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B-190767(DAS) 1 (1979-11-21)

handle is hein.gao/gaobacupm0001 and id is 1 raw text is: GAO United States General Accounting Office Office of Washington, DC 20548 General Counsel In Reply Referto: B-190767(DAS) Nove:ber 21, 1979 Mr. David Eisenberg Trial Attorney Commercial Litigation Branch U.S. Department of Justice Dear Mr. Eisenberg: Subject: Tohnnie H. Winters v. United States Court of Claims No. 286-79C We refer to your letter of November 7, 1979, asking for our comments concerning Plaintiff's Motion for Summary Judgment in the above-mentioned case. The remedy of backpay is available when the agency commits an unjustified or unwarranted personnel action. We have held that an act of omission may constitute an unjustified personnel action. 54 Comp. Gen. 1071 (1975). The definition of an unjustified or unwarranted personnel action is set forth in 5 C.F.R. § 550.802(c) (1978) which provides: '.'(c) 'An unjustified or unwarranted personnel action' means an act of commission (i.e., an action taken under authority granted to an authorized official) or of omission (i.e., nonexercise of proper authority by an authorized official) which it is subsequently determined violated or improperly applied the require- ments of a nondiscretionary provision, as defined herein, and thereby resulted in the withdrawal, reduction, or denial of all or any part of the pay, allowances, or differential, as used here, otherwise due an employee. The words 'personnel action' in- clude personnel actions and pay actions (alone or in combination). 5 C.F.R. § 550.802(d) (1978) defines a nondiscretionary provision as: (d)* * any provision of law, Executive order, regulation, personnel policy issued by an

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