dated December 18, 1967.

On February 5, 1968, Trial Commissioner Stone filed his opinion and recommended conclusion of law wherein he found that (1) plaintiff is not entitled to the cash equivalent of his accumulated leave, but that he is entitled to a credit; and (2) that judgment should be entered for $36,996.40 after deducting both FICA taxes and the lump-sum payment for accumulated and current accrued annual leave paid to plaintiff at the time of his separation.

We agree with the commissioner's conclusions, but we reach the same results for different reasons.

I.

The threshold and dispositive question presented is whether plaintiff's recovery is limited by the Back Pay Act of 1966, P.L. 89-380, § 3, 80 Stat. 95.

Section 3 of the Back Pay Act reads, in pertinent part:

Each * * * employee of an agency who, on the basis of an administrative determination or a timely appeal, is found, on or after the date of enactment of this Act, by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action taken prior to, on, or after the date of the enactment of this Act, which has resulted in the withdrawal or reduction of all or any part of the pay, allowances, or differentials of such * * employee —

(1) shall be entitled, upon correction of such personnel action, to receive for the period for which such personnel action was in effect an amount commensurate with the amount of all or any part of the pay, allowances, or differentials, as applicable, which such * * * employee normally would have earned during such period if such personnel action had not occurred, less any amounts earned by him through other employment during such period; and

(2) for all purposes, shall be held and considered to have rendered service for such agency during such period, except that such * * * employee shall not be credited, by reason of the enactment of this Act, with leave in an amount which would cause any amount of leave to his credit to exceed any maximum amount of such leave authorized for such * * * employee by law or regulation. Emphasis supplied.

Plaintiff contends that the Act is inapplicable and that his recovery should be based on the Veterans' Preference Act of 1944, supra. We do not agree.

The effective date of the Act is March 30, 1966. It is applicable to plaintiff whose separation was prior to March 30, 1966 and who was found to have been improperly separated by our May 12, 1967 decision.

The main thrust of plaintiff's argument is that the Act is applicable only to erroneous personnel actions which are corrected in the "course of an adverse action appeal proceeding" by an act either of an agency, or the Civil Service Commission, or by the decision of a District Court in a reinstatement action. It is inapplicable, plaintiff argues, to those cases where an employee is forced to sue in the Court of Claims for back pay because a proceeding in this court is not "in the course of an adverse action appeal."

The Act does not refer either to a "reinstatement proceeding" or to a "decision in the course of an adverse appeal." It becomes applicable if a "proper authority" corrects an unwarranted personnel action. At issue, therefore, is whether this court is a "proper authority" which "corrects" improper personnel actions, within the meaning of section 3 of the Back Pay Act. We find that we are a "proper authority" and that our decisions do, in fact, correct improper personnel actions.

The Civil Service Commission's regulation, § 550.803(c), 5 C.F.R. ch. 1, subpart H (1967 Ed. — pocket part) defines the term "proper authority" as follows:

(c) The appropriate authority referred to in section 3 of the Act Back Pay Act of 1966 and this subpart is the department, office or official in a department, or court authorized under applicable law or regulation to correct, or to direct the correction of, the unjustified or unwarranted personnel action. Emphasis supplied.

Under this regulation each of two kinds of courts is a proper authority. A "proper authority" includes "a court authorized to direct the correction of" an unwarranted separation (i.e., a District Court) and, also, a court "authorized * * * to correct" improper personnel actions (i.e., the Court of Claims). A District Court by...